07/13/12 – Trevor Timm – The Scott Horton Show

All right y'all, welcome back to the show.
I'm Scott Horton and our first guest on the show today is Trevor Timm, activist and blogger at the Electronic Frontier Foundation, specializing in government secrecy and surveillance.
And he's the co-author of this piece in The Guardian with Cindy Cohn.
It's called The NSA's Warrantless Wiretapping is a Crime, Not a State Secret.
Welcome to the show.
Trevor, how are you doing?
Good, thanks for having me.
Well, you're welcome.
Thanks for joining us.
I really appreciate it and I appreciate this article.
I hope lots and lots of people read it.
It's a story that's kind of fallen off the radar screen, I think, for a lot of people.
There's so many outrages in government abuse of power and foreign and domestic national security policy that people just get, I don't know, what's the word for it, inured to it.
Is that the right word?
They get used to it and it's just one more outrage.
This is so particularly outrageous, it seems like we ought to try to continue to draw attention to it.
So I appreciate the fact that you did that.
Here's this piece in The Guardian.
You begin by saying that this week, cell phone carriers publicly reported that U.S. law enforcement made an astounding 1.3 million demands for customer text messages, caller locations, and other information last year.
There was a flood of press coverage, you say, but I didn't see it.
So I'm glad that you mentioned it here.
And then you say in here that much of this is just warrantless.
The cops of all different jurisdictions can just go to the telecoms and just ask for whatever information they want?
Yeah, it's actually kind of scary because these cell phone companies have refused for years to issue public reports about how many demands law enforcement is making for this type of information.
I mean, the most dangerous information that they're getting without a warrant is definitely GPS location information.
So your cell phone sends a signal back to a cell phone tower every seven seconds, basically giving your exact location as long as your cell phone's in your pocket, whether you're using it or not.
And they can get this information without a warrant or actually any court order at all.
They can just issue a subpoena to the telephone companies, which they're the ones signing.
It's just a written request, basically.
And the cell phone companies have to give it out.
And actually, the 1.3 million number is a huge, huge number.
But the real number is actually very much bigger than that.
T-Mobile had about 200,000 requests.
They didn't even report to the congressman who released these numbers.
So that brings up to 1.5 million.
But it's actually even higher than that because a lot of times they get the cell phone location information by what are called cell phone tower dumps.
So the police will basically issue one request to a telephone company, and then they'll give them all the information from one cell phone tower, which contains all location information for anybody within a certain radius of the tower within a certain amount of time.
So with one request, they could end up getting hundreds or thousands of people's information when they're only really looking for one suspect's location.
And they keep it all anyway.
Yeah, exactly.
And so they may be looking for one suspect, but now they have all this other information which they can keep and use for whatever they want the next time.
Yeah.
Now, okay, we got to get to, you know, George Bush and the NSA and all of that here in a minute.
But on this, whoever told the local cops that they can do this, the state and local police, I mean, the men in black showing up, breaking the law, getting away with bloody murder at the very highest levels of government.
That's a whole other story.
And I'd like to let you tell it.
But the deputy sheriff can just walk into the office and say, tell me where everybody is all the time because he feels like it.
Who said so that he could?
Yeah, I mean, that's the problem.
You know, this, there was never really a law written around GPS location information on your cell phone.
So cops just figured out that they could request it without getting a warrant.
And actually, a lot of courts have ended up disagreeing with them.
There's a few circuit opinions, which has said that they actually need to get warrants.
But since it's not settled law, and there are differences of opinion within courts and the Supreme Court hasn't directly ruled on it.
They've just been continuing to do it.
And unfortunately, Obama administration has been arguing that there's no reasonable expectation of privacy with the cell phone location information, which is making it harder for to get a law passed.
You know, there's a there's a law in Congress right now called the GPS Act, which would just give make it a requirement that police need warrants for this type of information and would solve this problem very easily.
Unfortunately, hasn't gone anywhere.
But hopefully this new revelation will kind of speed the process along.
Wow.
Yeah, I'm sorry to be redundant on the show.
I keep saying how shocked I am to realize I really am living in the future 2012.
Here it is where, of course, everybody knows that the cell phone company can have access to where you are as long as you have a cell phone in your pocket.
It's always been like that.
But now the the every level of government just outright claims and all the way up to the president, that no person has any reasonable expectation that the police are not constantly looking at their location, and they never did.
And therefore, the government has the right to seek that information wherever they want, because you should have already assumed that they were doing it.
Basically, that's their argument.
Yeah.
And like you said, it's not just the FBI or the federal government, it's local police agencies who think they can get this data.
You know, Sprint has a service where all the local police need to do is pay $30 a month.
And they can just sign into a website and track as many people as they want in real time.
Right.
And they just take all that money out of the spied upon his bank account anyway.
Take it right out of their check.
Yeah, it's the funny part.
So the taxpayers are basically paying for themselves to be under surveillance.
Wow.
So yeah, that really is amazing.
I guess it all goes back to, you know, whether the Constitution allows everything it doesn't specifically forbid, like Alexander Hamilton said.
So here we go.
As long as there's such a thing as GPS now, and the Constitution doesn't forbid the government collecting everyone's GPS data, well, then by golly, they have a right to all of it.
Yeah, well, hopefully, the Supreme Court is eventually going to rule on this and rule in the favor of American privacy.
Earlier this year, they had another GPS case where the issue was, police were attaching GPS devices to people's cars.
And the Supreme Court actually ruled that unconstitutional.
And they said that they need a warrant to attach a device to somebody's car.
Unfortunately, the ruling was narrow.
So it didn't focus on GPS devices, like already in your cell phone already in your pocket.
It was just dealing with the specific physical attaching of the device to the car.
But the majority of the court gave strong indications that once this type of issue comes up to them, again, that hopefully that they're going to rule in favor of the American people's privacy instead of, you know, law enforcement's ability to just do whatever they want.
I remember on that show, The Wire, they make such a big deal of showing the cop's point of view that these evil, greedy corporate criminals, they're, they're just so selfish, they don't want to turn over the information that the cops need to solve the crime, if only they would cooperate.
And then finally, they come up with an extra legal way to kind of strong arm them and threaten them that they better turn over all this information and try to get the whole audience rooting for the cops against the phone company that it's not even that they're really trying to protect their customers' privacy, right?
They really are just busy.
And it's a lot of work.
The most amazing thing is that this argument is that, you know, obviously, there are legitimate investigations cops need to undertake, and they can just go to court and get a warrant for this information, just like they've been doing for other information and other investigations for over 200 years now.
This whole warrant requirement is all of a sudden this, you know, insurmountable hurdle that they're that they're throwing up that they're saying, Oh, it's basically impossible for us to do this.
When you know, that's just the basics of the Bill of Rights and how this company company or country has been operating for over 200 years.
And for them to just now all of a sudden complain, it's just kind of disingenuous.
Yep.
Well, and just think too, it's my birthday.
So I'm realizing how old I am.
There's an entire generation of people who don't even know what it's like to not live in a society with cameras on every corner and, and without having the expectation that a cop can't look at your GPS data whenever he feels like all right, we'll be right back with Trevor Tim from EFF right after this.
All right, y'all welcome back to the show.
I'm Scott Horton.
I'm talking with Trevor Tim from the Electronic Frontier Foundation.
It's a good thing there's an Electronic Frontier Foundation.
And basically, they sue the government to try to get them to stop doing terrible things and to get the truth about the terrible things to the people so that we will help them stop the government from doing the terrible things.
So we're talking about the local cops and their access to all your GPS data, your text messages, and other things without any kind of real oversight all across the country.
But now we got to step it well back in time just a little bit but up a couple of notches in terms of import here really.
And that is the giant NSA warrantless wiretapping that surfaced in the New York Times piece by Reisenlichblau back in 2005.
And then there's the great book The Shadow Factory by James Bamford all about it.
And I think a couple others actually as well.
And this is the criminal activity that George Bush confessed to and said, yeah, what are you going to do about it?
And the Democrats answered nothing.
And so because they were in on it too, so it kept going.
But then they legalized it with the FISE Amendments Act of 2008, which Senator Obama voted for.
And President Obama has continued with all that this whole time.
So is that basically right that they don't need a warrant anymore?
They basically have a general warrant now for intercepting emails, phone calls, whatever they feel like.
Is that right, Trevor?
Oh, it's half right.
Because, you know, like you said, the FISE Amendment Act definitely weakened privacy protection.
Actually, the first thing it did was gave complete immunity to all the telecom companies like AT&T for engaging in this warrantless wiretapping and helping the NSA.
You know, it was blatantly illegal for them to be doing that.
And actually, we at the Electronic Frontier Foundation sued all the telecom companies.
And in response to our lawsuit, Congress actually passed this immunity bill, which protected them from their illegal behavior.
But the second thing the FISE Amendment Act did was really watered down privacy protections for Americans talking to people who aren't Americans overseas.
And before the government did need a warrant for that when Americans were talking to other people overseas.
But now, like you said, it can just be kind of this generalized warrant, which kind of just a dragnet that touches many, many people.
But still, even with the FISA Amendment Act, the government has been reported by multiple news organizations since then is still wiretapping warrantlessly purely domestic communications, Americans between Americans.
And that is still illegal and unconstitutional.
Yet, according to the New York Times in 2009, the NSA was still collecting purely domestic communications in what they said was a quote, significant and systematic way.
And then, you know, in 2010, the Washington Post was talking about how every day the NSA collects and stores 1.7 billion emails.
And even in just this past March, Wired reported about this huge data center that the NSA is making in Utah, which is meant to basically store a copy of the internet, if you will, which would include pretty much everybody's communications.
What do they think of next?
Now, see, here's the fun part is everybody always imagines that giant room full of NSA eavesdroppers, like in the Simpson movie, where the guy's like, I found him, we found someone we were looking for.
But really, it's not like that, right?
You just all you need is a program that, you know, somehow has the right mathematics in it, the right algorithm, or whatever to surf on all that data and weed through and look for things that actually matter to then show to a person.
Yeah, so they have these, these bizarre definitions of words that we would, you know, not use in real life.
So when we think of intercepting and storing, we think, okay, they're taking our data and putting it on their data centers.
But their definition, which was actually classified top secret up until a couple of years ago, you know, their definition does not include if a computer is word searching your email.
So if you're writing an email, and the contents of it are getting searched by the NSA's computer for certain keywords that they think are dangerous, or can get flagged, that doesn't count as a search in their in their mind, even though every normal person would think so.
It doesn't count as a search until they flag the words, and then they send it to a human to then look at.
And so they really kind of just warp the definition of these words to the point where they're meaningless.
And so they have these complex algorithms who are searching everybody's emails.
And they don't think that that's a search.
Yeah, well, or it's not that they don't think that it's that they're trying to get away with.
If I understand you're right, though, about what you say about the FISA Amendments Act of 2008, they didn't really legalize a general warrant for American to American communications.
They're just still doing that anyway.
Right, they the general American to American communications is still what is still a violation of the Fourth Amendment.
And they claim that they because of this act that they were reforming what they were doing.
But even since then, there has been multiple reports of them that they're still even going even though the FISA Amendment Act weakened privacy protections, they're still going way beyond that.
And they're still collecting purely domestic communications, which is still illegal.
And so our lawsuit against the government has been going on for for about six years now.
And you know, we're suing under the original FISA Act, because, you know, these violations took place under the Bush administration before the Amendments Act passed anyways.
And so we have been arguing this case in court, and the government has been throwing up roadblocks, procedural roadblocks, trying to make sure that this case is actually never heard on its merits.
Right now, they're arguing that the case that they can invoke the state secrets privilege, which means, which is a crazy argument, considering all of this public information, we have hundreds of hundreds of pages.
We have a whistleblower from AT&T who took pictures of the NSA secret room and had has blueprints and showed exactly how it works.
And we actually have three whistleblowers from the NSA who just joined our lawsuit and submitted evidence explaining how the NSA was illegally capturing American communications.
Yet we have all this evidence.
But they're claiming that because the warrantless wiretapping is a state secret, and it would hurt national security if it was litigated, then the court should dismiss it entirely.
And the crazy part about this is that their argument is, even if all of the allegations that we say are true, they still should be immune from having to go to court about this, because it could potentially hurt national security.
And now that's just a ridiculous argument, considering how much, you know, virtually every major newspaper in the country has reported on this program, yet the government's claiming, you know, a fact is not a fact until they admit it is.
And it's just preposterous at this point.
Right?
Well, and especially when the whole point is, it's clear that these are criminal violations, that you know, FISA is a felony statute, right?
Five years in prison and $10,000 fines, and these kinds of things are, are the punishment for breaking it.
So the secrecy thing is, you know, clearly just euphemism for immunity, or impunity, I guess.
Yeah, they're trying to use the government secrecy in the classification system to somehow wall themselves off from any sort of accountability.
And so they're saying if something's classified, then that means there's no way for you to know about it, even if you do know about it.
And that we can't get in trouble for anything we do, as long as we stamp it top secret.
And that is just antithetical to every American value and the Constitution.
Yeah, well, why would Congress in 1978 even pass a law?
Why would why would the Democrats in 2008 even amend it?
If the whole thing is that government can do whatever they want without any laws?
Yeah, the actually the really interesting part is beyond how much information of this is already in the public's eye.
The 1978 FISA statute specifically exempts the state secrets privilege from being used in situations where people invoke FISA.
So there's wording in the statute that explicitly says people can go to court and challenge the government under this statute.
And so not only...
Really?
Yeah.
Like, so we, you know, there's been a couple of state secrets cases, like there's a couple torture cases where there had been mountains of public evidence, and the state secrets privilege was was being used and, you know, heavily criticized in the media.
But on, you know, that's the same situation here.
But on top of that, we also have the language of the FISA Act, which explicitly excludes the state secrets privilege, and the government is still trying to use it.
So it should be interesting to see how this turns out in a few months.
Yeah, well, good luck to you guys.
And thank you for suing them.
Because that's what we need is things like yours, the Electronic Frontier Foundation to sue the government all damn day.
I'm sorry for calling you think tank, whatever the hell you're suing them.
Keep suing them.
Thank you.
Trevor Tim, everybody.
EFF.org