05/08/15 – Marcy Wheeler – The Scott Horton Show

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All right, guys, welcome back.
It's the show, my show, the Scott Horton Show.
I got Empty Wheel on the line, Marcy Wheeler, the brilliant genius behind the blog Empty Wheel at EmptyWheel.net.
Hey there.
Welcome back to the show.
How are you?
Oh, I am...
I...
Yesterday was a pretty good day.
I'm pretty good.
Okay, good.
Very happy to hear it.
Anything you want to tell us, or just a good day?
Uh, yeah.
So, finally, we got a court to say that the dragnet's illegal.
Now, I was certain that you were going to say that, yeah, but, and it was going to rain all over my parade, but you actually sound pretty happy.
Oh, well, I can rain on your parade.
Oh, go ahead, then.
No, look, I mean, for one of the reasons I've been opposing USA Freedom Act going back to November is that I think that it's really important to get the courts to weigh in on the dragnet, and I knew that the ACLU's Alex Abdo had thomped all over DOJ's arguments when he argued this case back September, because ACLU does business with Verizon, and so ACLU, like most of us, including me, can now claim to be, to actually have standing to challenge the dragnet.
And they did it, and they made a tremendously good argument that makes for good TV, and guess what?
Oh, and they got a panel at the circuit court that had been lied to by the government about past surveillance claims, so it was perfectly set up for the opinion we got yesterday, which basically said that it didn't get into the constitutional question, because they said, well, we don't need to, but we will if you keep illegally dragnetting.
But they basically said, USA Freedom Act does not permit you, in the name of relevance to a counterterrorism organization, it does not permit you to collect every American's phone records.
So this is not legal.
All right, now I know you got Freedom Act on the brain, but you meant to say Patriot Act there, right?
Yes.
Just making sure everybody's clear.
Patriot Act.
Okay, good, good catch.
Thank you.
Yeah, well, hey, you're the expert on the details here.
But yeah, no, and look, we're about to get to your list of 10 important articles about the USA Freedom Act, so it's easy to see why you could have made that mistake accidentally while you're explaining here.
Mind on the big picture.
But the other really important thing about the decision yesterday is that the problem, the way the government got to collect all of our records is they went to their secret court and they said, we've got this kind of standing FBI terrorism investigation, and everybody's phone records are relevant to it.
And that's the part of the program that the Second Circuit beat down.
And that's really important, because that term relevant to is what they use to collect all of all of our internet metadata is what the DEA used to collect all of our phone records.
So that phrase relevant to has become kind of a nuclear bomb that the government wields in secret to be able to surveil all of us.
And the Second Circuit just dropped a nuclear bomb on our nuclear bomb.
And now we're now we're having fun, at least.
Wow.
Okay, so now, yeah, that's a really big deal there.
Because okay, now, so make this clear to me.
They didn't say that Section 215 of the Patriot Act goes too far and is null and void.
What they said was that Section 215 of the Patriot Act does not say what the executive branch pretends to believe it says, giving themselves the excuse to do what they've done.
And for that matter, the the FISA court to give them that permission to do so.
Yes, that's exactly right.
You know, they didn't overturn Section 215 at all.
They said you can still go use it to collect on Scott Horton and Marcia Wheeler by name, if you're investigating them, and it's not an assessment, but you can't use it.
The courts did not envision that you would use that law to collect on every single American.
So you can't do it.
And now you're saying that once they scored this victory with their secret, illegal interpretation of Patriot Act, Section 215 there, that they have been overly reliant on this loophole, it sounds like you think, invoking the term relevant to apply to this, that and the other thing and that now this could cause a real crisis in their programs, no?
Yes, you know, they shut down like they claim to shut down the DEA dragnet, they've claimed to shut down the internet dragnet.
But still, they're using that term relevant to for a whole bunch of things.
And well, it doesn't draw a line in the sand.
The court doesn't say here's, here's where relevant to is reasonable, and here's where it's not.
It basically, you know, sends a message that it's not what they've been doing is not reasonable.
And I think it, it should, although who knows, because it's surveillance, and we'll never know and everything happens in secret.
But it should mean that they can't do what they've been doing, regardless of what happens in Congress over the next couple weeks.
Right.
Although didn't the court even say, you know, we're not telling you to stop because we're going to let Congress go ahead and have a try at fixing it at least?
No, they said it's gonna, it's gonna expire in two weeks.
And so, and keep in mind, I mean, so they heard the hearing for this back in September, and some of the precise language that showed up in this opinion, which was long, I mean, it was like 87, 97 pages, the main one.
But nevertheless, that precise language that they used in their hearing last September, they used in this, in this opinion, they knew, I got to believe that they knew exactly what they were going to write for the last however many months of that, that's like, eight months.
And that they probably waited to see whether Congress would fix it on its own in November.
And then, you know, I do think they waited until very timely fashion to drop this.
As Mitch McConnell starts talking about a clean reauthorization, and so on and so forth, because this will create real problems for that.
And I think it should.
I mean, I don't, unfortunately, I don't think, you know, privacy skeptic, I don't think people who fight for privacy will use it as well as they should.
But it should give skeptics of surveillance more leverage in negotiations over the next two weeks.
I just think they'll mishandle it.
So.
Hmm.
All right.
So now, but can't they just go to FISA Amendments Act 702, which doesn't that legalize these general warrants?
I mean, quote, unquote, legalize these general warrants for?
Oh, no, they can't.
Although, you know, my opinion of USA Freedom Act, which is not shared by the people who are boosters for it.
But my opinion of USA Freedom Act is basically what it's going to do is bring metadata production for anything that resembles a call.
So not just the call that you and I are having right now, but also Skype and iMessage and things like that, that they probably aren't collecting or aren't collecting all of right now.
I think that they're going to go to the same prison providers and get them to use their prison system to turn over data that way.
So, in other words, I'm beginning to call this prison light and I mean that very seriously.
So I think that they will, under USA Freedom Act, use that same kind of infrastructure to turn over data data quickly.
But Section 702 can only be targeted at a foreigner.
So they do they I mean, if you think about it, Section 702 can only be targeted at a foreigner.
It has to be done with the assistance of a U.S. provider.
So if you've got a foreigner using Google, then they can and do get one hop of metadata off that.
And FBI makes separate databases of the metadata that comes out of that collection and they copy it and share it everywhere and so on and so forth.
So they already do that with I mean, that's one of the things that replaced the Internet Dragnet after 2011 is just getting the meta, you know, fixing the way that they collect metadata off of existing prison collection.
But that can only be targeted at a foreigner.
And so, you know, if you're the guy that they're going after, they can't target you in that fashion and they can't target you in the United States in that fashion unless they have a whole lot more evidence against you, which is usually what they use the metadata for is to get the evidence and give a spice of course.
So that's the reason they can't use 702 in that way.
And the other thing is most foreigners aren't getting their phone service from AT&T and Verizon.
So they might be getting their iMessage service from Apple using an iPhone, right?
But they're not getting their actual phone service from AT&T and Verizon.
So, you know, you can't go to them to get one hop of phone Dragnet data that way.
They do get that overseas.
You know, they steal everything overseas and get the metadata and that's how they use it.
So they still need something in the United States to collect phone records if they want to target this conversation, for example, because neither of us is foreign.
Gotcha.
All right.
Now, hold it right there, everybody.
We're going to be right back with Marcie Wheeler, the great Empty Wheel at EmptyWheel.net.
Wonder if I ever asked you why that's your name.
Maybe I will on the other side of this break.
And then more about the USA Freedom Act Redux after this.
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All right, guys.
Welcome back to the show here.
I got Marcy Wheeler on the line.
Empty wheel.
I did want to ask you about that.
I don't think I ever asked you about that.
Maybe I did ask you about that.
You know what it is?
I think I remember asking you about that, but I don't remember what your answer was.
We'll see if it rings a bell.
That's because it's really not that exciting.
What's the answer?
My first initial is M.
My middle initial is T.
And my last name is Wheeler.
And so when I first went to University of Michigan, my unique name on email was Empty Wheel.
I got you.
That's a cool story.
That's a very cool story.
And that actually proves that, no, I have not asked you that before because I would have remembered that.
See, what's the best about that is everyone thinks Empty Wheel is like really Zen.
And the fact that it wasn't intended to be Zen, but it is sort of Zen, makes it all the more Zen.
Yeah, that's great.
It's doubly extra Zen, like we need to poop.
So now, everybody, if you go to EmptyWheel.net right now, Marcy's blog, here's what you'll find.
You'll find a blog entry that's a top 10 list of articles you need to read by her about the new Freedom Act.
And then the top one is a top 10 horrible things about the Freedom Act.
I guess the rest of those articles are elaborating each of these major points, but maybe we'll just stick with the top one here.
Top 10 goodies, USA Freedom Redux, you call it, gives the intelligence community do-tell.
Well, and let me be clear, this post was not intended to be the things I hate about USA Freedux, and I may get around to writing that post.
I wrote this post because Mitch McConnell is running around saying, I'm going to do a straight reauthorization of this bill, blah, blah, blah.
And that's, excuse my French, but that's BS, because there's too much that the intelligence community gets from this bill that they don't have now, or at least that they shouldn't have given everything they've publicly claimed about the Phone Dragnet.
So, for example, right now, all of the Phone Dragnet orders that the FISA Court signs off on, they all say you can collect telephony metadata, and that should limit the government to collecting things like your handset identifier, your SIM card identifier, phone calls that in some way or another cross the telephony system, okay, delivered to your home on a telephone line or delivered to a cell tower on a telephone line.
The USA Freedux is technology neutral, so it says you can use this to get call records, and it does name the device identifier and SIM card as one of the things that might be provided, but it never says this is just telephony calls.
And so I read that to mean that the intent, and there's good reason why this may be the intent, and this is why I'm sort of saying I don't necessarily hate these things about USA Freedux, but these are things that the IC loves.
There's very good reason.
Just for example, if you use iMessage over Wi-Fi, that likely bypasses the telephony system entirely, and the government knows this, and they want to get all the metadata from iMessages, and so it's likely that under USA Freedux, they'll go to Apple and say, can I have the metadata from all the calls of these bad people that we're tracking?
And if they're really bad people, that's fine, you know, it's not such a bad deal that they'll be able to expand the kind of calls, broadly defined, that they're getting.
But that is something that the IC, via numerous anonymous leaks, seems to be suggesting they can't get now, and they'll be able to get under this new bill.
That's just an example.
And you're saying this wouldn't be that bad, assuming these are legitimate criminal suspects and they have probable cause to do this kind of search, right?
Yeah, I mean, if everything works the way it should work, then it should mean that what Dragnet exists will be more...
I mean, let me give you an example.
So the Tsarnaev brothers, right, the Boston Marathon bombers.
The young brother, Jihar, the guy who's still alive, he got his phone service cut off in the weeks leading up to the attack, because one of his roommates didn't pay the bill.
And that meant he was communicating to his brother exclusively over Skype.
And had they had a real chip on these brothers, that means that the phone Dragnet would have still been useless, or of limited use, because...
Especially because the brother was using a T-Mobile cell phone, which they also claim they don't get, although that's probably false.
So in other words, there is very good reason to believe that some critical calls between the brothers that you would have wanted the metadata for would not be available under the current phone Dragnet, but probably would be available under the USA Freedom.
And that's what it's intended to do.
So that should be a good thing.
Maybe we can save free people's lives in the maiming of hundreds.
Yeah, assuming they stick to actual subjects worth investigating instead of persecuting all of us.
Bingo.
So let me go to number three.
Number two, very quickly, is right now the FISA court has approved an emergency provision for Section 215 for the Dragnet.
So the government goes to the court to have them review these orders before they use the Dragnet.
But in case of emergency, the government can bypass that and apply after the fact.
USA Freedex extends that to all Section 215 usage.
And again, there's a good reason for that, and that's that stuff the FBI used to collect using national security letters, so no court review.
For a variety of reasons, they're now using Section 215 orders, which has court reviews, so that's a good thing too.
The problem with that for the FBI is it takes a long time.
So it would be nice, you know, I can see giving the FBI a way to get this more quickly.
Again, they used to do this without any kind of court review.
They'd still get the court review, it'd come after the fact.
So they're extending the emergency provision.
Probably a reasonable request.
My concern, which is bullet number three, is that the way in which the current emergency procedure says if you get something under an emergency procedure and the FISA court reviews it after the fact and finds it illegal, the FISA court can make you throw out the data.
That's not true under USA Freedex.
Under USA Freedex, they can keep the data and the Attorney General promises it never gets used in any kind of proceeding, but we know they parallel construct all this anyway, so it's going to, you know, they can still use the database.
So that's my concern is it provides this loophole for the government to do illegal things, and I think that they would get away with it under this bill, so that's just an example.
And that's one that's inexcusable.
It shouldn't be there.
Zoloft, Grin, and Ted Poe tried to fix it in HJC, and Jim Sensenbrenner said fixing it would blow up the bill, so, you know, that leads me to believe they have ill intent because it should be a nondescript fix to actually fix it.
Okay.
And now, is there any chance you could do one more segment to go through the rest of the list, or you want to leave it at that and got to go?
No, I can do it, yeah.
Okay, cool.
I know you like writing and got a lot of writing to do, but all right.
Yeah.
Thanks very much.
Hang tight, and we'll be right back.
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All right, you guys, welcome back to the show.
Talking with the great Marcy Wheeler from emptywheel.net about the new version of the USA Freedom Act, which I think, according to legend, started out as a real reform and turned into a Feinstein kind of a thing.
Now, this is a really important point.
Like all the points you make, Marcy, it's a complicated one, but I'm trying to get my head around it here.
I think what you're telling me is that they have this emergency provision where they get to use Section 215 to collect a bunch of data on us, and then under this new law of the Patriot Act, and then under this new law, though, they get to keep it all, and there's no restriction on what they can do with it when they keep it, which means that they can take national security agencies spying with no kind of warrant at all type information and hand it off to other agencies to use to then create parallel construction bogus stories in order to build cases against people.
Yeah, it's not exactly.
There is a restriction.
They cannot, so say they collect all of my internet activity using Section 215, and then the court reviews it and says, oh, the only reason you picked on her is because of her protected First Amendment activity, and that's actually not implausible because the FISA court felt the need to add in a reminder for the government that they have to give, that they can't collect on people just for First Amendment reasons.
So they collect on me.
They've got the data.
The FISA court says, ah, wrong, bad use of the law.
What the law says, what USA Freedom says is that they cannot use it in any official proceeding, so they can't enter that evidence into a trial.
They arguably can't use it to put me on the no-fly list, but that same language is used all the time in government, and what we know from a variety of reasons is what happens in FBI, and most of this data will come into the FBI.
There's a department in the FBI where they'll look at something and then write it on a new piece of paper and go get a traditional subpoena for the same information and then hand the traditional subpoena information to a field office and say, look at this lead, and the FBI field office will only touch the traditional subpoena information.
They'll never touch the USA Freedom Act information, but they'll be able to use it.
So in other words, the FBI, they don't have to take it out of their brain, out of their bureaucratic brain.
They can act on the information.
They just can't use it as evidence, which they don't do anyway.
As it is, they do just what I said.
They go and get a subpoena and never show you the actual data that they got from USA Freedom Act.
In other words, their rules for spying on you have long been loose enough for them to do all kinds of things to you or collect data on you in all kinds of ways that they can't use against you in court, but it doesn't matter.
It still helps them build their case against you anyway, and then they just use other things against you in court when it comes to that.
Right.
Exactly.
But isn't this somehow illegal, all this parallel construction?
Is that the American way?
It's not the American way.
I increasingly believe there's some kind of OLC memo that says this is all okay that we don't know about, but it shouldn't be okay.
That's not the way the Fourth Amendment is supposed to work.
It sounds like in a sense it makes it where they can target people and then they can dig up all kinds of things on you in ways that would never stand up in court, but no matter.
Then they just hand it over to somebody else, that kind of thing.
Right.
Exactly.
In other words, you really are the best example of this, is you're exactly the kind of person that they would try to target to see if they can get something on you, because otherwise you're going to keep writing it emptywheel.net, and they probably hate that.
Well, I don't know.
I think they ...
I don't know.
Whatever.
Whatever.
Who knows?
The other thing that this bill does, which I'm fairly concerned about, is the way they've written the hops is weird.
They haven't written the hops to say you can get one round of phone calls and you can get another round of phone calls.
They've said you can get one round of call detail records, and there's some funny stuff in that definition.
Then the second hop, they say you can use session identifying information to produce a second set of call detail records.
That suggests, particularly because of the way they've defined session identifying information, that suggests they could use either online activity, because online activity is defined in sessions as well, or they could use things like location.
It's not that the government would get your location data.
It's that they would ask AT&T to use your location data to figure out who you've been meeting with or who you travel with or what have you, and then the government would give that information back to the government just in the form of your travel companion's device identifier.
That's the kind of thing that I think this bill allows.
By hops, to be clear about the hops thing, that means if I have somebody, their record on my cell phone and I call you, then if they're investigating somebody I talk to, now they can investigate everybody in your cell phone.
That's what you're talking about.
That's my fear.
And on your computer and everything else.
Yeah, that's my fear.
I think that if I'm right about what this hop does, I think there are good reasons for it as well.
Because for reasonable reasons, although this is the kind of thing that really should be reviewed in a court because it's unclear how good their numbers are.
I mean, if the accuracy on this is 95 percent, which is some of what AT&T does, some of what AT&T and very similar stuff does, that's 5 percent people who are innocent who might get sucked in.
So that's not necessarily a good thing.
I think, I mean, one of the uses for this hop is to go to AT&T and say, we think this person keeps getting a new cell phone.
Can you figure out what the person's new likely cell phones are?
And that's a technique that's used all the time in law enforcement.
And given how often bad guys get new cell phones, I shouldn't use that phrase, I'm sorry.
Given how often people who are trying to hide their tracks get new cell phones, that's an abuse, probably, provided that the court can vet whether they're using good numbers.
But I think the way they've written the amendment, it invites abuse.
It invites the kind of thing you've said, which is that you're really going to get inside somebody's cell phone, you're really going to get inside somebody's browser, and once you do that, the sky's the limit.
So that's my concern is that, and frankly, nobody knows.
I'm the only one in creation who's actually really, I'm not quite the only one in creation.
But nobody knows what they're doing with this hop.
And everyone just sort of assumes that it's a traditional hop, and that's not how it's written.
Is there a line graph somewhere that shows how many investigations with how many hops equals how many total people and how many investigations it would take at three hops to end up equaling open access to the entire population of the country, basically?
There are a number of studies.
PCLOB has some estimated numbers, which of course they've looked at the reality, so their numbers.
And theirs were huge.
I mean, they suggested, and I forget their numbers, but they suggested like millions that would get sucked up off of what the NSA is currently doing.
There's a guy at Stanford who did some analysis of a group of 300 people and found that they were all connected at two hops, or almost everyone was connected at two hops because they all subscribed to basically two or three cell phone carriers, and they were all calling to the same cell phone voicemail number.
Oh, yeah.
What a great loophole that is.
Right.
As it is, NSA tries to take that stuff out.
But the problem is that's not regulated.
Nobody's going in to see.
I mean, it's a way the NSA could set the aperture very broadly and could set it very narrowly, and no one really is overseeing it at that level.
And so you're right.
It could be, you know, like, and I suspect it was set very broadly before 2009, and where they were sucking in completely innocent people, because once they had sucked them in, it gave them the right, if you will, to start looking into their underwear drawer.
Right.
All right.
And I'm sorry we're out of time, but everybody, that's good.
Leave you hanging, wanting more.
Go to 10 Goodies USA Free Ducks gives the intelligence community at EmptyWheel.net.
Thanks, Marcy.
All right.
Take care.
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.
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