Blogger Marcy Wheeler discusses how Congress’s NSA “reform” bill is actually enabling the NSA to spy even more broadly than before.

Transcript

06.03.14 – Marcy Wheeler

Alright y’all welcome back to the show here, I’m Scott Horton this is my show, The Scott Horton Show. Our first guest on the show, maybe our only guest on the show, I’m still waiting to hear back from a couple of people. Anyways, it’s the meticulous Marcy Wheeler from www.emptywheel.net, that’s her blog -some other great writers over there, Jim White and Bmaz, (I think that’s it?). Anyway, they writer great stuff, especially Marcy.

As Snowden Leak Anniversary Approaches the Intelligence Community Prepares to Declare Victory. Oh man, I don’t like your headline at all Marcy – welcome back to the show.

MW: Sorry to piss everyone off!

SH: Well you know the other day the NBC poll says that 40% have no opinion at all and the plurality oppose Snowden and what he did and they don’t think they had the right to know. But then another poll came out yesterday I believe which had another conclusion to it, I think I have it here somewhere, this one was a Newsweek poll – most in the US think Snowden did the right thing and y’know I would have to assume that even if just a bare majority right, a bare majority has got to be basically good on Snowden – what he did and what ought to be done, which would be some kind of real rollback of the NSA back under constitutional limits right? There is a consensus for that? Not in DC but among the American people don’t you think?

MW: Yeah but the problem is that what the programs involve I think hasn’t been really communicated well to the majority of the American people and therefore DC thinks that they can get away with this power play that they pulled at the end of what I call the US Free-Dumber Act. And by that, I mean I know for example that top intelligence officials believe that the only thing that Americans care about is getting our phone records out of the NSA’s hands, and that’s probably true, I think that you could probably verify that in polls but that is not the only way or even the worst way that the NSA is infringing on our privacy and so what the bill did – I mean basically what happened is you had the USA Freedom Act which was Sensenbrenner Leahy really good bill, didn’t fix everything but it fixed a lot of things and then Mike Rogers threatened to basically go around the House Judiciary Committee where Sensenbrenner is a senior member, John Conyers is the top democratic member, Jerry Nadler senior democratic member and Bob Goodlatte was kind of letting that happen. To prevent that from happening those three: Conyers, Nadler and Sensenbrenner and actually a couple of other people negotiated this deal which was still the USA Freedom Act, but I started calling it the USA Free-Dumb Act because it gutted key parts of it.

That was fine, it made it through the House Judiciary Committee, even people who were skeptical said y’know, ‘We’re gonna do this because it is the consensus’, it made it through the House Intelligence Committee and then right before it came to the Floor of the House it got changed in much more significant ways and what I know the US Free-Dumber Act and it things to parts of, to surveillance programs where there hasn’t been as much attention and did things that I think really seriously got the oversight over these programs and also expand the reach of the phone dragnet in key ways.
SH: Okay now I want to delve into those details here in just a second because it is very important. First of all I want to make sure I understand you right. It was already the Free-Dumb Act but now it is the Free-Dumber Act so you had already added a ‘b’ and now you have added an ‘er’ because it is even worse – it never was real freedom unless it was maybe free with an ‘h’ like the former head of the FBI.

MH:{laughs} No the original bill was a great bill and I think what one of the really telling aspects of the legislative history of this is that over half of the people who originally co-sponsored the USA Freedom Act – the original Leahy/Sensenbrenner act, voted against it in the House and that was having almost no time to learn anything to learn about the bill. They changed it at the last minute and it was kind of a last minute scramble to figure out exactly what the bill did and with that a lot of the co-sponsors just bagged on it and it passed with the support of people that wanted to support that compromise – who believed what Bob Goodlatte was telling them about surveillance, even though I don’t know why they would. And that is where we are at now.

SH: Alright, so to get back to the beginning here real quick – about the public opinion – and I know that you don’t run Gallup or anything and you don’t get to do the polls yourself or anything like that, but I wonder if, obviously you’re very plugged in to this issue on all levels and my impression is that- one of the things you talked about is that people don’t want their meta-data taken or whatever – the phone call stuff – it seems to me like the major kind of TV news narrative here is, ‘Oh my God the NSA is tapping everybody’s phone, ohhhh nooo, they’re not tapping everybody’s phone they’re just collecting the meta-data and yeah maybe that is a bit much ok’, and then that is the whole thing. Everybody is really relieved because of the kind of false alternative that y’know they’re listening to all of us all the time and as long as that’s not the problem, well y’know meta-data – I know what data is, but meta-data? Now I gotta go find a glossary and – people kind of phase out and they think it doesn’t matter that we’ve had, I don’t know what – three dozen, four dozen major stories out of these NSA files already. That’s the only thing that they know about so if you’re going to reform the phone records thing okay it’s fine. But they didn’t even hear the part about how they give their entire intelligence haul every day over to the Israeli’s and they’re keeping track of everywhere your cell phone has been for the last five years and they found their loophole where they can just take everything off of Google servers as long as it’s an overseas server under some executive order you’ve never heard of – they’ve (the American people) have never heard all of that.

60 Minutes never did a ‘here is everything we have learned so far everybody’ or anything like that and so they’ve really kind of neutered it as an issue. Now it’s more about Snowden and whether you like him or not.

MW: Right and I think that that was a deliberate strategy from the very beginning – the Government wanted to do a limited hangout just on the section 215 – the Phone Meta-Data Program and by the way that story you just told about what people didn’t get to hear, they also didn’t get to hear that Michael Hayden recently said in an interview that ‘we kill people based off meta-date’, so that should dissuade anybody that anything is JUST meta-data because it can get you killed.
The phone meta-data and what was called PRISM, which is part, the biggest part, but it is part of what is called Section 702 – Content Collection. But they didn’t tell us about the two more, I mean eventually this was declassified, but what the Government didn’t want to talk about is that in addition to going to Google and collecting emails from people talking to people overseas on Google, they’re also accessing up to 75% of the internet traffic coming in through the phone switches – they’re doing packet sniffing on that to find certain selectors – so either email address, phone numbers, malware addresses, code, things like that, so that technically exposes up to 75% of everyone’s international internet traffic to the NSA through a packet sniffer – through an automated kind of robot checking to see what you email.

And then the other program which I think is even more problematic is, once they’ve collected those emails between you and somebody overseas off Google, the Government can go in and search it. They don’t need a warrant, search you. They can say, ‘Scott Horton I’m going to go look and see if you’ve talked to any of our targets that we’ve collected via Google, I’m just going to search on Scott Horton, I don’t have to get a warrant to do so, I don’t even have to think that you’re suspicious to do so, I don’t have to think you’re a terrorist to do so, I can just go in and say here is my foreign intelligence purpose and I will search on Scott Horton.’

SH: Alright now I’m sorry that we have to hold it right here and go out to this break. But when we get back we’re going to talk more with Marcy Wheeler about what we have learned from the Snowden documents so far and how outraged we should still all be and the problems with the reforms in Congress. Just a sec .
****************************************************************************
SH: Alright ya’ll welcome back to the show, it’s the Scott Horton Show, I’m Scott Horton and I’ve got the meticulous Marcy Wheeler on the show, and now I don’t have a producer, but I have a producer of nicknames for my regular guests because I lack the imagination to come up with good ones, so I got a whole list now. This is the meticulous Marcy Wheeler AKA Empty Wheel. That’s her name on the internet www.emptywheel.net is her blog and she is @emptywheel on twitter. She’s a really great writer and extremely meticulous in fact on – she can read legal documents better than the people who write them, it’s a real talent and it’s fighting for freedom so check it out there at www.emptywheel.net.

Here is the thing, I better shut up for most of this segment here because you have got some things to explain to us about how this new law makes things worse and so I guess, I saw you talking about this on twitter, you call it the Pizza Problem is that right?

Oh, I hit the wrong damn button.

MW: Shall we talk about pizza?

SH: Yeah the Pizza Problem. We talked about this a couple of weeks ago on the show too right?
MW: Yeah the short version is you know if you think about it, the people you call, there is the people you call that you actually want to talk to and there is the people that you call to do functional things with your lives, like check your voice mail, or order a pizza, or call the Comcast repair man because everybody has to call the Comcast repair man all the time, and then there are the people you don’t want to talk to but they get through to you anyway – the telemarketers right? And those last two categories, the telemarketers and the Comcast repair men, and pizza men, are both people who may not be meaningful ties at all, certainly the telemarketers aren’t. The pizza man might be, you might love your pizza joint. You might hate Comcast but it is still y’know – but the calls between you and Comcast and then
between Comcast and your next door neighbor who’s also calling Comcast to get a repair, they don’t actually reflect a tie between you – all they reflect is that Comcast has a monopoly and we’re all screwed. And so, to make this contact chaining meaningful you have to take out all of those phone calls, otherwise everyone is connected – two degrees away. Something like 17% of people in a sample will be connected through voicemail box numbers. So ….

SH: It seems like the NSA might even prefer to weed out things like that right?

MW: Sort of. I mean yes …if

SH: Well if they have a specific mission, but I guess then again the real mission is to collect it all, so any excuse to collect it all.

MW: Right. I believe that they do this, it’s called high volume number, I believe that they do this, and do it quite seriously now, now that they have all the phone records because if not they’re getting just spam. I believe when they move things to the telecoms, the telecoms will be able to do a lot of it because the telecoms do it themselves. You know, they know who the Comcast repairmen are and they know who the telemarketers are, but they don’t know who the pizza joints are or they don’t necessarily know whether the pizza joints are meaningful or not but the NSA has an interest in getting meaningful data but they also have an interest in getting back to having as much data to play with as they have now and that’s part of the problem I think is that they have a real incentive to clean out that ‘garbage’ they also have an incentive to open the floodgates as widely as possible from the telecoms just to make sure …I mean quite honestly they do need to check the pizza joints every once in a while. There was a pizza joint that was at the center of the Boston Marathon attack and if that never got beyond Verizon under this new system they might not be able to check what kind of relationships actually work through that pizza joint.

So that is one problem is that they can suck in a lot more Americans through ..

SH: Not that they stopped that attack with their access to the pizza joint

MW: Yeah, exactly – didn’t do a darn bit of good. {laughs}

SH: But they mighta coulda, if they had been trying, if they hadn’t been busy entrapping some idiot into saying he loved Osama into a microphone.

MW: Right, or they apparently don’t track Russian extremists as closely as they track Yemeni extremists.

SH: Well, Russian extremists have their use, that’s why

MW: {laughs}

SH: That’s what Coleen Rowley said, y’know that was part of the reason they weren’t allowed to search Zacarias Moussaoui’s stuff, the month before 9/11 was because, `oh maybe he is a Jihadi, but he’s a Chechen Jihadi and we like those’.

MW: Yeah right

SH: Those were his ties anyway, through his brother etcetera ….

MW: So that’s one reason it may make it worse. They may be able to solve this problem, they may do it in good faith, I don’t know. Another reason that things are worse is because right now the FISA Court is really strict about what you can access this collection of all our phone data for and you can only do it for certain terrorists groups – a legitimate connection to certain terrorist groups and Iran. I don’t know how Iran got in there but they did, whatever. The way the law is written, what the court will be doing, is not reviewing whether a specific phone number has a tie to a terrorist group, it has to be relevant to a terrorist investigation, but that’s not what the court -I mean they’re going to review that relevance thing but we already know that they’ve blown up the meaning of relevance anyway.

What the court is actually going to be doing is reviewing whether or not you’re an agent of a foreign power. Which means it could include drug cartels, it could include hackers, it could include sympathizers of the Venezuelan Government, it could include – I mean all of a sudden the possible uses for this become much broader and in their – the rules about what you have to get rid of also use that standard – the NSA gets to keep everything for which they can invent a foreign intelligence purpose. So again, originally the bill said you had to have some tie to, you had to be relevant to a terrorism investigation, now it is just that you have to have some kind of foreign intelligence purpose – again broadens the use.

SH: Yeah well it sounds like – I mean if relevant means anything then anything means the whole cosmos right?

MW: Right. And foreign intelligence can work that way. The way the NSA does foreign intelligence assessments right now is they only get rid of something that obviously doesn’t have any foreign intelligence value and then y’know they say things like, ‘you might one day make a good informant’ – that could be a foreign intelligence purpose and therefore they’ll keep you, Scott Horton, even though you have clearly no ties to terrorists but you know, you might one day make a good informant for something entirely different.

SH: Amazing.

MW: And then there is a third way they do this, there is an emergency function where the Attorney General can certify that something is important and there they’ve just done away with the terrorism function altogether – they took out that language in the last revision and already the emergency provision is wide open for a variety of other reasons so, y’know the Attorney General can declare and emergency and not even have to pretend that there is any tie to terrorism. So they’re clearly broadening the scope of how they’re going to use this program.

SH: He could even probably declare that emergency in secret right?

MW: Of course, right. It will always be in secret.

SH: It wouldn’t have to be like, ‘I declare a national emergency’ and now we can at least debate that because it’s above board and we know that they’re using that excuse or something …
MW: You have to eventually tell the FISA Court and Congress but even if the FISA Court rules that the Attorney General was wrong, it wasn’t an emergency, it wasn’t a good use of the data, guess who is in charge of making sure …..but it’s ripe for abuse. We know that the FBI has abused these things in the past so y’know you cannot assume that they will not abuse this going forward because they already have.

SH: You know it reminds me of George Bush in the 9/11 commission – where like ‘alright we’re going to pretend to investigate the worst failure of the Federal Government ever’ but really this is an outcome based commission. I think he even used that term -this is an outcome based commission and on the last day it’s going to recommend that we create a Department of Homeland Security and that is exactly what we’re going to do, ‘So get to work recommending a new Government agency everybody’, and that was the point of it, it wasn’t supposed to be a real investigation of the attack it was supposed to be a real lead up to a recommendation to create a new giant Government agency and that’s kind of what it sounds like they’re getting away with saying here – ‘Oh you have a problem with the way we’re doing NSA business now huh, and you think that it’s not quite up to snuff, maybe you’re right, we need some reforms’, and yet they’re still the ones doing the reforming not us and so they get it their way.

MW: Yeah.

SH: One year out from the biggest scandal ever, and again ongoing as we talked about in the first segment, ongoing scandal. Just yesterday it broke that they’re collecting everybody’s Facebook images and every other thing they can find on Google Images and anywhere else in the world for their facial recognition programs …which to me is, if that stood alone, if nothing else was going on, it seems to me that that would be absolutely huge – that the National Government has such a broad take on all image on the planet but anyway
You’re journalism is always great which is why I’m always disappointed by the end of the interview, we’re not getting anywhere here Marcy, except maybe going backwards, but at least I know it, so that’s better. I appreciate your time as always …..

Alright y’all welcome back to the show here, I’m Scott Horton this is my show, The Scott Horton Show. Our first guest on the show, maybe our only guest on the show, I’m still waiting to hear back from a couple of people. Anyways, it’s the meticulous Marcy Wheeler from www.emptywheel.net, that’s her blog -some other great writers over there, Jim White and Bmaz, (I think that’s it?). Anyway, they writer great stuff, especially Marcy.

As Snowden Leak Anniversary Approaches the Intelligence Community Prepares to Declare Victory. Oh man, I don’t like your headline at all Marcy – welcome back to the show.

MW: Sorry to piss everyone off!

SH: Well you know the other day the NBC says that 40% have no opinion at all and the plurality oppose Snowden and what he did and they don’t think they had the right to know. But then another poll came out yesterday I believe which had another conclusion to it, I think I have it here somewhere, this one was a Newsweek poll – most in the US think Snowden did the right thing and y’know I would have to assume that even if just a bare majority right, a bare majority has got to be basically good on Snowden – what he did and what ought to be done, which would be some kind of real rollback of the NSA back under constitutional limits right? There is a consensus for that? Not in DC but among the American people don’t you think?

MW: Yeah but the problem is  that what the programs involve I think hasn’t been really communicated well to the majority of the American people and therefore DC thinks that they can get away with this power play that they pulled at the end of what I call the US Free-Dumber Act. And by that, I mean I know for example that top intelligence officials believe that the only thing that Americans care about is getting our phone records out of the NSA’s hands, and that’s probably true, I think that you could probably verify that in polls but that is not the only way or even the worst way that the NSA is infringing on our privacy and so what the bill did – I mean basically what happened is you had the USA Freedom Act which was Sensenbrenner Leahy really good bill, didn’t fix everything but it fixed a lot of things and then Mike Rogers threatened to basically go around the House Judiciary Committee where Sensenbrenner is a senior member, John Conyers is the top democratic member, Jerry Nadler senior democratic member and Bob Goodlatte was kind of letting that happen. To prevent that from happening those three: Conyers, Nadler and Sensenbrenner and actually a couple of other people negotiated this deal which was still the USA Freedom Act, but I started calling it the USA Free-Dumb Act because it gutted key parts of it.

That was fine, it made it through the House Judiciary Committee, even people who were skeptical said y’know, ‘We’re gonna do this because it is the consensus’, it made it through the House Intelligence Committee and then right before it came to the Floor of the House it got changed in much more significant ways and what I know the US Free-Dumber Act and it things to parts of, to surveillance programs where there hasn’t been as much attention and did things that I think really seriously got the oversight over these programs and also expand the reach of the phone dragnet in key ways. 

SH: Okay now I want to delve into those details here in just a second because it is very important. First of all I want to make sure I understand you right. It was already the Free-Dumb Act but now it is the Free-Dumber Act so you had already added a ‘b’ and now you have added an ‘er’ because it is even worse – it never was real freedom unless it was maybe free with an ‘h’ like the former head of the FBI.

MH:{laughs} No the original bill was a great bill and I think what one of the really telling aspects of the legislative history of this is that over half of the people who originally co-sponsored the USA Freedom Act – the original Leahy/Sensenbrenner act, voted against it in the House and that was having almost no time to learn anything to learn about the bill. They changed it at the last minute and it was kind of a last minute scramble to figure out exactly what the bill did and with that a lot of the co-sponsors just bagged on it and it passed with the support of people that wanted to support that compromise – who believed what Bob Goodlatte was telling them about surveillance, even though I don’t know why they would. And that is where we are at now.

SH: Alright, so to get back to the beginning here real quick – about the public opinion – and I know that you don’t run Gallup or anything and you don’t get to do the polls yourself or anything like that, but I wonder if, obviously you’re very plugged in to this issue on all levels and my impression is that- one of the things you talked about is that people don’t want their meta-data taken or whatever – the phone call stuff – it seems to me like the major kind of TV news narrative here is, ‘Oh my God the NSA is tapping everybody’s phone, ohhhh nooo, they’re not tapping everybody’s phone they’re just collecting the meta-data and yeah maybe that is a bit much ok’, and then that is the whole thing. Everybody is really relieved because of the kind of false alternative that y’know they’re listening to all of us all the time and as long as that’s not the problem, well y’know meta-data – I know what data is, but meta-data? Now I gotta go find a glossary and – people kind of phase out and they think it doesn’t matter that we’ve had, I don’t know what – three dozen, four dozen major stories out of these NSA files already.  That’s the only thing that they know about so if you’re going to reform the phone records thing okay it’s fine. But they didn’t even hear the part about how they give their entire intelligence haul every day over to the Israeli’s and they’re keeping track of everywhere your cell phone has been for the last five years and they found their loophole where they can just take everything off of Google servers as long as it’s an overseas server under some executive order you’ve never heard of – they’ve (the American people) have never heard all of that. 

60 Minutes never did a ‘here is everything we have learned so far everybody’ or anything like that and so they’ve really kind of neutered it as an issue. Now it’s more about Snowden and whether you like him or not.

MW: Right and I think that that was  a deliberate strategy from the very beginning – the Government wanted to do a limited hangout just on the section 215 – the Phone Meta-Data Program and by the way that story you just told about what people didn’t get to hear, they also didn’t get to hear that Michael Hayden recently said in an interview that ‘we kill people based off meta-date’, so that should dissuade anybody that anything is JUST meta-data because it can get you killed. 

The phone meta-data and what was called PRISM, which is part, the biggest part, but it is part of what is called Section 702 – Content Collection. But they didn’t tell us about the two more, I mean eventually this was declassified, but what the Government didn’t want to talk about is that in addition to going to Google and collecting emails from people talking to people overseas on Google, they’re also accessing up to 75% of the internet traffic coming in through the phone switches – they’re doing packet sniffing on that to find certain selectors – so either email address, phone numbers, malware addresses, code, things like that, so that technically exposes up to 75% of everyone’s international internet traffic to the NSA through a packet sniffer – through an automated kind of robot checking to see what you email.

And then the other program which I think is even more problematic is, once they’ve collected those emails between you and somebody overseas off Google, the Government can go in and search it. They don’t need a warrant, search you. They can say, ‘Scott Horton I’m going to go look and see if you’ve talked to any of our targets that we’ve collected via Google, I’m just going to search on Scott Horton, I don’t have to get a warrant to do so, I don’t even have to think that you’re suspicious to do so, I don’t have to think you’re a terrorist to do so, I can just go in and say here is my foreign intelligence purpose and I will search on Scott Horton.’ 

SH: Alright now I’m sorry that we have to hold it right here and go out to this break. But when we get back we’re going to talk more with Marcy Wheeler about what we have learned from the Snowden documents so far and how outraged we should still all be and the problems with the reforms in Congress. Just a sec .

****************************************************************************

SH: Alright ya’ll welcome back to the show, it’s the Scott Horton Show, I’m Scott Horton and I’ve got the meticulous Marcy Wheeler on the show, and now I don’t have a producer, but I have a producer of nicknames for my regular guests because I lack the imagination to come up with good ones, so I got a whole list now. This is the meticulous Marcy Wheeler AKA Empty Wheel. That’s her name on the internet www.emptywheel.net is her blog and she is @emptywheel on twitter. She’s a really great writer and extremely meticulous in fact on – she can read legal documents better than the people who write them, it’s a real talent and it’s fighting for freedom so check it out there at www.emptywheel.net.

Here is the thing, I better shut up for most of this segment here because you have got some things to explain to us about how this new law makes things worse and so I guess, I saw you talking about this on twitter, you call it the Pizza Problem is that right?

Oh, I hit the wrong damn button. 

MW: Shall we talk about pizza?

SH: Yeah the Pizza Problem. We talked about this a couple of weeks ago on the show too right?

MW: Yeah the short version is you know if you think about it, the people you call, there is the people you call that you actually want to talk to and there is the people that you call to do functional things with your lives, like check your voice mail, or order a pizza, or call the Comcast repair man because everybody has to call the Comcast repair man all the time, and then there are the people you don’t want to talk to but they get through to you anyway – the telemarketers right? And those last two categories, the telemarketers and the Comcast repair men, and pizza men, are both people who may not be meaningful ties at all, certainly the telemarketers aren’t. The pizza man might be, you might love your pizza joint. You might hate Comcast but it is still y’know – but the calls between you and Comcast and then

between Comcast and your next door neighbor who’s also calling Comcast to get a repair, they don’t actually reflect a tie between you – all they reflect is that Comcast has a monopoly and we’re all screwed. And so, to make this contact chaining meaningful you have to take out all of those phone calls, otherwise everyone is connected – two degrees away. Something like 17% of people in a sample will be connected through voicemail box numbers. So ….

SH: It seems like the NSA might even prefer to weed out things like that right?

MW: Sort of. I mean yes …if

SH: Well if they have a specific mission, but I guess then again the real mission is to collect it all, so any excuse to collect it all.

MW: Right. I believe that they do this, it’s called high volume number, I believe that they do this, and do it quite seriously now, now that they have all the phone records because if not they’re getting just spam. I believe when they move things to the telecoms, the telecoms will be able to do a lot of it because the telecoms do it themselves. You know, they know who the Comcast repairmen are and they know who the telemarketers are, but they don’t know who the pizza joints are or they don’t necessarily know whether the pizza joints are meaningful or not but the NSA has an interest in getting meaningful data but they also have an interest in getting back to having as much data to play with as they have now and that’s part of the problem I think is that they have a real incentive to clean out that ‘garbage’ they also have an incentive to open the floodgates as widely as possible from the telecoms just to make sure …I mean quite honestly they do need to check the pizza joints every once in a while. There was a pizza joint that was at the center of the Boston Marathon attack and if that never got beyond Verizon under this new system they might not be able to check what kind of relationships actually work through that pizza joint. 

So that is one problem is that they can suck in a lot more Americans through ..

SH: Not that they stopped that attack with their access to the pizza joint

MW: Yeah, exactly – didn’t do a darn bit of good. {laughs}

SH: But they mighta coulda, if they had been trying, if they hadn’t been busy entrapping some idiot into saying he loved Osama into a microphone.

MW: Right, or they apparently don’t track Russian extremists as closely as they track Yemeni extremists.

SH: Well, Russian extremists have their use, that’s why

MW: {laughs}

SH: That’s what Coleen Rowley said, y’know that was part of the reason they weren’t allowed to search Zacarias Moussaoui’s stuff, the month before 9/11 was because, `oh maybe he is a Jihadi, but he’s a Chechen Jihadi and we like those’.

MW: Yeah right

SH: Those were his ties anyway, through his brother etcetera ….

MW: So that’s one reason it may make it worse. They may be able to solve this problem, they may do it in good faith, I don’t know. Another reason that things are worse is because right now the FISA Court is really strict about what you can access this collection of all our phone data for and you can only do it for certain terrorists groups – a legitimate connection to certain terrorist groups and Iran.  I don’t know how Iran got in there but they did, whatever. The way the law is written, what the court will be doing, is not reviewing whether a specific phone number has a tie to a terrorist group, it has to be relevant to a terrorist investigation, but that’s not what the court -I mean they’re going to review that relevance thing but we already know that they’ve blown up the meaning of relevance anyway.

What the court is actually going to be doing is reviewing whether or not you’re an agent of a foreign power. Which means it could include drug cartels, it could include hackers, it could include sympathizers of the Venezuelan Government, it could include – I mean all of a sudden the possible uses for this become much broader and in their – the rules about what you have to get rid of also use that standard – the NSA gets to keep everything for which they can invent a foreign intelligence purpose. So again, originally the bill said you had to have some tie to, you had to be relevant to a terrorism investigation, now it is just that you have to have some kind of foreign intelligence purpose – again broadens the use.

SH: Yeah well it sounds like – I mean if relevant means anything then anything means the whole cosmos right?

MW: Right. And foreign intelligence can work that way. The way the NSA does foreign intelligence assessments right now is they only get rid of something that obviously doesn’t have any foreign intelligence value and then y’know they say things like, ‘you might one day make a good informant’ – that could be a foreign intelligence purpose and therefore they’ll keep you, Scott Horton, even though you have clearly no ties to terrorists but you know, you might one day make a good informant for something entirely different. 

SH: Amazing.

MW: And then there is a third way they do this, there is an emergency function where the Attorney General can certify that something is important and there they’ve just done away with the terrorism function altogether – they took out that language in the last revision and already the emergency provision is wide open for a variety of other reasons so, y’know the Attorney General can declare and emergency and not even have to pretend that there is any tie to terrorism. So they’re clearly broadening the scope of how they’re going to use this program.

SH: He could even probably declare that emergency in secret right?

MW: Of course, right. It will always be in secret.

SH: It wouldn’t have to be like, ‘I declare a national emergency’ and now we can at least debate that because it’s above board and we know that they’re using that excuse or something …

MW: You have to eventually tell the FISA Court and Congress but even if the FISA Court rules that the Attorney General was wrong, it wasn’t an emergency, it wasn’t a good use of the data, guess who is in charge of making sure …..but it’s ripe for abuse. We know that the FBI has abused these things in the past so y’know you cannot assume that they will not abuse this going forward because they already have.

SH: You know it reminds me of George Bush in the 9/11 commission – where like ‘alright we’re going to pretend to investigate the worst failure of the Federal Government ever’ but really this is an outcome based commission. I think he even used that term -this is an outcome based commission and on the last day it’s going to recommend that we create a Department of Homeland Security and that is exactly what we’re going to do, ‘So get to work recommending a new Government agency everybody’, and that was the point of it, it wasn’t supposed to be a real investigation of the attack it was supposed to be a real lead up to a recommendation to create a new giant Government agency and that’s kind of what it sounds like they’re getting away with saying here – ‘Oh you have a problem with the way we’re doing NSA business now huh, and you think that it’s not quite up to snuff, maybe you’re right, we need some reforms’, and yet they’re still the ones doing the reforming not us and so they get it their way.

MW: Yeah.

SH: One year out from the biggest scandal ever, and again ongoing as we talked about in the first segment, ongoing scandal. Just yesterday it broke that they’re collecting everybody’s Facebook images and every other thing they can find on Google Images and anywhere else in the world for their facial recognition programs …which to me is, if that stood alone, if nothing else was going on, it seems to me that that would be absolutely huge – that the National Government has such a broad take on all image on the planet but anyway

You’re journalism is always great which is why I’m always disappointed by the end of the interview, we’re not getting anywhere here Marcy, except maybe going backwards, but at least I know it, so that’s better. I appreciate your time as always …..

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