11/13/14 – Marcy Wheeler – The Scott Horton Show

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All right, you guys, welcome back to the show.
I'm Scott Horton.
This is my show.
Our next guest on the show has got the x-ray eyes, as my old high school history teacher used to call them.
It's Marcy Wheeler.
You know how when you read a law, you go, huh?
Well, she doesn't do that.
She reads the law and she knows exactly what it is that they're saying there.
And she knows exactly how to find the reference where they changed as to shall or whatever it is that changes everything when they do an update of another thing kind of thing.
She's just got magical powers along those lines.
You show her something called the USA Freedom Act, and she'll tell you why it's no such thing.
Why is it no such thing?
Marcy, welcome back to the show.
There are several problems.
What happened was the government has had a problem getting all of the phone records that they want.
And part of that is that they don't necessarily have access to all VOIP calls like the one that we're on right now.
That's just as well.
They shouldn't spy on us when we're talking on the radio.
But they also had lost access to a lot of cell phone calls.
And it's not entirely clear why.
I think it's partly because Verizon provides its records.
This is a very well-informed hypothesis.
Verizon provides its records to the government differently than AT&T and Sprint.
And therefore, the government was having problems demanding certain things from Verizon.
And so Verizon is only obligated under the law to provide existing business records.
They don't keep a lot of these records.
And therefore, the government was losing access to any cell phone records that were coming across Verizon's networks.
And they're one of the two key backbones of providers in the United States.
So they were losing all that access.
And then there are smaller providers, especially providers that do a lot of burner phones.
So they needed to find a way to get access to that.
So that's actually the point of USA Freedom Act.
The government decided that they thought it was a good idea to get the phone records out of their hands, not because they wanted to get the phone records out of their hands, but because they were increasingly running into problems getting all the records they want.
So if you talk to certain honest people in D.C. or the Maryland area, they'll tell you that they sort of see this as a fair tradeoff, that they're getting more coverage.
So in fact, they're going to – more Americans are going to be subject to this spying potentially in exchange for being – having to let the providers keep their own records.
So that's really what's going on.
And then in the process – I'm sorry.
Go ahead.
I'm taking notes.
Go ahead.
No.
Okay.
The NGOs and the reformers and everyone who wants to change this because it's absolutely crazy for the government to hold some significant subset of all of our phone records, they all couldn't get in their mind, A, the other parts of the program that are abusive.
So for example, no one is fixing what happens when you get sucked up.
Like I'm two degrees away from Edward Snowden, so it's very easy to envision getting sucked up.
Once you're sucked up, you're sucked up for life.
You're in the NSA's maw, subject to whatever they want, whatever analytical stuff they want to do with your metadata for life.
And that to me is even more abusive.
But the reformers were just like, we've got to get the phone records out of the government hands.
We've got to get the phone records out of the government hands.
And that made them very susceptible to – that put them in a very weak position.
They didn't realize they were giving the government something the government needed.
And so they negotiated from a weak position.
They didn't think through some of the other programs.
So just as an example, both the New York Times and the Wall Street Journal have reported that the same provision that is used to collect all of our phone records are used to collect, for example, wire transfer records.
So all of the Western Union wire transfers that go overseas, they're also collecting that.
And they use it in very much the same way.
They collect it.
If they get a RAS-approved identifier, they're allowed to go in and see anybody who's two degrees of separation from that alleged terrorist.
And you can see why they'd want it, because that would allow them to figure out who was transferring money to alleged terrorists.
But the way the bill is written, it only affects communications.
It doesn't affect other stuff, even though the entire language of the underlying bill is called the tangible things.
So there's a bunch of other stuff that they can collect with this law that no one thought to fix.
So it doesn't fix a number of drag nets.
The other thing it doesn't fix is the FBI has, or at least had as recently as 2012, a bulky pen register program, which I suspect is the use.
You know what stingrays are?
They're these kind of fake cell towers that ping to cell phones and therefore are able to locate people.
We know the FBI uses that all the time in the criminal context.
And there's very good reason to suspect that they do individualized PRTT orders to go after individual terrorists, if you will, in the United States.
But there's some kind of bulky program under that law, and I suspect it's a bulky location program that they share the data with the NSA.
And again, given the definitions of the bill, pinging, location finding, isn't included under bulky programs.
Or, and this is true for both of these, they're not included in the transparency provisions.
So in other words, everyone's like, well, we'll know if they're doing bulky provisions.
We'll know if they're continuing to do bulk programs because it will show up in the transparency provisions.
Except that both pings, both location finders, and anything that's not a communication, you know, an email or a phone call, are excluded from the transparency provisions.
So that's a big part of the problem with them.
Wow.
Not the only one, but a big part.
Right.
And now, so, okay, I can see, and we'll go back over some of this to make sure I understand you right, but on the civil liberties groups lining up behind this thing, I can see how, you know, maybe they just didn't bring their best set of eyes with them to tear through that thing the way that you do.
But so now that they've committed themselves to this, but I know that you've been bringing their attention or attempting to bring ACLU and other groups' attentions to the flaws in this thing for many months now.
And I know that they're honest brokers on this.
They're trying to be right.
So maybe it's a little embarrassing, but is there any movement from the endorsees of this so-called reform on the good guy's side?
Look, I think there's a lot of people who are now, who have, I mean, for a long time, I think people just said, no, that doesn't make sense.
We've had conversations.
What you're saying is in the bill isn't in the bill.
But they didn't go back and read the bill.
So it took me a while to get people to go back and read the actual language of the bill, and then they started going, oh, you're right about that, and you're right about that.
And, you know, I don't need them to publicly, you know, get a front-page New York Times article saying, you know, she was fucking right, as Judy Miller was.
That's a little joke.
She wasn't.
But, you know, I think people are trying to see whether they can improve it with some reforms.
Another really, really easy reform that they should make is the way immunity in other bills, other laws like this is written.
The provider has to be engaged in good-faith fulfillment of an order.
Here they took that good-faith language out.
So so long as a provider is following an order, they have immunity.
So even if the providers do something they know is illegal, they would still have immunity.
Which they have de facto anyway, but, yeah, very important they're passing.
All right.
The great Marcy Wheeler, EmptyWheel.net.
We'll be right back, y'all.
Hey, y'all.
Scott Horton here for The Future of Freedom, the monthly journal of the Future of Freedom Foundation.
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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
I'm on the line with Marcy Wheeler, EmptyWheel.net.
That's her blog where she goes through and explains the truth of these very complicated subjects like this NSA reform, the USA Freedom Act, the Free Dumb Act, as she's called it, for many months now.
And now so I think first and foremost, I want to go back to the first kind of thing you're explaining there, Marcy, that if I understood it correctly, you're saying Verizon is in the habit of not keeping all the records or not keeping them all long enough to turn them over to the NSA under this, that, or the other authority kind of thing, and that the NSA is basically fixing that problem by it sounds like not just there's a kind of lame reform bill going through.
It sounds like it's a cynical exploitation of the backlash against the NSA that they're just writing it to put their own language in there that says that, oh, yeah, no, we won't keep the data anymore.
We'll just keep it on AT&T and Verizon servers, which, of course, makes the point virtually moot, if not 100 percent moot.
But then in that sense, they'll be forcing Verizon to now keep all those records that before they couldn't have access to.
So this whole thing is really just amounts to a con.
It sounds like is what you're saying.
Yeah, that's sort of what I'm saying.
Now, let me be really clear that I and a my theory about Verizon is just a really well-educated guess.
There's a lot of reason.
There's a lot of evidence to support it.
But but it's just still I haven't proven it yet.
But the it's important that this bill does not require Verizon to keep their records any longer.
And Verizon, I think, would sue if if they were required to do so.
The and that would that would, I think, really undermine the underlying claims that this is the third party doctrine, because, you know, that's already being undermined in courts.
But you can't say, well, it's OK for you to get phone records that are five years old from Verizon, because that's just the ordinary course of doing business because Verizon doesn't keep those records for five years.
So Verizon won't have to keep the records for longer.
But the bill requires pretty broad.
It basically in the same way that Prism requires fairly broad cooperation from the Internet providers.
This bill requires the same from the phone providers.
Now, there's very good reason to believe AT&T and Sprint are already providing that cooperation under a paid contract for the FBI.
So in other words, I don't know if you remember the Hemisphere program where the the DEA and FBI can go to AT&T and find burner phones and find details about who's been hanging out with whom.
So AT&T or I mean, that's the kind of thing that I think Verizon is going to be asked to do.
They just have chosen.
And again, this is a guess.
They have chosen not to make it a key part of their business to be a spy for the government.
Whereas AT&T, that's how they got started.
So they're happy to do that.
They're not as sound a business as Verizon.
I mean, this is a guess.
Again, I don't I can't guarantee this.
But we know, for example, that one of the phone providers stopped providing phone records, NSL's National Security Letter records to the FBI through an earlier contract provision.
It's not 100 percent clear that it's Verizon, but there's a lot of reason to believe that it's Verizon that backed out in 2009.
So, you know, those are some of the reasons why I think this is going on.
And and this would, you know, basically put Verizon into either having to itself cooperate more intimately with the government or to work with a contractor who would also get immunity and also get paid and also get these these broad orders so that a contractor would provide it.
But in any case, I think that's.
That's sort of what would happen with the telecoms.
Now, there are other things in this bill that I that I have concerns about.
I think the transparency provisions actually are counterproductive.
I think that there's an emergency provision now where if, you know, they still have all the phone records.
And if the government wants to go and use that in an emergency without getting preapproval from the from the court, they then have to submit an application after the fact.
And if if the court rejects their application and says, you know, you had no business getting records from this person, you know, you basically were going after this person just for their speech.
Right now, the court has the authority to to make them get rid of the records.
And under the bill, the court wouldn't have that authority.
And I think that's nonsense, especially because the most least the most recent Dragnet order was adding things to the emergency provisions, which makes me believe the government has already been caught abusing them, using these emergency provisions to go after people for their for their protected speech.
So it's stuff like that.
One final really important thing that I think needs fixed is the bill.
Adds an advocate and the advocate is supposed to be somebody who will tell the court it's it's engaging in completely bogus theories.
Right.
That the advocate is supposed to say, you can't claim that relevant to means all that's that's nonsense.
So sort of a pseudo public defender to argue against the government's position in the secret FISA court, you're saying.
Right.
For all of these exotic requests, you would have an advocate in there at least to present a different side.
And James Clapper, when he said, I'm on board with USA Freedom Act, said, I'm really glad that you aren't changing ex parte proceedings in the court.
Well, we just saw we got all of the all of the records from the Yahoo challenge, which goes back to 2007, 2008, which was ex parte.
And what we've seen in that is that the government withheld stuff.
In fact, Bill Leonard, who used to be in charge of classification for the entire government, I showed him some of the some of the stuff they withheld from Yahoo.
And he said, oh, that's a that's a bullshit classification standard.
You know, they basically were withholding stuff that made it clear the government was misbehaving.
And the government actually wasn't even giving the court everything they needed for that Yahoo challenge.
So we now know how badly ex parte proceedings go.
We know that James Clapper thinks he's going to still operate under ex parte proceedings.
And so that aspect of the advocate needs to be strengthened for it to do what what what it should do.
And there's no reason it shouldn't.
Right.
Now, I want to ask you about what you wrote here at empty wheel dot net.
You say passing this law may moot court decisions in three different circuit courts where they actually are starting to do the right thing.
And this is going to pull the rug out from under him.
Is that right?
Yeah.
So right after the Snowden declarations, everyone turned around and sued.
So the ACLU sued in New York and they are both Verizon Wireless and Verizon Wired subscribers.
Larry Klayman of Freedom Watch sued in D.C. and EFF sued on behalf of a bunch of probably targeted entities in San Francisco.
And two of those, the ACLU and the Klayman case, have both been heard at the circuit court already.
Klayman didn't do a great job, I have to say, in the circuit court.
But that court has precedents that should make this patently illegal.
So that court should be really friendly to hearing his suit.
And and besides, he's just trying to sustain the favorable decision he got from Judge Leon at the district level in in New York.
The ACLU case, the lawyer in that just absolute slam dunk argument.
And he they ended up in that ACLU case pulling the same panel or two judges from the same panel that had had ruled over Amnesty v.
Clapper, which was the the prism challenge that ACLU launched on behalf of Amnesty back in 2008, which got thrown out because the government lied and those judges are still pissed about being lied to.
So there are two of the most favorable judges in the country because the last time the government was before them with with a surveillance program, the government lied.
And so these judges, I think, would like to find a way to to make all this surveillance more reasonable.
And then the last case will be held will be heard before the D.C. Circuit.
I'm sorry, the Ninth Circuit in San Francisco.
Actually, the woman, the plaintiff is an Idaho woman.
I'm not actually sure where the hearing is going to be, but but regardless, it's the Ninth Circuit, which tends to be somewhat more liberal on these issues than, you know, than even the D.C. Circuit.
So you're going to have you would have a circuit split almost certainly.
And and then the Supreme Court would have to rule on whether the government can keep all these records and contact chain them with all these other records.
And then we might finally figure out where the limits of, you know, all this mosaic intelligence collecting is.
And I think once.
But the easy way out for all these courts is for Congress to have passed a bill.
So once Congress passes a bill, these courts are all going to go.
Well, this program doesn't exist anymore.
So your challenges is dismissed as moot.
Right.
And so goes.
Well, thanks very much for your time on the show again, Marcy.
Great to talk to you.
Absolutely.
Take care.
Great work you do there.
That's the heroic Marcy Wheeler, everybody.
She's an empty wheel dot net.
This piece is why I don't support the USA Freedom Act.
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