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All right, you guys, introducing David Rees.
He writes about the NSA and National Government Surveillance for the Electronic Frontier Foundation.
Welcome to the show.
How are you doing?
Thanks.
Yeah, I'm doing well, and thanks for having me on the show.
Very happy to have you here.
Hey, so I'm really behind on the issue of lapsed and or reauthorized Patriot Act powers and other powers that the government uses to surveil us all.
I guess the three main ones are its Executive Order 12333.
There's Section 702 of the FISA, the Foreign Intelligence Surveillance Act.
And then Section 215 of the Patriot Act.
That was the part they let expire, right?
From my knowledge, when they reauthorized FISA under FISA Amendment Act of 2008, I believe that is correct.
215 expired, but that goes back a bit, so I'm not entirely certain.
That's all.
So now, to go back to 702, and that's the one that I think is at issue now with the new...
Do they really call it the USA Liberty Act?
Yeah, they do call it that.
They call it the USA Liberty Act or the Liberty Act.
Here's a funny small thing.
Liberty isn't an acronym, but USA is, and it's not for United States of America.
I think it's for like Uniting and Strengthening America.
But it's, you know, just an odd thing.
That's all.
I like that.
United and Strengthening America Liberty Act.
It's to pass broad new powers or to reauthorize?
It's in regards to that Section 702 of the Foreign Intelligence Surveillance Act of 1978, right?
Yeah, precisely, precisely.
So the USA Liberty Act is to, one, reauthorize Section 702 of the FISA Amendment Act because that sunsets, so it expires at the end of this year, December 31st, 2017.
Embedded in the bill are also some reforms, quote-unquote, to try and restrict the way the NSA conducts surveillance or at least the way that government agencies access surveilled communications.
That's why it's created because, again, this Section 702 is sunsetting and so we've got a couple of options that have been written.
But USA Liberty is the one within the House that has gotten the most attention.
Alright, so, as it is, Section 702, and I forget now, in the last few years post-2005 NSA spying scandal, has 702 been amended or changed in any way?
Other than just they added a sunset to it, is that it?
Or it was always there?
We know that it is used at least post-2008 as the justification for NSA surveillance.
Before that, it's Section 215.
And that wasn't really found out until a couple of lawsuits were filed.
But Section 702 has been in the books and something known to the public since at least 2008.
Alright, so, and then you're saying, so now that it's expiring, they're passing this, Liberty Act will reauthorize it, but it'll restrict it in what ways?
Or possibly it's different amendments, I guess, are up for debate?
Yeah, yeah, yeah.
So, the Liberty Act, one of the things that it does to kind of introduce a new topic here is something called, there's something called backdoor searches.
And basically what backdoor searches are is that the way surveillance is conducted is the NSA will, they'll, quote unquote, target someone, right?
And this person is a non-U.S. person living abroad, which is a huge classifier.
That's literally everyone not in the United States, you know, who isn't a U.S. citizen or a U.S. person.
And when they do that, when they surveil an individual, they're collecting the content of their communications and sometimes, you know, they're not collecting the emails just sent by them.
They're collecting the emails sent to them and from them.
And so they're getting communications of other individuals.
That's how surveillance happens.
Now, some of those communications belong to U.S. persons.
And those communications are stored in a database.
And other agencies, like the FBI, can actually search through those databases.
We call those backdoor searches because the FBI does not, as of today, need a warrant to search through those communications.
This is content.
This is emails.
This is written words in your emails.
So those are backdoor searches.
And one thing that the USA Liberty Act does is it creates a warrant requirement if the FBI or if government agents are looking for evidence of a crime when they're doing these types of searches.
But it's only that, only evidence of a crime.
If they're looking for, quote-unquote, foreign intelligence information, which, again, is a very broad definition, they do not need a warrant.
And so that is one of the small reforms that it does to backdoor searches.
Another proposal, the USA Rights Act in the Senate, asks for warrants for all types of searches.
But that one is not getting a lot of attention, unfortunately.
Sorry, hang on for just one second.
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So, I guess, to what extent then, once they, if they use the, as it currently works, if the FBI uses their counterintelligence authority, basically, to look at these, you know, already collected all this already collected information, to what degree can they then share that with the criminal side?
And is that not the source of a lot of this parallel construction, where then they even share that with the DEA and whichever other IRS, God forbid, whichever other domestic intelligence agencies?
Yeah, yeah.
Exactly.
You bring up a really contentious issue here called, like you said, parallel construction, which is this idea that the FBI can see something, can find results when searching through 702 collected data.
And they can either share it, or they can try and allegedly build a case using sort of the same markers, sort of the same places to look.
And there are not very many instances of proved parallel construction.
It's a rare thing to see.
It's a far rarer thing to see within a court case, because sometimes we just don't know if that is how evidence is being used against an individual in a criminal lawsuit.
But it is a huge problem.
It's an enormous problem.
And some of the bills do address how this information is used.
You know, can it be used in a criminal case?
And some of them even also kind of split it down.
Okay, can metadata be used in a criminal case?
Or can metadata be used specifically to earn the warrant for further surveillance?
Luckily, USA Liberty Act, from my understanding, from the most recent markup and the most recent version, if it is to be used in a criminal case, the individual has to be notified, or they can't use it at all, essentially.
And you know, it's funny about this whole conversation, the possibility of Congress just letting the thing sunset hasn't even been raised, right?
There's no question about that.
Yeah, it is kind of funny.
Sometimes people ask, like, hey, what happens if this does sunset?
And if it does sunset, it will take some time to wind down, obviously, because there's a lot of infrastructure in place.
Was anybody working to kill it?
There is no one that I know of.
I'll tell you what, I saw a story that said a record number of Progressive Caucus Democrats and Liberty Caucus Republicans in the House of Representatives voted against the National Defense Authorization Act yesterday.
So, you know, the natives are getting restless and the House of Representatives is at least beginning to feel it on the margins anyway, you know?
Yeah, yeah.
And we've seen some members in the House of Representatives voting to extend warrant protections.
Recently, the House Judiciary Committee had what's called a markup of liberty, where they talked about it and they reported it out to see if it could advance to the next stage.
And there was an amendment up for a vote there, which was essentially to give broader warrant requirements, again, for these backdoor searches.
Several representatives did vote for it, but it did not pass.
And so, yeah, we are seeing a little bit more of a climate where people are understanding and have better knowledge of how surveillance is done, and they're trying to take a stand, at least voting in ways that protect American rights.
But in terms of them just letting it sunset, I don't think anyone's actually going to let that happen.
Well, now, a couple of years ago, the argument was, yeah, we stopped all these terrorists, 54 or something like that, right?
And then it turned out, no, it was one case and all it was was a cab driver sent some money to Somalia that the government claimed was meant to go to al-Shabaab.
So that was their one claim that any of this had done any of us any good at all.
And I wonder whether they claim they have anything else beyond that.
Certainly there have been plenty of domestic terrorist attacks inspired by foreign jihadists or what have you, at least a handful since then.
And I'm referring to ones that aren't sting operation, entrapment jobs by the FBI, but actual ones like San Bernardino and New York, etc.
Yeah, it is something we've been dealing with as well, trying to understand how much information is being given to these representatives, especially in the Senate Select Committee on Intelligence, so the Senate's version of the Intelligence Committee and also the House's version of their Intelligence Committee, and seeing are they getting information from the FBI?
Are they getting briefings whatsoever that are saying, hey, here are things that we have stopped.
Here's bad actor 123 that we have stopped.
Obviously there's a classified hearing, so we don't know.
But we do like to think that if there was that proof, that proof in the pudding, so to say, that it wouldn't line up with recent decisions by certain senators, like Senator Dianne Feinstein, who introduced a warrant protection amendment of her own, that was also shot down.
These are people who are supposed to be getting these classified briefings, and even some of them are saying, we still need warrant requirements, so clearly something isn't adding up in these conversations.
A senator who for very, very long has voted in favor of broadened surveillance, who has favored just the surveillance regime for her to introduce an amendment that says, let's push it back a bit, let's protect American communications, that obviously says that there's a change in tenor in the conversations that are happening within the Senate.
All right, now listen, I haven't had a chance to read it, but I see here you have this article, the term homegrown violent extremist needs transparency.
That sounds like, I remember when, I'm almost positive it was Stephen Hatfield, the first falsely accused in the anthrax attack, where they invented the term person of interest, because for some reason they decided they didn't have the courage to call him a suspect, they were just trying to smear the man to death, I guess, which they actually ended up succeeding in smearing another guy to death, who also was innocent later on.
But anyway, that was the first time I remember them saying that, and I remember thinking that, jeez, is that even a, I'm not a lawyer, that's the other, Scott Horton is the lawyer, but I don't think that was even actually a term from the law.
I think it was just like a public relations thing that the cops made up at the time, and now it's sort of stuck, and now this homegrown violent extremist thing, well that could mean a lot of things to a lot of cops, couldn't it?
That definitely could mean a lot of things to, like you said, a lot of law enforcement, and to kind of back up here, homegrown violent extremist is a term that Human Rights Watch actually found through a Freedom of Information request.
They found a recent one-year-old Department of Defense training manual, and what it did was it sort of just explained what type of surveillance or monitoring is allowed under a different order, so not Section 702, but Executive Order 12333.
And they found a training manual also from the Air Force Office of Special Investigations, I believe is what it's called, but essentially the Air Force's Investigatory Unit, and in this PowerPoint presentation, they create this term called homegrown violent extremist, and what that is is anyone who is furthering the goals of a foreign terrorist organization or helping plan a terrorist attack, and we don't know the criteria for that.
We do know that they look at things like social media, but we don't know, you know, is it someone who unwittingly retweets foreign propaganda, foreign terrorist organization propaganda, or is it even a journalist, an international journalist, who's researching terrorism abroad?
What difference does it make how they define it, because in other words, how do they apply it?
Yeah, that too.
It's this kind of thing where we're so left in the dark that we don't know, one, again, the criteria, or two, how it is necessarily applied.
We don't know the types of monitoring that are justified under this either, which means we don't know if it's physical, we don't know if it's digital, we don't know if it's, you know, someone's home or someone's email account.
These are things we don't know, and it's having this kind of darkness in the surveillance regime is a huge threat.
That's all, because obviously it leaves bigger room for abuse and less room for oversight.
Alright, sorry, hang on one more time here real quick.
Hey, you guys, buy this book, No Dev, No Ops, No IT, by Hussain Badakhshani.
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Just like The War State by my good friend Mike Swanson.
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Now, so, back to the Liberty Act for a second because I don't know where else to go with that because certainly, well, I mean obviously the standard for what is considered really outlaw politics by the American state is any politics that take place outside of the parties, right?
Like, anyone on the right or the left who just outright reject the Republicans and the Democrats are at the very least suspicious to these guys, you know, to the FBI and to whoever.
So, if it's, whether it's environmentalist protesters or guys that like to go shooting on the weekends or whoever in any category, you could see how the FBI can, or you know, depending on how loose their guidelines and restrictions are, right?
Could really just go hog wild persecuting and doing COINTELPRO type ops against anyone.
Although I guess you did specify foreign there, but even then, right?
I mean, so that means what?
Anybody who's in communication with a foreigner and they're participating in politics in some kind of active way, this kind of thing, and what you're really saying is you don't know the answer to that.
They won't answer specifically how they want to characterize the worst.
I'm basically talking about, like, assuming the worst.
It is a viewpoint that honestly we think about a lot as well.
You know, this assumption of the worst, this cynicism that exists because we do think what is the worst that could happen.
We do think you know, what rights are being infringed.
Well, we've seen COINTELPRO and PATCON and the kind of damage done by operations like that.
In fact, we've seen, as Trevor Aronson has a brand new, and everyone, please go look at this whole database and everything at the Intercept about all the entrapped, where they'd go find the dumbest kid down at the Muslim bookstore and tell him, don't you want to avenge the poor women and children of Afghanistan?
And trick him into saying, yeah, sure.
You know, give him 50 years.
Yeah, it is something that I've also read on the Intercept as well, and it is it's eye-opening stuff, that's all.
I mean, the book is called The Terror Factory, and Trevor Aronson, I mean, this is top notch stuff.
Anyway, so listen, so on the Liberty Act, is EFF saying, no, let it expire, or are you guys kind of saying, well, let's try to reform and this or that, or how do you approach it?
That's a great question that has a lot of layers to it, and obviously, I think there are people in the organization who would like this thing to end, but it's never as simple as you know, beating a drum that no one's going to listen to, and so right now, we're engaged and listening to you know, Liberty Act as it winds through the house, but we, you know, to be honest with you, we don't have a steadfast position on it as of this moment, because it's a hard thing to have a position on, and one of the reasons for that is because there is another bill written by Senator Burr within the Senate that is far worse, far, far worse.
It has a sunset period that is eight years instead of six, and it does not address the backdoor fix whatsoever.
There's no language whatsoever, and then interestingly enough, something that NSA did back, I believe, in April or May, is they stopped a practice which was called About Collection.
About Collection is searching through the database not to and from people who have been warranted for surveillance, but simply searching communications if someone is speaking about a target, which means lots of communications are getting caught up in that, and if you even just said, you know, if you've mentioned maybe an email address or what they call a person identifier, that your communications could get swept up in that.
They could be looked at.
But anyways, going back here, this Burr bill, this Senator Burr bill, it introduced the steps to reauthorize About Collection, something that NSA has already said that they're not going to do.
And so there is this worry that this is the bill within the Senate that has advanced the most at this time, and if the House bill fails, there's a fear that this Senate bill is the one that's going to move forward.
And so there's this jockeying going on, and it's honestly it's a difficult and it's a fraught position to be in at this moment.
Man, yeah, that's how they get you, right?
I don't know.
Yeah, I mean, well, the default should always be William Lloyd Garrison and total abolition.
The Fourth Amendment is the law.
That's it.
Right?
And then fight and make them have to come to you.
That's the best strategy.
I don't know about tactics on this one, but I hope you guys keep that in mind.
We do see some impassioned individuals, at least in, again, this markup that happened last week within the House Judiciary Committee, saying those exact same things.
Saying, hey, look, this is the Fourth Amendment, and there's language in these bills that's saying no one shall make a query.
And the Representative, I believe it was Jordan, saying look, we all know what a query is.
A query is a search.
And we have the Fourth Amendment specifically about search and seizure.
This is codified.
This isn't new stuff.
This is protecting constitutional rights that have existed since the birth of our country.
You know, it shouldn't be a hard decision, but for a lot of people, like you said, this framework that exists, they're making it a hard decision.
Well, you know, David, some of these Republican goons, I forget if it was the President or if it was McCain or Graham, and they did go ahead and indict the guy, and they kept him in the criminal justice system.
But after this recent New York attack, I think it was Trump who said, maybe he didn't act this way, but I think it was him who said that, like, hey, look, we don't just give trials to murderers.
You know, the rule of law is that's for, like, other things.
But when it comes to things that are this serious, then we just do what we gotta do, kind of thing.
And now he didn't follow through on that, but here's my thing about it is I think that that really represents people's mindset.
That there's like this tradition that you think is so special, that we have this Bill of Rights that says, like, hey, man, if they can do it to him, they can do it to you, and we want to save this.
But most people don't feel that way.
They don't know anything about the Bill of Rights, and they think that, like, yeah, why would you give a trial, which is, like, some privilege to some guy who's accused of doing something really bad?
And so it's the same thing with the telephone and the internet here, that, like, people don't figure it's about them, because they know that they're not doing anything wrong, and they presume that the government, if they didn't really need this stuff to get at the bad guys, then they wouldn't be demanding it.
So what really is your problem anyway, you know?
Yeah, yeah, it's a position that is frustrating.
You know, at the very least, it's frustrating.
It's infuriating also, you know, like moving it up the needle a bit.
But, you know, that's not how it works.
That's not how America works.
America does work in the way that these are, again, rights that are granted to everyone.
And we do see sometimes, what I'd like to think is, you know, people switching into a mindset of fear.
You know, this fear that allows certain powers to move forward without oversight, without, you know, any type of input whatsoever.
And fear has given us a lot of really bad politics, you know, in America's history.
Fear gave us, you know, Japanese-American internment, you know, after Pearl Harbor bombing.
Something that we still haven't said was unconstitutional, even though it was revisited in court.
Fear has given us, you know, fear helped drive the Patriot Act.
Fear gave us, you know, point-blank McCarthyism.
These are not high moments, you know, in our history.
And to again, kind of submit to this fear that allows us, that allows the government to kind of run rampant with broad decisions, broad decisions that hurt people, that hurt us, Americans, U.S. persons, everyone, really.
People abroad, foreigners.
We can't, we can't operate in the mode of fear 24-7.
We just cannot.
Yeah.
Well, it's been the whole 21st century so far.
We'll see how it goes.
Hey, listen, I really appreciate you coming on the show, David.
Good stuff.
Yeah, for sure, man.
Thank you for having me.
Yeah.
Alright, you guys, that's David Rees.
He's at EFF.org, the Electronic Frontier Foundation.
Covers NSA surveillance and so forth for them there.
That's Scott Horton's show.
Check out ScottHorton.org for the full archives.
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Thanks.
