05/06/14 – Marcy Wheeler – The Scott Horton Show

The military-industrial complex, the disastrous rise of misplaced power...
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We should take nothing for granted.
Alright, y'all.
Welcome back to the show.
I'm Scott Horton.
This is my show, Scott Horton Show.
I'm at APSRadioNews.com and at DailyPaulRadio.com and at ScottHorton.org.
Anomaly Radio.
I'm all over the place, man.
Yeah.
Alright, next up is the great Marcy Wheeler, Empty Wheel, is what they call her online.
EmptyWheel.net.
Oop, I hit the wrong button.
Welcome to the show, Marcy.
How are you doing?
Don't hit the wrong button.
I did hit the wrong button.
I gotta turn you up.
You're too quiet.
Hi, how are you?
Never too quiet.
I'm great.
How are you?
I'm great.
Thank you for joining us.
You sound great on Skype.
It worked.
And you can hear me, apparently, so that's good, too.
Alright, so we got how many different NSA reform bills in the Congress right now?
Two or three?
Well, technically, if you count Dianne Feinstein's three, what used to be the good one, USA Freedom Act, has become the crummier one that I'm calling USA Freedom Act.
Yes, this is what I've come to understand here.
Oh, and now I see that the one I'm looking at is no longer the latest.
Rats.
The one I read, still very detailed.
I understood most of it, I think.
New freedom equals less protection for all but the telecoms.
Yeah, of course.
What did you call us, regular schlubs?
Yeah, we don't get any protection at all.
The USA Freedom Act.
Alright, so this was, help refresh my memory, this was Jim Sensenbrenner, who was the original sponsor of the Patriot Act, who got mad at the way that they twisted his Section 215 all out of whack, is that right?
That's what he said, yeah.
But then he's not really standing up for what he originally wrote now.
Well, what happened, partly, was that the House Intelligence leaders, so John Boehner, were threatening to go around the House Judiciary Committee.
Through the House Intelligence Committee, Mike Rogers, Dutch Ruppersberger, I teasingly call their bill the Rupp-Rodge bill, kind of like Scooby-Doo, Rupp-Rodge.
So they were going to break jurisdictional rules and go through Intelligence Committee.
And that made everyone in the House Judiciary Committee a lot more willing to negotiate and to come up with a bill which is better than the House Intelligence Bill, but not all that much better.
And then they're going to mark it up tomorrow, and we're going to see whether the progress, I mean, there are real progressives on House Judiciary Committee.
There's like maybe one on the House Intelligence Committee, and there's no real critics of the dragnet on the House Intelligence Committee.
So we're better off, House Judiciary, but they've already given away the farm.
A lot of key parts of this bill are just like the House Intelligence Bill.
First of all, could you tell us what was good about the Freedom Act before it became the Free-Dumb Act in the first place, and what it is that they're now dropping out and writing over?
Some of the things they did, the question is how are you going to get the government to stop bulk collection, right?
What kind of language can you write that's actually going to stop the intelligence community that kind of runs on its own power?
And that original one tried to say that you can only get information if you actually tie it to actual people who you are actually investigating.
This one, the Free-Dumb Act and the House Intelligence Bill, both adopted different means of trying to shut down bulk collection, and they say you have to use a selector.
But they don't define selector, nowhere.
They never define it.
Elsewhere, they like to say it's things like email addresses or phone numbers, but we know they're using more broadly than that, and the way they use the language, there's nothing to prevent them from using, say, area code 202, the area code for all of DC as their selector.
They just don't define it.
So that's one thing, is they've moved from actually tying it to investigations to tying it to selectors, which can be very broad.
Yeah, again, that's just the general warrant, and so give up the whole store right there, right off the bat, right?
Yeah, they say it's not.
My last piece was a piece noting that the claim that this is not bulk collection, because you and I consider it bulk collection.
You and I consider it a general warrant.
The government says so long as they use a selector, it's not bulk collection.
It's only bulk collection if they get everybody's phone records, right, which is convenient for them but not really convincing to me, nor should it be to any of your listeners.
Right.
Yeah, a couple of the other important things that got dropped from USA Freedom Act, one, it tried, I'm not sure it would have been successful, but it tried to prevent what are called backdoor searches.
So in other words, it tried to say if you collect this information and you want to go get the U.S. person content in there, you have to go get a warrant.
And that's what a lot of people are saying, but the government doesn't want to do that, and so that's out.
That's been thrown out of the scene.
So wait a minute now.
So that part of it, is that then in reference to the corporate store where once they've collected something under whatever pretext, that once they've got it through whichever loophole that they've used, now it's all open season for anything once it's in that category from now on, and this was an attempt to limit that.
Is that correct?
No, no, no.
This was actually an attempt to limit content access.
So when they collect the content from, say, Nasir al-Awlaki's phone calls.
That's Anwar al-Awlaki's father.
We know he was in contact with a number of journalists.
We know he was in contact with the ACLU when they were representing him.
So say they collect all of his content, all of his phone calls, all of his e-mails that he sends.
The government can go in and get to what the ACLU has written to him or get to what journalist Jeremy Scahill has said to him on the phone without needing any reasonable articulable suspicion that they're supporting Anwar al-Awlaki or anything like that.
The government can go in and say, we have a foreign intelligence purpose to see these conversations between journalists and lawyers and this guy that we've targeted because his son is a creep, and we can just go in and access it.
So which door is the back door?
What's the loophole that they're using to say that, that he's the father of a guy that they accused once?
They argue, and this is based off of when they get a warrant for somebody's file cabinet and say, we suspect there are bad things in this file cabinet.
When they go through the file cabinet, if they find other evidence of crime, they can sort of use it depending on how narrowly everything was written.
So they're tapping the father in order to try to get at the son, but as long as we're tapping the father, we have all this information about Scahill, about the CCR and the ACLU and whoever else the father was in contact with.
Because they announced they were going to kill him before they killed him, quite a while before they killed him.
So I'm sure there was plenty to investigate once Alaki's father, the grandfather, really got to work trying to prevent his son from being assassinated.
Right.
And boy, I'm two hops from a lot of these guys, one hop.
Yeah.
I mean, I used him as a specific example because you and I both, we can talk about the specifics of it.
But the general rule that they are applying here is, so long as they have legally collected information.
So they could be collecting all of Yemen, all of email involving Yemen, right?
So long as they've legally collected that, they argue they don't need additional legal process to go back in and access any of it.
And I actually did a post a couple weeks ago where it took a slide that Snowden leaked, and it showed that one of the things they do when they're trying to figure out, you know, they get a bunch of metadata, and they want to figure out which stuff is more interesting to read.
There's this computer screen that pulls up the metadata that they found with all of the interesting conversations that person has had.
So, you know, they'll pull up Scott Horton and they'll say, golly, you had an interesting conversation with this guy in Mexico six months ago.
And not only will that show the conversation, right?
So not only will they be able to just kind of from one source be able to pull up all the interesting conversations you've ever been involved with, but it includes a link right to the content.
So, you know, they can say, golly, that guy in Mexico is a creep.
I wonder what the heck Scott said to him, and immediately link through without getting a warrant, without having any reason to believe that you are a creep just like the guy in Mexico.
They can get right through to the content.
I mean, they have to, for you as persons, for you and me, they'd have to make, you know, there's an additional hoop, but it's an internal hoop.
It's not actually going to a quarter or even, again, they have said very explicitly, they do not require even reasonable articulable suspicion to do these backdoor searches.
And again, this was to be fixed in the USA Freedom Act, but now it is not.
Now it's not.
I see.
And then, so what about relevant?
Because I thought that was the big deal in section 215 of the Patriot Act.
Oh, yeah, yeah, you can do this and the other thing as long as it's relevant.
And then they said relevant means not relevant.
Relevant means whatever we feel like, and that was what got Sensenbrenner so angry that he wanted to do something about this, right?
So did at least the original version actually address that and say, actually, let us remind you what the definition of the word relevant is or anything along those lines?
No, they never tried to redefine the word relevant.
The original bill, like I said, tried to just tie any collection of evidence to an actual investigation.
This bill tries to— Am I right, though, that that was part of what Sensenbrenner was so outraged about in the first place?
Yeah, but just as an example, the new bill says once you've collected this information off of selectors, you have to destroy it within five years unless it is relevant to a terrorist investigation.
So it uses that same standard.
In other words, the only rule that NSA has to destroy this data basically says using that same relevant language, and this is Sensenbrenner who wrote this, who's all up in arms about relevant.
They say, well, you don't have to destroy this data if it is relevant to an investigation, but they wouldn't have even had it except for this argument that it's relevant.
So basically once the NSA gets your data via this new system, they can keep it as long as they want, forever.
All right.
It's the brilliant Marcy Wheeler, EmptyWheel.net.
She dissects all this stuff for you there.
We'll be right back after this ridiculously long break.
Phone records, financial and location data, PRISM, Tempora, XKeyscore, Boundless Informant.
Hey, y'all, Scott Warren here for offnow.org.
Now here's the deal.
Due to the Snowden revelations, we have a great opportunity for a short period of time to get some real rollback of the national surveillance state.
Now they're already trying to tire us by introducing fake reforms in the Congress.
And the courts, they betrayed their sworn oaths to the Constitution and Bill of Rights again and again and can in no way be trusted to stop the abuses for us.
We've got to do it ourselves.
How?
We nullify it at the state level.
It's still not easy.
The offnow project of the Tenth Amendment Center has gotten off to a great start.
I mean it.
There's real reason to be optimistic here.
They've gotten their model legislation introduced all over the place.
In state after state, I've lost count, more than a dozen.
You're always wondering, yeah, but what can we do?
Here's something, something important, something that can work if we do the work.
Get started cutting off the NSA support in your state.
Go to offnow.org.
All right, y'all, welcome back.
I'm Scott Horton.
This is my show, Scott Horton Show.
And I got the great Marcy Wheeler on the phone.
Empty Wheel is what they call her online.
That's EmptyWheel.net and, of course, on Twitter as well, at Empty Wheel.
And not so empty, full of information and insight here.
That was kind of lame, but anyway.
So, Marcy, tell me, before we get to the timing of all of this, the USA Freedom Act, is there anything else along the lines of what could have been in the original version of the Freedom Act that has now been watered down, that we need to cover here?
One thing that I think is really important is they had some really good Inspector General reports that basically the DOJ Inspector General is now reviewing the Section 215 use through 2009.
And the old USA Freedom said, okay, now do the ones since 2009.
And for those, we want you to tell us basically how many Americans you've collected on.
And we want to tell us if you've broken the rules.
They also included a bunch of new reports that required the government to tell specifically what they were getting with Section 215 reports.
And those are all seriously watered down in the USA Freedom Act.
First of all, there's a gap.
So, whereas the old USA Freedom Act would have given you continuous IG reporting up until now, the new one basically leaves 2010 and 2011 as a whole in the IG reports.
And I don't know if they plan to pick that up somewhere else, but there's some reasons to believe that those years would be of particular interest.
And that's how we learn about these programs.
But also the reporting has been totally watered down so that the government doesn't have to tell Congress how many people are affected by these programs.
And that's the really ironic thing.
They're saying, oh, we're fixing bulk collection.
We're fixing bulk collection.
But they refuse to provide reports that would allow Congress to actually assess whether they're still getting bulk collection.
Yeah, still just take their word for it.
No semi-independent IG, or at least not with a real mandate.
I mean, just as an example, right now the national security letters on their congressional reports are the only one that have to say how many individual people are.
So there were like 15,000 national security letters last year.
Something like 8,000 individuals were assigned.
Internal reports tell Congress how many of those were U.S. persons, and they'll break down what kind of national security letters there were.
And then there's a whole part of the national security letter stuff that's exempted, that just gets basically phone book data.
They don't have to report that to Congress.
But there's no equivalent level of detail at the business record so that now they would report, well, we have four orders involved with the phone drag net, and those collect 310,000 people.
There's no measure of how many people are affected by each order, and that I think is telling.
I mean, if they're not willing to share that information, it says they're still engaged in bulk collection.
And there's one other really important thing for your listeners to know about.
Right now, the Patriot Act is due to expire next June, so not much more than a year away.
And that should give reformers some kind of leverage, because they know if we get to June and nothing happens, then reformers are just going to let it drop, and then NSA doesn't have any access.
And the USA Freedom Act basically pushes the sunset for the Patriot Act out to 2017.
And it would coincide with the FISA Amendments Act, but it would also mean another.
Seriously, we're talking about being 16 years after 9-11 and still have these emergency measures in place.
Right.
Okay, now, so before we get back to the politics of it, because I do want to talk about that, but can you tell me about the part about the financial institution?
Because I think I remember it used to be an outrage what was being required of actual financial institutions in warrantless sort of executive-only requests for information.
But then they went, and I guess ever since September 11th, maybe more and more and more now, they keep identifying or redefining financial institution to mean anybody with $5 in their pocket, I think.
Yeah, that's one of the sketchy things about the changes.
I mean, let me take three steps back.
One is, one of the primary orders for the business records program has been released in part.
And it makes it clear that they have used Section 215 to get financial records.
That one was purportedly tied to a specific investigation.
So, you know, say Anwar al-Awlaki rather than every potential terrorist sympathizer.
So we do know they've used Section 215 for financial reports.
New York Times and Wall Street Journal have reported that CIA has also used it for money transfer companies.
But we're just not seeing a lot of visibility on that.
One of the interesting things that had been in the original USA Freedom Act was they laid out precisely what was included under those financial entities.
That could be forced to turn over information.
And it should have been, I mean, these were all always closely tied.
That should have been clear by the legislative language anyway.
But for some reason, they felt like they needed to spell out what got included as a financial entity or not.
And that's been removed too.
And it does make me wonder whether what you just said is happening, that anybody who does anything with money is being called a financial institution and therefore being served national security letters to get this stuff.
Yeah, I mean, I think they at first expanded it to mean, well, car dealers or boat dealers or maybe jewelers or anybody who's selling big ticket items.
That counts because it could be a financial instrument in a way if you sort of twist it, but not really.
And once you allow that, then pretty much you've allowed financial institution to mean whatever they want.
So from there, it's just sliding down the slippery slope.
And I don't know if it's gone as far as I'm speculating there either, but I don't know what would stop them at this point.
I guess not the new Freedom Act anyway.
No, and minor point, but the USA Freedom Act had also eliminated a way or had kind of made it.
There's two ways to get credit reports, one of which is limited to terrorism.
And the USA Freedom Act had gotten rid of that dualism and put some new restrictions on what you had to do to get a full credit report on somebody.
And that's out the window too.
So it's just some things that we don't know why they were in the USA Freedom Act in the first place because we don't know enough about what FBI is doing.
But when you see things like that, they're there for a reason.
And whatever reason they're there for, the intelligence community wants to keep because they've gotten that thrown out of the bill.
In other words, some staffer was concerned and said, you know what should really be in there is this.
And we only see that side of it.
We don't know what secret they know, but we could see the correction they're trying to make and then see their correction go out the window too.
Right.
I mean one thing that we know from the President's Review Group and from both the USA Freedom Act and from Freedom Act is that everyone believes the government is using NSLs, National Security Letters, for what you and I would consider bulk collection.
And it's not clear how they're doing it.
It's not clear what they're doing.
We don't know.
But we do know that, for example, the President's Review Group said you need to eliminate bulk collection for National Security Letters the same way you need to eliminate it for Section 215.
And the NSLs, that's one of the areas where the bill has changed the most is they've gotten rid of a lot of the good aspects of that.
There used to be IG reports required for the National Security Letter practice.
That's been eliminated.
It's troubling because that's the area where we don't have Snowden documents that tell us what's going on.
And that may well be where… First of all, I've said this before, but as worried as I am about NSA, I'm far more worried about FBI.
And we don't have visibility into what FBI is doing.
And the notion that FBI is doing this kind of mapping based on financial information and the like should be troubling to everyone.
Right.
I mean, we see little stories here and there about every county sheriff wants in on this same kind of game to the degree that he can.
So when it comes to the FBI, you can be sure they're doing as much as they possibly can.
Anyway, whatever that might be.
They're not the NSA, but they certainly have a lot of authority, if not all of the capability.
And really importantly, the NSA still has rules because they're allegedly a foreign intelligence entity.
So they still have fairly strict rules about how they're supposed to protect U.S. person data.
The FBI has nothing like that.
I mean, their job is to share information as broadly as they can.
And that includes sharing with other agencies like DEA, but also sharing down to local levels.
You know, the way they should have done in the Boston Marathon.
They're supposed to share down through these JTTFs, the Joint Terrorism Task Forces.
And that means that if FBI has the data, you can bet that more people have access to it because that's the way their rule set has been written.
Yeah.
And that goes whether they're doing their job or not following Zarnev around.
But for everything they do about all the rest of us, too.
All right.
So now let me ask you this.
We're already over time, so it's got to be real quick here, Marcy.
But the timing of this, it seems like, you know, yeah, they're wearing us out, obviously, or trying to.
But on the other hand, is anybody going to buy it?
I mean, especially with your blog around, this is so retarded, the Free Dumb Act, as you call it.
It's such a sellout of the minor reforms that they were some sort of somewhat major reforms they were going for there.
I wonder whether they'll be able to get any of the pro-civil liberties people in the Congress to support it.
Is that actually a faction at all?
Or is it all just people rallying, Congress rallying around the NSA, and they're going to sail this thing through?
Because it doesn't seem like this is going to generate much excitement among the people who really want reform, right?
Like I expect the ACLU is denouncing these changes, that kind of thing.
No, unfortunately, the NGOs are kind of saying, well, we think that USA Freedom is better than the House bill, the House Intelligence bill.
I think it's not much better, but it is better.
And therefore, they're saying we have to latch on to this effort and improve it as much as we can.
And that's what I was trying to get to about the timing, is that by rushing through the House Judiciary bill with the House Intelligence bill kind of lurking behind as a threat, it is getting people who have no sane reason to support this to support it.
And that's the concern, because you're right, no civil libertarian should support this.
But I think people are because of the way the parliamentary tactics are working.
Sometimes compromises are worth it, but it doesn't sound like it in this case.
I'm sorry we're so over time.
I've got to go, but thank you so much for your time as always.
I really appreciate it, Marcy.
Thanks, Scott.
All right, everybody, that's the great Marcy Wheeler.
She's EmptyWheel.net.
She's at Empty Wheel on Twitter.
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