12/17/13 – Marcy Wheeler – The Scott Horton Show

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And you can follow her on Twitter as well.
The brightest mind in bloggerdom that we got.
And we've got big news to cover here on the NSA scandal.
The endlessly developing national security agency scandal.
Welcome back to the show, Empty Wheel.
How are you doing?
Good, thanks.
Thanks for having me.
Very happy to have you here.
Thank you very much for joining us.
So the big news is that a federal judge named Leon, well, he ruled something yesterday on the grounds of this, the Verizon, the original big NSA story, right?
The metadata program.
What did he rule?
He basically issued an injunction forbidding the NSA from using the phone data of the two plaintiffs.
One of whom was Larry Klayman from Judicial Watch.
Another one of whom is the father of an NSA guy who was tied to the SEAL Team 6.
So those are the plaintiffs.
NSA can't use their data.
But then he stayed his injunction against the NSA pending appeal.
So it has no immediate legal effect.
But what he said was, you guys are using a law from 1979 to authorize this dragnet when the way phones are used in this day and age.
There is no resemblance to the way they were used back in 1979.
And on that basis, I think these guys are probably going to succeed in the lawsuit.
And therefore, I'm going to tell you to stop.
Right.
So in other words, he's saying, hey, I'm just a lowly federal judge here and this is going to be decided at a higher level than me anyway.
But I'm ruling that I believe that you'll be successful at that higher level.
So he stayed his own injunction.
But he did, as you put it, break the ice and get it on the record that somebody in charge of judging the law has judged that it is being misapplied here.
Right.
Right.
I mean, I think there are competing opinions out there on whether or not the D.C. Circuit will overturn this on appeal.
And, you know, I think there are aspects of Leon's decision that aren't as strong as they could be.
But we'll see what happens on appeal.
You know, so I'm not going to and as a number of people have pointed out that we finally have three Obama appointees, two of whom are fairly conservative, one of whom is less conservative.
So, you know, who knows what's going to happen at the D.C. Circuit?
But at the very least, as you said, everyone is now talking about the phone dragnet differently because, you know, after a bunch of judges in secret have said, yeah, this is OK in in kind of ridiculous legal reviews, he said, no, it's not.
And so, you know, no longer, for example, can Dianne Feinstein go out there and say this is legal?
This is legal.
This is legal.
Now she's saying only the Supreme Court can call this unconstitutional.
She's trying to say that Leon's opinion doesn't matter.
But we'll see.
Well, so far, it does matter a bit now.
So take us back to this thing from 1979, you said, I believe, the Smith versus Maryland.
It's not quite a law.
It's a it's a court ruling about the pen register data, right?
Is the one you're talking about?
Yeah.
Basically, the court back in 1979 said that in pursuing this group, the government could get his phone records and we're talking weeks of phone records, not forever to find out who he had been talking to.
So, you know, there's not only do we use phones differently, not only does the rise of cell phones change things significantly, you know, we're talking about a very limited period of phone records in that case.
And we're talking about records and perpetuity for people against whom there's no suspicion in the phone.
But now they try to pretend that this is the hugest loophole in the whole wide world, that if anybody ever tells anyone else anything, or at least they do business with someone where they have to share information with that business, it now becomes no longer protectable or considered private from from government use that would require a warrant.
But that couldn't possibly be right, right?
It sort of seems to me like I don't really understand how they got away with that decision even back in 79 that this guy's records.
I saw in a comment section somewhere that.
So does that mean that if Alexander Hamilton had sent a piece of paper with a courier to the other side of town, that he would have been given up his right to keep his papers private?
Even Hamilton wouldn't have gone along with that.
And he was the very worst one out of all of them, right?
And they're making it I mean, they're making a you know, if Hamilton put it into an envelope, then they would say, Hamilton didn't give over the contents of that letter, he gave over the contents of the address.
And that's the basis.
But but you're right.
I mean, it's called the third party doctrine.
And on that basis, it's not just phone records the government can get without without much review.
It's also things like email metadata they used for years.
It's financial information.
You know, they're using they're using cookies to track us, same kind of thing.
So if Leon's decision holds the fundamental notion that the third party doctrine is outdated, then it's going to change a lot of things about surveillance.
But it's too early to see what's going to happen.
And effectively, you're going to get at least one or two circuit splits by the time it gets to the Supreme Court.
And that's when things will change.
Right.
All right.
And then I read on your blog that part of what the judge brought up was so called or the so called special needs doctrine that says that, well, if it's, I don't know, really an emergency, they can do whatever they want.
And he was saying, you haven't really shown that this is really an emergency, that we need this program this bad, that it would somehow justify, you know, obvious, widespread violations of the spirit and letter of the Fourth Amendment.
Right.
And he was getting further down the chain of legal analysis.
So he said, you know, Smith v.
Maryland doesn't hold.
And so I'm going to do kind of a brand new Fourth Amendment review of this program.
And the significance of the special needs is that we know the government is using it for other things like the like Prism, for example, they're using a special needs argument in that case as well.
And I think the phone dragnet is a much harder case to justify than Prism for its value.
So, you know, I'm not going to say that, you know, ruling that the phone dragnet isn't all that useful, doesn't have any effect on Prism.
But it is remarkable in that the judge said, OK, I can I'm in a position where I can weigh the privacy interests of these plaintiffs against the efficacy of this program in finding terrorists.
And since you've never found a terrorist, much less a terrorist, you needed to find quickly.
I don't think the program has been all that valuable in accomplishing the goals you claim it serves to accomplish.
Even that seems like a pretty dangerous kind of standard, though, which but I guess that's always the way that if it, you know, justification is always a gray scale to be decided by them.
Right.
When it comes to emergency violations of another, this is another Supreme Court precedent that's out there and has been expanded, just like the third party doctrine has.
And, you know, and like I said, it justifies a lot of surveillance.
It also justifies drunk driving stops, the random driver stops that they sometimes put up.
And but I do think if it looks like a decision is going to stand, you're going to find as much squawking about the fact that a judge can assess whether these programs are useful because that's what the intelligence community refuses to even really let the intelligence committee do.
You know, they say they're the executive branch and they get to decide what's useful.
And so even if they've never, ever found an actual terrorist with this program, they're still going to keep sweeping up all of our communications because they say they have to.
All right.
And now, so one of the things that we talked about before is how this has changed the terms of the debate a little bit, even though it's sort of a he issued an injunction.
And then in a way, overruled his own, you know, turning it on or, you know, use of it, that kind of thing that he's broken the ice.
And right away, Glenn Greenwald and others claimed vindication for Ed Snowden.
And it seems like that narrative is even getting through on TV as well.
That, well, gee whiz, maybe that young man really did have a point, according to this court's ruling.
So you think that's going to change very much in terms of the conversation going forward from here?
Look, I think it's not just that.
I mean, I think you've got the tech company saying you've gone too far.
You've got the president kind of making wobbly gestures in that direction because he doesn't want to piss off his buddies, the tech execs.
You've got more, you've got more disclosures and some disclosures that are really troubling about the way that they make us less safe and they're stealing stuff overseas when they.
So, I mean, there's the weight of all of the disclosures.
But, yeah, I think it matters.
The judge has said Edward Snowden was right in finding this program beyond the bounds of the Constitution.
You know, it's just one it's just one judge.
We're going to see a lot of other judges weigh in before this is done.
But, you know, we've got legal experts now saying that Edward Snowden had had a point when he leaked that.
And now I'm lazy.
I didn't read the thing.
But is it right that he invoked George Orwell and James Madison and all these things and really kind of went off in this opinion?
Yeah, it's a pretty good read for anybody who ever can tolerate legal opinions.
I mean, he does say that Madison would be aghast and he talks about the Orwellian sides of this dragnet.
So he's pretty pissed off, not just about the fact that they're claiming it.
But, you know, I just think that he sees that the government has been less than honest about what they're doing and the scope of it.
And so he's not particularly patient with the government in the first place.
And then he does find the program itself pretty, pretty offensive.
And then can you talk a little bit more about the tech giants complaints here that you mentioned?
Well, the tech giants have issued a reform proposal.
A lot of what they want, they want more control.
I mean, here's the thing.
Back in 2008, 2007 and 2008, the government passed first the Protect America Act and then the FISA Amendments Act.
And those are the things that underlie what we know is PRISM, which means that the government goes through the FBI, actually, but that the government can go and get large swaths of data from these Internet companies with the approval of the FISA court.
And they did that in 2007 and 2008, because before that point, the telecoms had just been stealing from the tech companies, stealing from Google and Yahoo and Microsoft and giving the data free.
I mean, I don't know whether it was free, but giving the data to the government.
So the tech companies, I mean, the telecoms, AT&T, stealing stuff off their circuits and giving it to the government and the tech companies were legitimately really pissed about that.
So they passed this law, which is supposed to fix that problem, that now the government, rather than going to AT&T to get them to steal the data from the tech companies, the tech companies just turn it over.
And the tech companies want some limits on what they have to turn over.
It sounds like the requests they've been getting have been expanding and expanding.
But the other thing that they want to prevent is they want to prevent the government doing what one of the disclosures at the Washington Post said they were doing, which is going into the cables between their own servers.
So basically going in with data in motion, which there are legal, you know, legal significance to that.
But they basically were stealing the data from Google now, rather than stealing it from AT&T, as they were doing before 2007.
And so that, you know, rightly, I think, really pissed off the tech companies, because, you know, you've got legal means to get what the courts believe you should be able to get.
So why are you going overseas in addition to steal the data?
And we don't know exactly why they're doing that.
So the tech companies are complaining.
Obama's feeling a little bit of pressure from that.
And because of that, it adds a higher likelihood that the Leahy, Simpson, Brenner, it's called the Freedom Act, will pass Congress, because, you know, Congress people listen to corporations a lot more than they listen to us mere people.
But that's the stink, is they, you know, it's beginning to really, really hurt their business model.
They thought that they had some kind of legal framework in which they, you know, this all had some kind of some kind of overview, and all that's gone out the window.
They're pissed.
And they're rightly pissed.
And now, well, I guess I'm just speculating.
But doesn't it seem like the reason that they were going through and breaking into the cloud structure and all that, and stealing from Google what they could have asked for was because that's their loophole around, first of all, having to use the law and instead, as you're always talking about, invoking Executive Order 12333, which is their magic getaway with doing anything that you weren't allowed to get away with under the other laws.
And that's their way that they can gather up, incidentally, gather up everything about the Americans that they're not allowed to get other than going and specifically asking for it if they go the other routes, right?
Yeah, we don't know exactly why they're doing it.
But we know, you know, we know some reasons they might be doing it.
I think, and I'm one of the few people who writes about this publicly, but I think that FISA court has actually imposed limits on what the government can go and get information from Google about.
I think it's limited to terrorism, cybersecurity and counterproliferation.
So if the government wants to get it to spy on Airbus's executives, they can't get that directly from Google.
They'll have to go steal it.
So it's think that's one possibility.
You noted that there's a higher standard for what's called the minimization procedures for the things the government has to do to protect U.S. person data, higher standard if it's done under FISA than if it's done under 12333.
And so it is possible that they wanted to get U.S. person data that they couldn't get directly in the United States, and so they just went over and had GCHQ do it in England.
A lot of possibilities, none of them good.
And there's, you know, an accumulating, accumulating bits of evidence suggesting that NSA is increasingly doing this, going overseas when they hit up against legal barriers in the United States.
And that would mean they're basically operating lawlessly again.
And that would be a real issue of concern.
We just need to prove that so that maybe some of, you know, maybe Obama will get actually genuinely concerned as opposed to just, you know, at this point, I think, pretending to be.
Well, now, so you mentioned the Leahy-Sensenbrenner bill, and I guess the way I understand it, that one is more of a reform than the Feinstein bill, which basically just codifies what they're already doing wrong.
And you were talking about, you know, these tech giants getting in on it.
I read a piece, I don't know whether IBM's lobbyists are doing this, that, or the other thing, maybe, you know, but I read about how they're being sued by shareholders who are saying, hey, you didn't warn us that the NSA scandal had completely gutted your Asian revenue coming in, and how the Chinese have basically just kicked IBM out of everything over there and cost them bazillions of dollars.
And their stock price plummeting and all of this stuff.
And boy, somebody's got to have some political pull to push back.
You know, why not IBM if Google and Yahoo aren't big enough, if AT&T is too deep in bed with the state on this?
What about IBM losing that huge amount of their foreign market share?
At some point, business has to take up the Bill of Rights for their own selfish reasons here, you know?
Right, and I think that's what's happening.
I mean, the tech companies, for the reasons I've laid out, the internet companies, have always been a little bit skeptical of this.
We know Yahoo challenged the first order they got back in 2007.
Then IBM, people who do consulting work, are going to increasingly lose business overseas.
China has different reasons to be skeptical of IBM than, say, Europe does of Google.
But I think, you know, all those countries have reasons to be skeptical of American companies now.
And AT&T, you know, AT&T is the most surveillance-friendly of any of the companies we know, and probably is the most surveillance-friendly of anyone not using it as a central business model.
And even they were challenged by shareholders the other day about not disclosing the risks associated with being this deeply in bed with the national security state.
And so I think, you know, that is one piece of leverage that is more likely to work for better and for worse than actual citizen engagement, because the president just doesn't care about that.
Yeah.
I mean, you know, why would he?
I mean...
Right, exactly.
Now all of a sudden we start talking about gerrymandering or whatever.
We already know the game is rigged.
It is what it is.
We're stuck with the representatives we've got, and they can call themselves that all they want.
All right, now, so let me ask you this about your very interesting piece in The Guardian about the NSA review board.
They were going to follow your advice that you had already written about in The Guardian about how the offensive cyber warfare division should be split off from the rest of the NSA and how then they changed their mind at the last minute.
What's going on there?
Yeah, basically, NSA has three jobs.
One job is to spy on what people are saying via satellite or email or what have you.
And that's what we generally think of as NSA's job.
The other one is to keep, originally this was just DOD's network, to keep DOD's network safe.
So to keep the Chinese out of spying on DOD.
That's number two.
And that job has expanded of late because their cybersecurity job has expanded.
And then the third job, which is new, is called Cyber Command.
It's to attack people like Iran, to launch offensive cyber attacks on other countries.
And that job, Cyber Comm, is supposed to be separate from NSA, but because General Alexander already has way too much power, they gave that to him as well.
And the effect of that is that the things NSA does to make their spying and attack other people jobs easier make us in the United States less safe.
They're basically leaving holes in the Internet for the Chinese to come in and attack us on.
I had argued, other people had argued, that you've got to split that up because it's just A, too powerful of a position, and B, that means our country has really put offensive attacks on a much higher footing than just keeping the country safe.
And so they did.
They followed my advice, the review committee, and there were leaks coming out that they had embraced that position, which is you should split those positions.
And then the NFC spokesperson came out and said, well, it's a draft.
It's not done yet.
And oh, by the way, the president has already decided he will keep those positions in the same position.
And there were a couple of interesting things about it.
One is that I think, you know, I think the review committee, which is a classic DC whitewash, it's designed to, you know, defer attention so that we don't have to actually...
I forgot there even was one.
What's that?
I forgot there even was one.
Well, not me, because I haven't assessed about it, but, you know, it was basically meant to be a whitewash.
And for a variety of reasons, about halfway through, they said, oh, geez, we've got to actually look like a committee.
And so they proposed things.
And yet Obama said, oh, you're supposed to be a whitewash, shut up.
And he's already said he's going to ignore a lot of their recommendations.
So in a sense, the whitewash committee kind of got out of control of the president, and the president's now in a position of having to stamp them down.
But it's also that the president, you know, in spite of some really good reasons to split up this incredibly powerful position, is basically siding with this offensive strategy rather than a defensive one.
And that probably doesn't make us more safe.
Yeah, I think I saw a blog entry where you wrote about how, of course, all they're talking about is Merkel's cell phone and whatever tabloid stuff and completely ignoring all the major violations of the law and major violations of people's rights that are really at issue here.
Yeah, I mean, you know, that originally that committee was designed to do two things.
One is to say, golly, you shouldn't tap overseas leaders, you shouldn't tap presidents and prime ministers without asking the president first.
And the second one is, you should have much more stringent insider controls inside the NSA.
So those were the recommendations that committee was set up to stop future Snowdens, in other words.
Right.
Stop no more Snowden.
And they were also supposed to be the ones that recommend cutting the administrative positions in NSA dramatically and having computers do it all.
That's what it was supposed to do.
And then kind of the committee got overtaken by events and partly by by pressure from the software companies.
I mean, there's a lot of evidence that when civil libertarians went in and said, this is a real problem, this is a real problem, this is a real problem, the review group just blew them off.
But as soon as Microsoft went in and said, it's affecting my bottom line.
And I suspect this is Cass Sunstein, because he's never met a corporate complaint that he didn't like.
When the corporations came in and started complaining, then all of a sudden the review review group started paying attention.
But there's never ever been significant attention paid to whether these programs work, whether they are too dangerous, whether they basically set up the infrastructure of totalitarianism, whether they whether they could be done better with better technology.
None of those questions have ever been asked.
We have no reason to believe they they ever did get asked by that committee or will be asked.
Yeah.
Or the real long term damage to the economy and all the, you know, unseen costs of what could have been, you know, from here on.
Right.
And now, can you give us a word real quick about the terrible threat that China was going to turn off every Windows computer in the world or whatever it was the other night on 60 Minutes?
Oh, my God.
So 60 Minutes basically got invited.
That's my dog, by the way.
He doesn't like he doesn't like surveillance either.
My 60 Minutes got invited in by the NSA to do a tough piece.
And one of the spokespeople from the NSA was trying to talk about how dangerous cyber attacks are and basically said that China was going to do this BIOS attack.
And a bunch of tech people have weighed in since then and said, well, that doesn't sound all that scary.
And her take was that they were going to shut down a bunch of computers and with it shut down the American economy.
And it was it was absolutely the most absurd claim.
And, you know, it was it was like all those claims that they made back in 2002 and 2003 about add on Al Qaeda attacks.
It was like that.
But because they were dealing with China, it was like orders of magnitude worse because they were basically saying China, who is utterly reliant on our economy, was going to blow up our economy.
Yeah, it was almost like the Y2K thing.
All computers are going to just stop.
None of them will ever start up again.
They'll never get past that first black page that comes up.
And they'll blow up the world economy.
And with it, you'll have one point three billion starving Chinese people.
And the NSA actually wanted you to believe that China thought that was in their own best interest.
It's a good thing that the military is here to keep us all safe.
That's all I got to say.
It's just utterly absurd.
Yeah.
I mean, the good news out of that was that all of Twitter agreed with you about that entire thing.
And I think the things really have changed in the public debate where, you know, they were just trying to scare middle America.
But middle America also rolled their eyes, too, and just said, come on, man, you can't threaten me with this stuff anymore.
There were people, I mean, it did get re-reported.
They're like, oh, my gosh, horrible Chinese attack.
And I was like, you know, you think like literally they were accusing China of being a potential suicide cyber bomber and that was going to take out the entire globe.
Yeah.
And I and I do think, you know, some of the immediate pushback helped.
Yeah, exactly.
All right.
Well, thank goodness we've got you here.
Thank you again for being on the show, Marcy.
Take care.
All right, everybody.
That's the great Marcy Wheeler.
Empty Wheel, they call her on the blogosphere there.
Empty Wheel dot net.
For her great blog and follow her on Twitter, too, at Empty Wheel.
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