07/07/14 – Marcy Wheeler – The Scott Horton Show

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Hey, I'm Scott.
It's my show, The Scott Horton Show.
And our first guest on the show today is Empty Wheel, Marcy Wheeler.
And that's her blog, emptywheel.net.
And that's her handle on Twitter, too.
You ought to follow her on there.
Hey, Marcy, how are you?
Oh, I hit the wrong dang button.
I always do that.
Hey, Marcy, how are you?
I'm still good.
Don't hit the wrong button.
Oh, good.
I guess you said good back in when the wrong button was hit.
Well, I'm glad you got a chance to say it twice, then.
Hey, listen, I appreciate you joining me on the show this morning, especially on the short notice and all that.
Big news.
Barton Gellman's latest at the Washington Post.
NSA intercepted data.
Oh, in NSA intercepted data.
Those not targeted far outnumber the foreigners who are.
That's a funny definition of the word targeted, then, I guess.
I guess I'll have to let you explain what you think about all this.
Yeah, we finally get to know what this wacky definition of target means in real life.
Basically what happened in the stash of documents that Snowden had given Gellman, there was a collection of 160,000 communications that spanned from 2009 to 2012.
And it provided the Washington Post to do what, in fact, PCLOB recommended last week that the FISA court do, which is that you get a subsample of the data actually collected under Section 702 and you see what's actually done under the targeting and minimization procedures that are supposed to rein in this practice.
Wait, the PCLOB is what now?
Privacy and Civil Liberties Oversight Board, which is a presidential organization that's supposed to watch out for our civil liberties, which issued kind of a weak sauce report last week, but which did raise questions about how much U.S. person data was being collected as part of 702.
And now Bart Gellman and his colleagues at Washington Post have given us an answer.
And the answer is, A, that about 90% of the data that's collected under Section 702 is non-target people, and that is both foreigners and Americans.
B, in the sample they looked at, something like close to half were Americans.
So in some legal documents they say, well, it would be speculation to say that we're collecting a lot of Americans.
Maybe it's just foreigners talking to each other.
Apparently not.
I mean, apparently at least in the sample that Gellman looked at, close to half are Americans.
What they showed, and this is, basically everyone has said this program is cool, because there are these, I'm going to call them government agency protocols, because that's what Chief Justice John Roberts called them when he said they were inadequate, not what the founders had fought a revolution for.
They use targeting rules and minimization rules that are supposed to stand in for things like a warrant.
And what Gellman's analysis showed, or the Washington Post, because he had some great colleagues work with him on this, and it took four months to do this analysis, what it showed was that, A, what PCLOB reported last week, and what government witness after government witness have claimed about their foreignness designation, in other words, before they collect somebody under Section 702, they're supposed to make an argument that this person is overseas.
And what the Washington Post found is that, in fact, they're using things like, if you write emails in a foreign language, you must be overseas.
If you're in a buddy list of somebody who's overseas, you must be overseas.
They were using IP addresses, which of course is not very useful.
So in other words, their foreignness designation is not as rigorous as PCLOB and a bunch of government witnesses have claimed.
So that's the first problem.
That means all these people who've rubber-stamped this program have been misled.
The second, even more important one for Americans, that last one affects everyone, is that the minimization procedures NSA uses require them to, when they look at a communication that involves a U.S. person, if it doesn't have significant foreign intelligence purpose, they're supposed to get rid of it.
So in other words, if they intercept me and my father-in-law talking about how rainy it is this year in Ireland, they're supposed to get rid of that.
But what Gell-Mann, what the Washington Post analysis showed, and this is an area where the Washington Post and PCLOB's analysis completely coincides, is that they're keeping a lot of crap.
They're keeping a lot of very personal information, doctors' reports, kids' pictures, people posing in the half-nude, love letters.
They're keeping a lot of stuff that is simply not foreign intelligence information, as we would understand it.
Now, NSA is going to say, well, you know, it'll be useful to find that guy's girlfriend when we want to infiltrate him.
And that's probably why they're keeping it.
But what that means is that the level for retaining information involving U.S. persons is far lower than the required minimization procedures would have you believe.
So in other words, the FISA court has bought off on these minimization procedures that says you have to throw out communications that have no foreign intelligence purpose.
And the Washington Post even quoted some analysts going, oh, yeah, this is, they don't say this is crap, but they basically said this is more crap.
There were 53 things that were irrelevant here, and yet keeping it.
So they're judging that it's irrelevant, but nevertheless they're keeping this documentation.
And that's one of the really important points to this, is that what the Washington Post showed is that the assurances given to Congress and given to PCLOB and given to the American people are in fact wrong.
Right.
And now I guess it does, it comes down to not just the term useful, which is not useful for counterterrorism, but useful for intelligence.
That just means, you know, there's any fact in there that they decide themselves is interesting to them basically is it, right?
Or might be interesting five years down the road.
Right.
And only as defined by them.
Right, right.
And that's the point, is that the bar set here is so low.
And there's, and one of the reasons, and as PCLOB explained it, one of the reasons they were concerned about this is because right now, especially the CIA and FBI and to a lesser extent the NSA can go back and do these backdoor searches.
And they can say, I want to see what Scott Horton has said to people overseas that he's been talking with.
And it could include data that's about your family life, right?
Which is not intelligence, not foreign intelligence information at all.
But down the road they may use it to squeeze you and make you inform on your friends or something like that.
I mean, that's the kind of thing that's completely feasible given what we know about these programs.
Not supposed to happen, but completely within the scope of what could happen given both what PCLOB had said and especially what Washington Post now has reported.
Yeah.
And now, so this is where we get to the real Orwellian nightmare there.
As Frank Church put it back in the 1970s, if they ever took their spying apparatus that we have unleashed against the world and turned it inward, there would be nowhere to hide.
It would be, and this is, we've already seen a taste of this.
We don't even know how widespread it is, right?
About the NSA collecting information and saying, oh, we figured out that we think this guy's, you know, dealing drugs.
So let's, you know, launder the information and turn it over to the federal police or the state police or the local sheriff's department and then they do that parallel construction.
You guys make up an excuse for knowing what you know.
Perjure yourself in your affidavits on this case, but here it is.
But so we're only one step away from, or maybe we're not even there.
Maybe we're already a half step into.
They can just go ahead and outright turn over their entire, you know, their entire haul, their entire intelligence collection on the American people in the name of protecting us from foreign threats and just turn all of that over to the cops and just think about what all could be learned in data mining all of that stuff.
Again, like you're talking about, not necessarily criminal stuff, but who's screwing who?
That's not, you know, adultery is not a crime anymore, but you sure can control somebody big time with information like that.
Oh man, and now a dang commercial break.
I'm sorry.
When we come back, we're going to talk more about our totalitarian nightmare with our good friend Marcy Wheeler from EmptyWheel.net.
That's her great blog, EmptyWheel.net.
Back in just a second.
Hey, you own a business?
Maybe we should consider advertising on the show.
See if we can make a little bit of money.
My email address is Scott at ScottHorton.org.
All right, you guys.
Thanks for hanging in there through the break.
We're back with Marcy Wheeler.
EmptyWheel, they call her online.
EmptyWheel.net.
And also, that's her handle on Twitter too.
And I'm sorry, I ranted and raved right up to the break, as I sometimes do, okay, often, about what you're talking about here.
The FBI has access to the NSA's haul on the American people, which they can go fishing through and find evidence of three felonies a day on all 300 million of us, and then we all live in Fahrenheit 451, or worse, totalitarian slavery.
What about that?
It's not good.
Yeah, I mean, and they don't have numbers.
That's the other thing we learned in the last, gosh, has it been a week?
The FBI doesn't actually count how many times they do backdoor searches.
So there's, you know, generally when in government they don't count something, it means there's a reason they don't want you to know how much they're doing.
Well, you know, when they did count, for example, how often they abused their national security letter authority, the chief of the FBI went before the Congress and says, oh, yeah, we abused a hell of a lot of those, and I don't remember the numbers, but I believe it was thousands of times that he was happy to admit to, even.
Right, yeah, I mean, if there's, I mean, look, one of the things that they make clear is these databases are accessible to FBI agents.
They're in the database where they search on whatever kind of information they have about somebody they're doing an assessment on, which means even if it's somebody who hasn't been trained on FISA material, they can go get somebody and say, hey, what about this foreign conversation that got sucked up, and they'll have access to it.
And so it's going to be readily accessible, and they're going to, you know, be able to at least consider that.
They may not want to introduce it into court, but, you know, it's all there.
It's all of these conversations that we have.
Now, we should say that there are limits to, the FBI doesn't get everything that NSA gets.
They probably get a bunch of their counterterrorism stuff.
They probably get a bunch of their cybersecurity stuff, but they don't get, you know, they don't necessarily get the U.S. listening on the Venezuelan president's sex talk.
So that's going to limit it, but nevertheless, that's a whole bunch of people.
And so if you talk to anybody who might be considered a foreign hacker, then you're in trouble.
If you talk to anybody who might know somebody who is, you know, a Muslim who is opposed to the United States, you might be in trouble.
Well, it sounds like if you just talk to your spouse while they're on a business trip overseas, then it's open season on your entire email server and everything, no?
Well, it's possible that, you know, my spouse is not an American citizen, so yeah, they could easily do that because he's not, I mean, I guess he's a U.S. person, so he'd be protected overseas.
But the point, but if I talk to my in-laws in Ireland, presumably they would have to have a reason to wiretap my in-laws besides trying to reverse target me.
And, you know, they're sweet people.
I don't know what they'd come up with, but they could probably come up with something.
Again, I mean, that's all the emphasis on the word they would have to do this or that, but they don't really have to do anything, apparently.
Right, exactly.
And so is it just, did Snowden pick a certain batch, or do you think that this is a pretty representative sample that 90% of the haul here are non-targets, that 50% of it has to do with Americans on one end somewhere?
It's tough to tell.
It's actually a pretty small fraction of what's out there, and it's what the NSA would get.
The Washington Post hinted at some of the things that are covered in there that the NSA was able to get to al-Qaeda-related people in Pakistan and Abbottabad, leading up to Osama bin Laden's capture.
They discussed a nuclear program overseas, which is probably more Iranian targeting.
They discussed one of our purported friends double-dealing with us.
So that topic base seems fairly broad.
It's not just counterterrorism information.
It's not just hacking information.
They definitely had some of that as well.
So it seems, topic-wise, fairly representative of what the NSA might look at, which is, again, separate from what the FBI would look at.
And the other thing that it's important...
Some crazy people online are saying, oh my gosh, what a horrible civil liberties violation it is that Edward Snowden passed on minimized U.S. person data to people who then wrote a report on it, further minimizing the U.S. person data.
And they don't realize the irony, which is that they have been arguing for a year that minimization was adequate protections for Americans, and yet this data being passed on is somehow this horrible civil liberties violation.
And it may well be a concern, although these days I trust Washington Post more than I trust the CIA, go figure.
Although they're increasingly the same, given that Jeff Bezos owns them.
But nevertheless, if it's inadequate for...
If it's bad for Snowden to have passed this on, then those people can no longer argue that minimization is adequate protection for Americans, because their entire argument fails if Snowden was wrong for having done that.
Right.
And then, of course, this is exactly what he's been saying all along, and Snowden is quoted elaborating in the article as explaining, see, this is what I was talking about when I was telling you that I had stuff that the reporters needed to see to understand way more than I could publish online at WikiLeaks or something like that, that I could never release to people, but I could release it to Bart Gelman, because he's a responsible journalist, and he's going to do the work and then publish the part you need to know without betraying, you know, the secrets within, the real private data within.
And then, of course, we see that's exactly what happened in the article, a four-month investigation leading to a serious piece of journalism that doesn't betray anyone.
And again, the FISA court judge John Bates once asked NSA to figure out how much U.S. person data they have.
They refused to do so.
Congress, of course, refuses to do any kind of real oversight.
PCLOB recommended something similar to what The Washington Post did.
So what The Washington Post did is a public service akin to what has been necessary for this program for a very long time.
And, you know, hopefully the NSA will go back and pull a sampling that they claim is really representative, and then they can do their own study, or preferably somebody like PCLOB can do their own study and will know who to distrust.
But one thing's very clear coming out of this is that the NSA is keeping far more data than the minimization procedures that purportedly make this constitutional allow them to do.
And that should be, I mean, PCLOB kind of poo-pooed this.
They said, well, yeah, whatever.
But if they're not following the minimization procedures, they're not doing what the court has approved, which is the basis for it being constitutional.
Right.
And then, of course, like you're saying, the targeting, too, where they're saying, oh, well, if you're writing your e-mail in a foreign language, then you must live in a foreign country.
Are you kidding me?
I mean, there are 300 million people in this country, and I don't know what the proportion of them it is that don't speak English as their first language, but it's a hell of a lot of them.
Well, I mean, there were other violations in here.
They showed that after traditional warrants had been shut down or that the judge, they have deadlines, the judge wouldn't reauthorize it, so they just moved it to Section 702.
That's a violation.
That's, again, the kind of thing the FBI was doing and gotten a lot of trouble for with the NSLs, with the national security letters.
Well, apparently the NSA is doing the same thing, arbitraging the various authorities it can use to go get this data.
Right, and then, of course, this is sort of a side point.
You wrote sort of a side blog entry about it, but it is important that they denied that Snowden had access to this kind of information, and here it turns up in The Washington Post.
And it is important because, you know, it turns out, happenstance, Ed Snowden is an American hero who did all this for all the right reasons, but that doesn't mean that everybody at NSA with the same kind of access as him has all the same motivations that he has.
Yeah, no one should have ever believed Keith Alexander.
I mean, A, they shouldn't have believed him because he always lies, but B, they should never have believed those claims unless what Alexander was saying is he has no clue.
And the reason that's true, and this is something I've been writing about for over a year, is that tech people, people like Edward Snowden, are in many different situations given unaudited access to raw data.
I mean, that is the way the NSA works.
The tech people need to do it to get their algorithms working, and then tech people are allowed to, you know, play around with their new gimmick, gizmo, using raw data, and so that means that tech people like Edward Snowden routinely have unaudited access to the raw data that the NSA collects.
That's been true.
That's been apparent in the phone dragnet order.
They still do.
Dianne Feinstein tried to codify that with her fake FISA fix last fall.
There are a number of other ways that the NSA tech people get access to this.
So it is a huge security problem, and Keith Alexander has been hiding that by lying about Edward Snowden's access to it for a year.
Thank you very much for your time on the show again, Marcy.
I sure appreciate it.
Thank you.
That's the great Marcy Wheeler, everybody.
We'll be right back.
Be free.
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