03/25/14 – Trevor Timm – The Scott Horton Show

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All right you guys, welcome back to the show here.
I'm Scott Horton, this is my show, the Scott Horton Show.
Man, there's a bunch of news I didn't get to today, oops, oh well.
Next up is Trevor Tim.
He used to be at the Electronic Frontier Foundation, now he's full time with the Freedom of the Press Foundation, which is at pressfreedomfoundation.org, and they got Glenn Greenwald and Daniel Ellsberg and Edward Snowden and I guess Jessen Radek, I think, on the board over there doing a real good job.
And here he is writing in the Guardian, the House's NSA bill could allow more spying than ever.
You call this reform?
I don't think I will anymore, anyway, welcome to the show Trevor, how are you doing?
Yeah, how about yourself?
I'm doing great, I appreciate you joining us.
Yeah, no, I didn't call reform, in fact, the first positive tweet I saw about the Obama proposal and the Rogers proposal here for NSA reform, my first reaction was, well, I'll wait until Marcy Wheeler says that it's cool, otherwise I don't believe in anything that any of these guys say.
So that's the deal, right, there are two big new bills, one by Mike Rogers, the chair of the House Intelligence Committee, and the other by the President, I guess that is, I don't know if that one's been seen in its entirety yet, but soon to be introduced.
I guess, go ahead, take us through them and tell us what's so not to believe about them.
Yeah, so there's basically one bill and one proposal, the one bill, which is the one by House Intelligence Committee Chairman Mike Rogers, who has been basically going around and making stuff up about Edward Snowden on the Sunday talk shows for the past few months about him being a Russian intelligence agent with absolutely no proof this is going on, and actually other intelligence officials have quietly told news organizations that Mike Rogers just doesn't know what he's talking about, or he knows what he's talking about and he's purposely misleading and lying.
But his bill claims to be this reform bill, you know, he's obviously been one of the biggest NSA defenders, and what it does is it ends one practice, which is the bulk collection of everybody's phone metadata, but on the other end, it allows them to have much more leeway to search for information from the phone companies than they would have even had under this program.
Under the phone records program, the NSA, at least in theory, is only supposed to search information if there is, or search phone numbers if there is a connection to terrorism, if they can prove it by what they call reasonable articulable suspicion, but what they do in this bill is actually allow them to go to the phone companies on a much lesser standard.
They only need reasonable suspicion that a person is an agent of a foreign power or is associated with one or may know one, meaning that the standard for what they use this information for is far, far lower.
So what could end up happening is that the government doesn't have the power to bulk collect everybody's data up front, but what they can do on the back end is search it much more regularly for stuff that has nothing to do with terrorism, and that's why I think it could actually end up violating the privacy rights of Americans in more ways than the current NSA program does now.
The President's bill now is somewhat different.
I always thought, and I should have the language in front of me, it's easy enough to search I guess, but I thought that the Foreign Intelligence Surveillance Act, the FISA Act of 1978, that in the first place what it had always done was provide this FISA court with the authority to approve warrants on exactly that lower standard of evidence, a reasonable belief rather than a probable cause, as long as the reasonable belief is that this person is connected either to a foreign government or a foreign terrorist group, which for those purposes is a foreign government, and then what was so horrible, and that's already of course a giant violation of the Fourth Amendment in the first place, which makes no such exemptions, but anyway, then you know what Bush's spying program did and what the FISA Amendments Act of 2008 did was provide for all this bulk spying and going after people en masse.
So now I'm kind of confused because it sounds like what you're saying is, I guess the phone companies will have the data and the government will only be able to go and look at it if they have a reasonable belief that this person is connected to either a terrorist group or a foreign power, which again I thought was already the standard in the first place.
So help me out.
Yeah, so it is really confusing because that was the standard beforehand for individual FISA warrants.
So the government could go to the FISA court and say, this particular person, I want to conduct surveillance on him because I have what their version of probable cause was, which was higher than reasonable suspicion but lower than what we imagined it to be when they get regular warrants.
But at least in that situation, they would go to the court first and it would only be about that one individual.
In this situation, if the Rogers bill were to pass, they could go to the phone companies without going to a judge first.
The standard would be reasonable suspicion, which is the lowest standard possible.
And when we're talking about agents of a foreign power or people connected to agents of a foreign power in this situation, what they can do is with the situation where they get information to or potentially even three hops out from that individual.
So instead of just getting the individual's communications or their records, they're getting the people that they talk to, all those people's records and potentially all those people's records who those people talk to, which potentially could suck in thousands, tens of thousands, hundreds of thousands of innocent people that have really no connection to this agent of foreign power, but know somebody who knows somebody who doesn't, and therefore now their data can be searchable.
So that's where the real privacy implications come in, that we're not just talking about individuals they're targeting, but when they target a person in this situation, it then sweeps in thousands and thousands of other people.
Right.
Well, and a way to think about this would be, so if I talk to a reporter who speaks with agents of a foreign government, right, even asking a foreign embassy for an official comment or something, then that means that anyone else in my cell phone is fair game for these guys.
Anybody else that I call, as long as I call somebody who called somebody, is that what you're telling me?
Exactly.
And that's always been the real complaint about the NSA's current mass surveillance program, is that the same thing could happen if somebody was connected to a terrorist.
Like if a journalist called somebody who knows a terrorist, then through that connection stream, then everybody the journalist also talks to is now connected and able to be searched in this database.
But now they're going to lower the standard even further to not just terrorism, but foreign powers to do these types of searches, and it has the potential for even more abuse.
I saw this thing on, I guess it was the Science Channel, do they still have that?
I don't know.
But they talked about this network science and how they figured out that that whole six degrees of Kevin Bacon counts for everyone on earth.
And they even had, they did an experiment where the challenge was to see if you can send this letter to a professor in New York without mailing it, but just by handing it off to people within six hops.
And from deepest, darkest sub-Saharan African jungles, in isolated little villages, or the farthest reaches of outer Mongolia, literally, they got these letters to this professor in New York by just handing it off to one person who knows somebody who knows somebody who sometimes goes to New York, whatever, and they got all the letters.
Every one of them got there in less than six hops.
I think it was five.
So in other words, that's everybody on the planet, basically.
Maybe there's some Eskimos that nobody knows or something.
Wow, yeah, that's a really interesting study I've never seen before, but it's definitely true.
I don't know enough about it, Trevor, but they really talked about it like, wow, this is really a brand new discovery about the interrelationships of everybody.
They coined it like it was a brand new branch of science, this network science.
Brand new mathematical ways of looking at stuff that they had never come up with before.
And they claimed, too, that this is part of how they led the clampdown on the leaders of Al-Qaeda in Iraq, too, that this was how they were able to figure out which were the few hundred people most important to kill, to try to nip the insurgency in the bud.
It was such a great success for them, they wanted to try it again in Afghanistan and all of that, too.
It's all based on this same kind of thing.
Well, yeah, I wouldn't doubt that by six degrees you're touching everybody on Earth.
We know that just using the average person's phone book, just three hops away is going to inspire millions of people, and four hops is probably everybody in the United States.
So if you have six hops, which, to be fair, the NSA doesn't actually do six hops, but that almost certainly covers the entire world.
Right.
And at that point, it's close enough, basically.
Let the software fill in the gaps, you know, it won't be hard.
And then, like you say, too, it all goes in the corporate store where it stays, and they don't need any authority to go back over and over and over again and look at anything that they've already ever collected.
So that's really the ultimate loophole there.
And I'm sorry I talked us all the way into the break here, Trevor, but please bear with us.
We'll be right back, y'all, with Trevor Timm from the Freedom of the Press Foundation.
Follow him on Twitter, Trevor Timm, with two M's.
We'll be right back after this.
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All right, you guys, welcome back.
I'm Scott Horton.
This is my show, The Scott Horton Show.
I'm at ScottHorton.org and Liberty Express Radio and a lot of other things, too.
Let's Google it.
I'm talking with Trevor Tim.
He's got this piece at The Guardian.
The House's NSA bill could allow more spying than ever.
You call this reform, and then under that, Obama's proposal isn't much better, and we'll get to Obama's proposal in just a sec, but right before the break there, Trevor, I mentioned the corporate store, and we've interviewed the ...
I'm sorry, I forget who exactly from the ACLU about that story before, but it's so important.
If you could please, you bring it up in your article, if you could describe what that means and what's so important about it, and then we can talk about the Rogers bill, or I mean the Obama proposal.
Pardon me.
The corporate store is really this under-reported database the NSA has that Marcy Wheeler has been harping on for months, but unfortunately hasn't really gotten a lot of press otherwise.
It came out of documents that were declassified by the FISA court based on one of EFF's lawsuits.
The corporate store is basically when the NSA uses these two or three hops that we were talking about before the break to get tens of thousands of phone numbers and data on who people call, and when they call them, and for how long, and initially they're supposed to only search for this data when there's a nexus for terrorism, but when they get these tens of thousands of numbers, when they initially search them, they can then put them in this other database, and when they put them in this other database, they can then use this database to search these phone numbers for all sorts of things, do all sorts of analysis on them that doesn't have to meet the requisite requirements for terrorism.
They don't have to audit themselves, so we have no idea how much they search this corporate store, and basically this is a place where the NSA can do all sorts of dirty work with no oversight, and frankly, we have no idea how much they're using this corporate store and for what, and it's the real scary part, because even though it's incredibly scary already that they have everybody's phone number, at least there are some requirements for them to search the initial database, but in this other database, which could potentially at this point hold the majority of Americans' phone numbers, we have no idea what they're doing.
Oh, and yeah, I mean, that's really something else.
I'll urge people to go and look at especially the ACLU write-up on that, and then of course Marcy, as you say, as well.
And now, one more thing about this Rogers bill before we go on to the reported, but I guess unseen as yet, Obama proposal, is about the, I mean, he calls it the End Bulk Collection Act, which, you know, maybe he's just making fun of us or something, but in this case, as well as the Obama proposal, they want to go ahead and stop having the NSA hold it.
They want to have the telecoms hold onto it, but I think I read that in the case of the Obama proposal that there wouldn't necessarily be a mandate for the telecoms to hold onto that data, although I'm sure they could find a way to incentivize it somehow.
They're going to still want it, but I just wonder how the Rogers bill treats these questions.
You know, it's hard to tell.
If you're talking about the Obama proposal, which, you know, necessarily isn't actually a law yet, or we don't even have a written proposal, basically it's just information in the New York Times story, that proposal actually sounds more promising than the Rogers bill does.
Unfortunately, we just don't have it written on paper, and so often in the case, the devil is in the details.
And, you know, the Obama administration plan says that they're only going to still focus on terrorism.
They also say that they're not going to require any data retention mandates for the telephone companies, they're going to end bulk collection, and that if they have to search for a phone number with the telephone companies, they'll go to a court first.
And so this sounds like a reasonable proposal.
The problem is we don't, like I said, we don't know the details.
We don't know if this prohibits bulk collection of other information, like internet metadata or financial records, and we don't know what other capabilities might be looming in the fine print of this bill, so it's hard to say for sure, but I will say that at least from what we heard, the Obama proposal sounds far better than what the House Intelligence Committee is offering.
Right.
And I'm sorry, I take 100% responsibility for not forming my question well.
I'm sure you missed it, but my fault.
I was just wondering about what the Rogers bill says about what the telecoms, or whether the telecoms will hold it, not the NSA?
Is that the same in the Rogers bill, and then does it have a mandate that they have to hold on to it then, or not?
Right.
So in the Rogers bill, it does end the initial bulk collection by the government, so it would be the telecom companies holding on to the data, and the other good news is that there is no data retention mandate, so they don't have to hold on to it for five years.
The telephone companies are already required to hold on to information for 18 months, and so apparently they'll just keep it like that, which is good news, but the problem is if they can start searching this data at a far more regular basis than they do now, and getting the two or three hops, and then putting it into the corporate store, you know, we still have the same problem we had before, and perhaps worse.
So yeah, both bills try to end, will end, technically the program we all know about that bulk collection, but it remains to be seen what other types of bulk collection it will prohibit.
Is it too far out for me to suspect that they would just find a loophole and just say, oh well, forget the Patriot Act, man, don't worry, we'll just use Executive Order 12333, or we'll use FISA amendments, 207, whatever the hell, we'll just make up some other authority, and what we'll do is, instead of collecting the phone records, we'll just break into all the phone companies' records, and we'll copy and paste those, and so that'll be an entirely different process under an entirely different authority, and we'll still have all the information that we want.
I mean, is it crazy to think that that's what they would do, or is that pretty much how they operate, these guys?
Well yeah, that's why it's important that these bills explicitly say the government cannot bulk collect this information in any form, not just under this program.
The typical NSA response to questions like, do you spy on this particular group of people, or do you collect this particular type of records, usually they say, no, we don't under this program, meaning that they have another program which they do that under, and that's how they try to get out of answering questions in public, so it's important that these bills specifically state that they cannot bulk collect, and it remains to be seen whether any of the bills will actually do that.
Am I right that sort of a parallel story is that they had their email metadata program shut down at some point, I guess maybe the Senate was on their case about it a little bit, that it wasn't doing any good, and maybe it was a waste of money, or they didn't really like it, but then they went around that, and that was the story of breaking into the Google and Yahoo cloud servers overseas was, of course, part of that haul is all that same email metadata.
Is that more or less the same kind of thing?
Do I even have that right?
Well, yeah, I mean, the NSA basically was collecting internet metadata like it's been collecting phone metadata until 2011, but again, they couldn't prove this was stopping any terrorist attacks, you know, this was a huge violation of privacy, and so behind the scenes, Senator Ron Wyden and Mark Udall were continually pressuring them for evidence that this did anything to protect us, and it was clear that it was violating privacy, and finally, given the fact that the FISA court kept asking the NSA questions, which they couldn't answer, the government just decided to shut the program down, but it's important to remember that up until the moment they shut it down, they were defending it tooth and nail, saying that it was vital for national security, you know, we're seeing the same thing here, you know, for months and months, the NSA and the President have been saying that this is a vital tool to protect us, and now all of a sudden, they're saying, actually, you know what, don't need it anymore, we're going to shut it down, and that's really been the overarching problem here, is that the government claims that everything they do is in the name of national security, and they can run a rough shot over privacy rules and laws that we have in this country, and you know, it's been clear to even the President's advisors, who he picked to run two separate panels to give him recommendations that this tool is not vital for fighting terrorism, and it violates people's privacy, and finally, we're seeing them respond to that.
Right.
Yeah, I mean, that's a real big deal that, you know, I think maybe this got a little bit under-reported there, where the President, especially I think the second one, the hand-picked Presidential Advisory Council guys of Cass Sunstein, and some very Obama-loyal people, maybe not all of them, but many of them were, and yet their report said, hey, this is not just not protecting anyone, this is illegal.
You're basically, in effect, your memo justifying is lying about what Patriot Act Section 215 says.
It doesn't say that.
You're pretending that you think it does, but it's not true.
You're breaking the law.
That's a real big deal, that like, no, you have to stop right now, you're criminals, unless you're going to pass a whole new thing, legalize it, which brings us back to where they're at now.
And by the way, and I'm sorry, in the last second here, can you talk about the Sensenbrenner bill?
Because he was the, I guess, sponsored, originally, the Patriot Act in the House way back then.
That's his Section 215 there, and he has this USA Freedom Act, and that one's supposedly better in what ways?
Can you tell us real quick?
Yeah, well, James Sensenbrenner, who was the author of the original Patriot Act, who no one has ever considered a civil libertarian, you know, he's a Republican from Wisconsin, very law and order.
He has been actually incredibly outraged over how the NSA has reinterpreted the Patriot Act to mean they collect hundreds of millions of phone call records, and he actually has the most comprehensive bill.
It's the USA Freedom Act, and this will go much farther to limiting bulk collection and mass surveillance than the House Intelligence Bill or any other bills involved.
And that's the bill I would really encourage people to get behind and tell their congressperson that they recommend them passing.
It's called the USA Freedom Act, and it's, like I said, it's by far the most comprehensive reform plan that's on the books right now.
And it's not a wolf in sheep's clothing, we're buried in there as some terrible further encroachment in a different direction or anything like that?
No, I mean, you know, it could definitely go further than it does right now, but it's the bill that definitely has the most teeth that the people in Congress that we know care about this issue, and they're actually trying to fix it, are getting behind.
And so that's the bill I would trust most at this point.
Okay, great.
And tell us in just a couple of words, whether it's got some momentum behind it.
Yeah.
Oh, yeah, the bill has a ton of co-sponsors, it can pass in the House right now and let it go to a vote.
And the Senate Judiciary Committee actually starts marking it up and votes it out of committee, then maybe it'll have a good chance in the Senate as well.
All right, great.
That's Trevor Timm, everybody, from the Freedom of the Press Foundation, and here he is at The Guardian.
Thanks so much.
Appreciate it.
Thanks a lot.
Hey, y'all, Scott here.
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