02/02/15 – Kade Crockford – The Scott Horton Show

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Lucky us, we got Cade Crockford on the line.
She's from the ACLU in Massachusetts.
Wait, that's a good thing.
I know that sounds kind of crazy to half the audience, but anyway, she's got this great website.
It's called PrivacySOS.org.
That's Spotlight on Surveillance and also, emergency, help us, PrivacySOS.org and follow her on Twitter, 1Cade, K-A-D-E, 1Cade.
Hey, welcome to the show.
How are you doing?
I'm doing great.
How are you?
I'm doing real good.
I appreciate you joining us today and your expertise on some of these recent matters of the government violating all our rights.
I'm not sure, I guess let's do the phone records thing first because the license plate thing, that just is going to completely blow my mind and then I'll be worthless for the rest of the conversation.
Can we please start with the DEA seizing our phone records a la NSA?
Not getting them from the NSA, but they have their own, some kind of program like this and we know because Holder himself just admitted it and posted some files online.
Am I right?
Yeah.
The DEA actually has a number of call tracking programs.
The one that we learned about last week has to do with the DEA getting records from phone companies using subpoenas and for those of you who don't know what a subpoena is, I like to say that it's the equivalent of a prescription in a doctor's hand.
So a cop or a prosecutor, in this case a DEA agent, simply writes a subpoena and hands it to the person or company that he wants the information from.
No judge ever authorizes that, let alone even sees it.
So this program basically involved the DEA writing subpoenas to telephone companies asking for bulk record drops.
So these- Wait, wait, wait.
If I understand you right, you're saying, Kay, that basically they're only using the term subpoena to confuse us.
It's not a court ordered thing.
It's an administrative subpoena.
That's right.
Yep.
Okay.
I'm sorry.
Go ahead.
No judge is involved.
So, yeah, they just write on a piece of paper, give me the phone record, hand it to AT&T, and AT&T, like a dutiful corporate partner in the surveillance state, says, sure, and hands it over.
So we learned, though, that this program, which, by the way, only was interested in American international calls.
So according to what we learned last week, the DEA did not, through this program, monitor or create a database for including call records domestically.
It was just if you called somebody in France or somebody in France called you, then bingo.
Those records would be included in the DEA database.
This has been going on since the 1990s, the 1990s.
So this well predates what we've known about the FBI and NSA's call tracking program, which reportedly started after 9-11.
So this is, you know, dating back 25 years.
And now, ACLU did not know about this?
This has been entirely secret since the Clinton years?
Yeah.
Let me tell you, man, there's a lot of stuff we still don't know about.
You know, I sometimes think about, I think about that in the context of stingrays, right?
The stingrays are those technologies that enable the government to actually bypass the phone company and directly spy on our phones using this high-powered piece of technology, which essentially acts like a cell phone tower and tricks phones within service range of it to send data to the cops instead of to our phone companies.
Stingrays have been in use by law enforcement in this country for decades.
And local law enforcement has been using them for around a decade.
And we really only just started talking about this issue over the past year or so.
It was pretty much unknown to the public, even to organizations like ours, the ACLU.
We, you know, investigate this stuff and make hell for the government about it.
That's my job.
You know, we only really started becoming aware of the widespread use of these things within the past couple of years.
And I don't think that that's our fault.
The problem is that law enforcement is incredibly secretive about this stuff.
So, what I worry about is it's not so much the programs of yesterday or the things that we already know that are going on, although those are obviously very concerning, but, you know, I'm worried about what the hell are they doing right now that we don't have any idea about?
Because, as you said, you're right, this was going on for 25 years or 23 years.
You know, they only stopped doing it, they say, in August 2013.
But the reason they stopped doing it, the DEA's international call record, DRAGNET, is really interesting.
And that's because, if you'll remember, in August 2013, that was right after the Edward Snowden leak started dropping in June of that year.
And that summer, a couple months later, in August, I forget who it was, I think Reuters first published that AT&T was putting its employees in DEA fusion centers, DEA intelligence centers, and giving DEA agents access to 27 years of AT&T call records.
And that was, again, without any sort of court approval, you know, they'd just lean over and say, can you look up this number for me?
And AT&T employees, who are actually assigned to work for the DEA, basically, as surveillance agents, farmed out, would search for 27 years, and that includes domestic call records, too.
So it appears as if the reporting that's been done on this, Wall Street Journal wrote a piece that said that Holder basically killed the international call records program around the same time that the news broke about the domestic DEA call tracking program, which, by the way, is still in existence, as far as we know.
Right.
Yeah, that was lowered down on my list of questions here.
But now, so these DEA subpoenas, they're basically, they amount to general warrants, it sounds like, is what you're describing, where the subpoena is almost as broad as, like, that FISA, Verizon order that Greenwald first published, right, where here's an entire category of communication.
Go intercept it, if you want.
That's right.
And, you know, if I were the DEA, I'd be doing this, too, frankly, because the problem is that the law is bad.
And I've warned about this, even at the state level, like, here in Massachusetts, for example, we have a law that I call the Administrative Subpoena Statute that enables local prosecutors to write administrative subpoenas, the same things, to phone companies, Internet companies, and obtain metadata, that is, who you emailed, when, your IP address, showing your location, you know, call records, bank records, things like this, without any sort of judicial oversight or approval.
And I have basically worried for many years that this same kind of thing is going to happen at the state level.
Why?
Because if I were a cop or a prosecutor, and I said, all right, I want these records, these records, these records, theoretically, under the law, there's nothing stopping them from writing a subpoena specifying that they want every single person's phone record, you know, the equivalent, I guess, in a way, I think that it would be unreasonable, obviously, to interpret the statute as it's written to allow that.
But if those DA agents, what I'm trying to say, wrote subpoenas implicating every single person in this country's call records, that is, 300 million subpoenas, that would be totally within their rights.
So I guess they just figured, well, since we could write 300 million subpoenas and say, give me this person's call record, give me this person's call record, they just decided, well, we'll just write one instead, and we'll take all of those records.
Well, and they could have just as easy argued that, hey, listen, you know, tapping or keeping the records of who calls what foreign drug dealers, that's only step one.
We've got to keep records on everybody that they talk to domestically and the rest of their supply chain, right?
And so the excuse is built into, and then, you know, six degrees to seven of Kevin Bacon and all that.
Six is seven.
That's right.
Yeah.
And everybody knows somebody who knows somebody who can score some coke.
That doesn't mean anything.
That's exactly right.
And, you know, we've seen that what happens with these really, really lax statutes that grant law enforcement these incredibly broad powers to invade our privacy, again, without warrants in Virginia, where federal prosecutors actually said to local police, they said, you guys are obtaining all of these call records through subpoenas, criminal investigations, the rest.
You've got all these cell phone records.
Why don't you just hold on to them and keep them in a centralized database?
And then you can look at them anytime you want, and we can look at them anytime you want.
And that's what they did.
And so now in Virginia at a fusion center, there's this place that's almost this sort of state equivalent to what the DEA is doing nationwide with AT&T.
And look, the fundamental problem here is that the the overwhelming legal.
All right.
So we'll be right back in one sec.
Sure.
Sure.
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All right.
So welcome back.
I'm Scott Horton.
It's my show, the Scott Horton Show.
I'm talking with Cade Crockford from the ACLU in Massachusetts and the great blog Privacy S.O.S.
You can also follow her on Twitter, one Cade.
On Twitter.
And so we're talking about these federal cops writing warrants to themselves for themselves to keep total phone records on all international calls, which is sure as hell violating my rights.
I don't know who else is, but I'm sure got my number.
But anyway, I'm sorry.
I forget right where we were when we were interrupted by the break there.
Oh, yeah.
No problem.
I was just saying that, you know, this call records program, which, by the way, Holder has said is ended, although the domestic call record collection continues as far as we know.
This is just one example of a much larger problem, which is that the government taking the view that metadata is basically up for grabs, that they don't have to have any judicial oversight if they want access to call records through administrative subpoenas, IP addresses, bank records, even location records, potentially.
So that's a huge problem.
That's a huge problem, because the way that modern society is shaking out is very, very different from how things looked in the 1970s when the Supreme Court ruled on the decision made the decision that, you know, which numbers you dialed were not private in the sense that the government had to get a warrant to get them.
We are we are living in a third party doctrine you're talking about.
That's exactly right.
Yeah.
So and which makes no no sense on the face of it.
If you do business with anyone of any kind, then all of those records are up for grabs for the government.
Under what?
Yeah.
I mean, in what free country is that the law?
That's insane.
Yeah.
It's terrible for business.
It's terrible for privacy.
It's terrible for political dissenters.
I mean, it's just all in all terrible.
It's really good for the government, though, because it gives the government the ability to track our spending habits, where we go, who we talk to, how frequently.
For Christ's sake, it even basically allows them to track when we go to sleep and when we wake up in the morning, because most of us, the first thing we do is touch our iPhone.
So if they have records, data records showing when we make text and phone calls or when we start surfing the Web or looking up the New York Times, then they pretty much know exactly when we're asleep and when we're awake.
So, you know, these are metadata contrary to the government's ridiculous position publicly is, in fact, much more revealing in many instances than content and the things that we actually say over the phone or in e-mails.
Right.
Well, that brings us to our next subject, too, because all that location data about who's in whose living room and whoever rode in the backseat of what car, where and that kind of thing with who and the records going back for years and years, like you say, they can just go to the company and say, hey, give us all these records that you guys have had and then just apply them all going retroactively and use them for police power purposes.
And this is not just the the location data on our cell phones that they're saving, but the license plate thing.
And the thing about this is, is this is what I was completely paranoid and one hundred percent right about and starting in about nineteen ninety four.
So when I saw a huge aircraft promotional video for we can put a transponder in everybody's car and a camera every few miles and we can tax everybody by the mile and we'll just rule their sorry asses, they'll belong to us.
And and this is how we'll do it.
And and the technology was already good enough where they could tell a pack of motorcycles from a car full of transponders or whatever it was.
Yeah.
And it was they were pushing it on the cities and the governments then.
And and it's so easy to see that once the networking is is complete, once the computer powers there, then you can have the IRS tied right in with the local sheriff's department, tied in right with the Department of Transportation camera.
And it's you could you could have a digital digitally enhanced system of basically total law enforcement against all Americans, all of whom are guilty of multiple felonies all the time.
Right.
There's no escape from this thing they're building here.
Exactly.
So the D.A., like you referenced, we've we've learned through records that the ACLU obtained through a FOIA request has been keeping records, collecting records about where we drive.
They're using license plate readers to do this.
License plate readers obviously have an immediate use to law enforcement.
You can connect them to hot lists so cops running them in their cars can identify immediately without checking the plates manually.
If there are stolen cars or people without standing warrants, you know, a lot of people don't like that.
It's definitely the least problematic part of license plate tracking.
The real issue comes when they keep all of the data.
So every plate that's scanned by these machines is fed into any number of databases where some companies and government agencies are keeping the data forever.
The D.A. has now said that they're keeping it for six months at a time.
Yeah, maybe they're telling the truth when they say they deleted after six months.
But even if they are, that still means that they have six months of data showing where you've been, you know, potentially where you work, where you play, where you worship, whether or not you go to political protests.
In fact, one of the records that D.A. released to us included plans to station license plate trackers outside of gun shows.
So they basically want to create databases full of gun owners in this country.
Now, obviously, the license plate reader does not distinguish between somebody who owns a gun legally and someone who owns a gun illegally.
So that's a real problem.
You know, there are a lot of problems with the government's dragnet surveillance programs, not least among them, that they're so secretive.
We really don't know how this information is being used.
And one of the things that scares me the most is that, you know, the combination of all these different kinds of tracking, the call records, the license plate tracking and then the innumerable other databases that law enforcement has access to today that contain huge amounts of information about all of us, not just people who are suspected of serious crimes.
When all that information is combined, it gives the government just this incredible window into our private lives.
And since all of that surveillance is dubiously legal, which is to say if it was ever challenged in court, it might be ruled unconstitutional.
The government has great interest to keep it secret.
And because of that, we are concerned that something called parallel construction is happening more and more under our noses.
And that basically means, you know, the DEA, through its call records program, finds that you and I talk on the phone a lot and you also talk to a somebody who is suspected of being a major drug trafficker.
Right.
So then they think maybe I'm a drug dealer and you're my guy.
So as a result of this potentially illegal, unconstitutional call records program, they've identified me as somebody who might be up to no good.
Now, they also have a license plate tracking program.
So because they've identified me through their call records program, they put my license plate number into one of their systems and then they find that I've been driving in the neighborhood where they think another drug dealer lives.
So then they pick up the phone and they tell a local police officer, you know, if you see this car, you should pull them over.
Just say that they didn't come to a complete stop at a stop sign.
Do whatever you need to do.
And then once you pull them over, search the car, figure out how to do it.
Just make it a legal search, you know, bully them, do whatever you have to do.
And they'll uncover some amount of drugs or whatever.
And the cop will basically tell the person who's pulled over, oh, yeah, this is just freak luck.
You know, I pulled you over because you were.
Bottom line being, they already do this and that's completely unconstitutional, isn't it?
Just on the face of it.
And obviously completely unfair.
All right.
Privacy S.O.S.
For the great blog of Cade Crockford.
Thanks so much for coming on the show.
Good talk.
Thanks for having me, man.
Take care.
And she's one Cade on Twitter.
Guys, follow her on Twitter.
Hey, I'll Scott Horton here.
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