06/28/13 – Marcy Wheeler – The Scott Horton Show

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For KPFK 90.7 FM in L.A., June 28, 2013, I'm Scott Horton.
This is Anti-War Radio.
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Tonight's guest is the great Marcy Wheeler.
She's known as Empty Wheel in the blogosphere.
That's EmptyWheel.net for her great blog.
She's going to help translate some of these NSA documents from legalese into English for us, I think.
Welcome to the show, Marcy.
How are you doing?
Hi.
Thanks for having me.
Well, I sure appreciate you joining us tonight.
All right.
So at The Guardian, they've begun to collect what they call the NSA files, all the documents from the NSA whistleblower, Edward Snowden, and all of the related journalism there.
And there was a report the other day that the reporter, Glenn Greenwald, has been given thousands of documents by Edward Snowden, months' worth of reporting into the near-term future.
So we'd better get caught up on what we've learned so far.
Should we start with the original story about Verizon and the collection of all of our telecommunications data?
Well, let's take a step back and let's first reframe everything so people understand everything that the NSA and other parts of the government might be taking, because I think it will help people keep the various programs straight as they go forward, because we know The Guardian is going to be doing this for a while.
There are three kinds of information they're going to collect in two different platforms.
So the first is actual signal.
They can go into the pipe.
They're not pipes, but they can go into the pipe and take what are called packets, which are just little bits of information running around the world.
They do that.
They collect it and then put it back together again if they think they need it.
So that's one thing.
A second thing is metadata.
And metadata is, in the phone world, phone numbers, who you're calling, where you're calling from, locations, how long you're on the phone, anything that shows up in your phone bill, plus a few other things the phone company needs to know to route your call.
So that's phone metadata.
Then there's also Internet metadata, which is a little bit harder to understand, but if you think about your IP address, which is kind of like your phone address, if you think about things like URLs, who you address your emails to, how they get routed, all of that information is the equivalent of phone metadata, but it's Internet metadata.
And they also collect that, and that's where some of the newest revolutions come from.
And then at the same level, for both Internet and phone, there's content.
And so the phone content is you and me talking right here and now.
The Internet content is you and me sending emails back and forth, you and me chatting in a chat room.
The content of a blog post, possibly what we say in an online game, for example, all of that is content as well.
So there's two things, Internet and phone, and there's three different levels of information, the packets, which the government can take and glue back together, there's the metadata, and there's the content.
And you were just talking about the phone metadata, which is the first revelation we got, that they're collecting everybody in the country's phone metadata.
They want to see whether I've called you.
So if they ever found that I was suspicious, they'd look into my phone metadata and find out who I was hanging out with, who I was talking with on the phone, and they'd find you, and then we'd both be in trouble.
And that's the idea of the phone metadata.
Okay, and then it was – I guess I don't want to give them too much credit, but just for the footnote's sake, it was the Wall Street Journal that followed up on The Guardian and confirmed, I think the next day or two days later, that it isn't just Verizon, it's AT&T and Sprint, and there's no way around it, as long as you want to use the telephone around here.
Well, and now this is where it gets confusing, because to collect the phone metadata, they used what's called Section 215 of the Patriot Act.
And that basically says you can get business records relevant to an investigation, anything.
And the Wall Street Journal reported not just that they're using Section 215 to get this phone metadata, but they're also using it to get a bunch of other stuff like bank records, like credit card reports.
I know that they've used it in the past to get beauty supply purchases because some of them are precursors to bomb-making materials.
Senator Ron Wyden and a bunch of other senators actually just sent a letter to James Cropper today saying, hey, we need to know what else you're using this room for, because it allows you to collect records on everybody.
Are you, for example, using it to collect gun purchase records?
Because it would give you a way to bypass prohibitions against putting together a gun registry.
That's just one of the things they raised.
But it's important for people to understand is once you're collecting bulk data on everybody, it gives the government a way to bypass.
Another one they mentioned was HIPAA, the rule that says your doctor can't share your health records with anyone.
Well, this law lets them bypass that.
Are they collecting records of, you know, DNA or certain kinds of drug use or what have you?
Again, this is separate from the phone and Internet, that there's this rule that allows them to collect a bunch of other stuff, which they could throw into a computer and cross-reference with the phone and Internet behavior.
Well, and I think they keep saying that, well, you know, we might be interested in one thing or another, but even if we collect it all, we don't consider it collection until we go back and look at it.
And we don't go back and look at it unless the court says so.
But then the articles seem to indicate, and the documents from what I've seen seem to indicate, that when the courts are saying so, they're not saying go look at Jim or go look at Ahmed's email.
They're saying, oh, yeah, you can look at emails.
And that's how specific they're getting.
They're basically handing out a general warrant to the NSA to look at what to, by their definition, collect.
That is, go back and examine what they've collected.
Right?
Well, for the metadata level, and we know they're still doing the phone metadata.
We know they're still collecting Internet metadata.
We just don't know how they're getting to it.
For the phone metadata, the government doesn't even have to go back to the court.
But, you know, they've gotten all the phone metadata.
The court, you know, they're out of it.
But all they have to do is say, I have an articulable suspicion, which is sort of the same kind of suspicion they might use to stop you if they think you might be drunk driving or even sobriety tests, sobriety check tests.
They need to have an articulable suspicion to get into the database, but they don't need a court order to get back into the database to see whether you and I have been calling.
On content collection, it's a little bit tricky, because the people they collect on or the places they collect on are supposed to be overseas.
So, say, Big Bad Pakistani Terrorists.
Or, you know, Julian Assange in England would count as well, frankly, under this law.
And then what they collect is kind of a node around, say, Julian Assange, everyone he talks to, whether it's in England or the United States.
To access the information in that node, so, in other words, who Julian Assange talks to in the United States, they can look at it, the NSA can look at it while it's sitting there in their databases.
The NSA actually gives certain targeted people the chunks that they get to the CIA and the FBI, which was news that we found out just in raw data form.
But once they've looked at it and they say, oh, my gosh, Marcia Wheeler is talking to Julian Assange.
I'm not, but say I were.
Then they can actually send my conversation with Julian Assange around, provided that they claim they need it to understand the intelligence.
So it's actually, it is possible to get your information floating around the national security establishment without actually a warrant at all.
And there are other pretty big loopholes where they can get U.S. person data without a warrant.
If they want to collect on me, if they want to say Marcia Wheeler is an evil person, I want to collect on her and know everyone she emails and everyone she talks to, then they need to get a warrant.
But it's only until you get into that position where they actually need to get a warrant to focus primarily on me as opposed to, say, Julian Assange.
Well, and then they have these very broad exceptions, at least, I think, the most recent articles about the email collection where I think you quote maybe something different than what I'm thinking of.
You quote on your blog there, EmptyWheel.net, Marcia, about them saying, you know, well, if the information could ever be used to protect life or property, then it could be used.
And I was thinking of, I guess, a different quote out of there, which was any criminal activity, which I think could include loitering out in front of the Quickie Mart, right?
If anyone at the NSA has an articulatable, if I articulated that right, suspicion that there's criminal behavior or clues to criminal behavior or evidence of criminal behavior contained, then they can go ahead and hold it.
But that could be basically anything in a 21st century of three felonies a day for every one of us who dares to get out of bed.
I beg your pardon.
I'm only a two felony a day girl.
Oh, okay.
Well, you're very careful.
You understand the letter of the law a lot better than the rest of us.
We just can't help but blunder around.
Yeah, so basically, and what you were just referring to, the two situations that you were referring to, is actually, you know, if they get into the data and discover, oh, my gosh, we thought we were wiretapping Julian Assange speaking to Marcy Wheeler, but instead we got Marcy Wheeler speaking to Scott Horton, two people in the United States, both U.S. citizens talking to each other, normally they're supposed to go, oh, you know, whoops, throw away the data.
But there are these exceptions, and the exceptions are evidence of a crime being committed.
So, you know, if you and I were to get on the phone and, say, arrange to buy pot or something, which we're not doing, but then they could keep it.
Another one is really kind of vague and trippy, which has to do with kind of data.
If they find some use for the data, then they can keep it.
And then the third one, which you mentioned, is in the law it says you've got to have everything.
I mean, if they find evidence of a crime, that goes to the FBI.
The third one is you've got to have everything kind of resolved within 72 hours, except they're going to keep it for five years anyway, except if there's imminent threat to person or bodily harm, imminent threat of a person or bodily harm.
So, in other words, if they see something, the law says if they see something that makes you think that somebody's going to die or something's going to be blown up, then they can keep it longer.
They either go back to the court or the attorney general says this is important.
But they changed that.
So in the secret rules that they bind themselves to, it no longer says a threat to person, bodily harm to a person.
It says to property.
And if you think about what the government does online, if you think about how heavily they police intellectual property, if you think about how often they shut down sites that they claim are infringing on somebody's rights, then it gets really dicey because if they're keeping U.S. person communications because it's a threat to property and they see the most dire threat to property is somebody copying a Hollywood movie or copying some rock musician's songs, then you're getting into a whole new realm.
And I don't know if they're doing this, but that's the way they've written their own rules secretly to allow that kind of thing to be kept.
Right.
So one of the things that's sort of a – and we'll get back into the details here.
But one of the big picture kind of what's going on here is that this is more or less – and please fill us in on the discrepancies – but this is basically Bush's illegal NSA go-ahead-and-do-what-you-want program, only now legalized and under warped and misinterpreted authority of the Patriot Act and under probably pretty accurately interpreted authority of the FISA Amendments Act of 2008, which Senator Obama voted for before he became president, which Bush signed, of course.
And so none of this is actually technically criminal other than it's in direct violation of the Fourth Amendment and I guess any law – are there any laws that actually put teeth in the Fourth Amendment where you're in trouble for violating it if you're a government employee or not?
No, no.
They've gotten rid of all those teeth.
And in fact, on FISA specifically, if they wiretap us – if they wiretap us illegally but don't submit it to a court for a criminal investigation – so in other words, if they decide I'm going to put an intelligence wiretap on Marcy Wheeler but never actually use that in a court – a decision in California last year actually just eliminated – there used to be a little bit of teeth if the government did that, but in California anyway, in the Ninth Circuit, so a big chunk of the country, there's no longer those teeth either.
So they've been chipping away at these teeth for a long time.
And the thing – I mean, when people say – and this is really important for listeners to understand – when everyone gets out there and says this is legal and courts have approved it, that's a real stretch because what courts have never had the opportunity to do, whether it's the secret court, the FISA court, which has only disapproved something like teens' number of requests since 2001, whether it's that court or whether it's, you know, your federal court down the street, the courts have never been looking at the entire program.
So even the FISA court doesn't get all of the minimization standards.
I mean, they get the minimization standards, but they don't get to enforce them.
The company – like when Yahoo tried to challenge an order in 2007, Yahoo didn't have the minimization standards, so they couldn't say, look, you know, you're taking our email and you're giving entire databases of it to the FBI and they're using it without a warrant.
That's a problem.
So Yahoo never had an opportunity to say that to the court, and so the court never considered that argument.
In real courts, in public courts, the ones that you and I would show up at was even worse because ACLU tried to get this system reviewed before the courts last year, and the New York courts sort of were okay with it, and then the Supreme Court said you don't have standing, meaning nobody – none of your plaintiffs, none of the people you're suing on behalf can prove that they've been harmed by this massive dragnet.
And it was interesting because at the Supreme Court, the government said, oh, but promise, if ever we use this evidence against a criminal defendant, we'll tell them we're doing that.
And they didn't before, and since then they haven't been doing what they promised the Supreme Court they're doing.
So in other words, you know, you've got Joe accused as a terrorist brought before the court downtown, the federal court downtown, and they've used these wiretaps to incriminate him.
They're not giving him the evidence to say, you know, the probable cause wasn't there, the access to the database shouldn't have been given, you know, to find my identity, you should have minimized it, you shouldn't have found me.
Nobody's able to make that argument because the government is ensuring they don't have the information to make it.
And therefore, no courts – and I feel really safe saying this, actually – no courts have reviewed this program in total.
No courts have reviewed whether this program and the way it's being used is actually legal.
Certainly not, you know, certainly not with any awareness of how vast it is and how it all works together, because we're only, you know, we're only getting handled that now.
Right.
Well, and now set astray, you don't have to be a technicalitarian, I don't think, to think that the Fourth Amendment ought to ban this sort of thing, huh?
Right, the entire point of the Fourth Amendment was to ban this kind of general warrant, and that's really what the Fifth Amendment Act has become.
And also this other thing, the Section 215 collection, where they can just get everybody who, you know, uses Verizon or get everybody who's bought hydrogen peroxide and stick them in a database.
Right.
Yeah, first they said – and this was actually – people objected, especially on the right back in the 1990s in the Clinton years when they tried to do the know-your-customer regulations where the banks had to start turning over information about everybody, and people really, you know, pushed back against that.
But then after September 11th, it was know-your-customer to the 10th power where all of a sudden now anyone who owns a business with a cash register is basically a financial institution.
Everybody's bank – every business's bank records, and therefore all of their relationships with everyone, you know, became completely up for grabs, right?
On the lowest kind of standard of evidence.
Right.
I mean, the biggest reason the Fourth Amendment has been gutted is what's called the third-party doctrine.
And that says that the government – you know, if you contract with Verizon or with your local pizza joint or with your bank or with Visa or with, you know, your pharmaceutical mail supplier, any of those contracts, any of those business relationships that you enter into, the government can get them by either, you know, any variety of subpoenas or orders or warrants.
They can get that information from that third party, and they can gag that.
So in other words, they can get all the information about you they want and do it secretly.
Right, and they can claim a national security letter or an administrative subpoena.
In other words, a cop can just write himself the warrant for it, and there's no check.
So it doesn't have to have – it doesn't have to be really based on anything.
Right.
And even in the criminal environment, you know, judges are rubber stamps there too.
I mean, there's just not enough scrutiny on what the government is claiming probable causes anymore.
So, you know, I just think there's a ton of information out there, and the way that they're able to access it is very dangerous because it really gives average citizens very little protection for their privacy.
And the notion – I mean, the government always comes back and says, well, you willingly entered into a relationship with Verizon, and so you had to know that you didn't have any privacy with Verizon, as if you have a choice to not have a phone, or as if you have a choice to not have a credit card.
I mean, you know, you can do it, but it takes a great deal of effort not to enter into these relationships and, therefore, not to have your privacy completely exposed.
And the funny thing is – and this just – I mean, it boggles my mind, but another thing we learned last week is that the government keeps emails that are encrypted, A, because they don't know they're American.
By definition, you encrypt your email, then one of the things you're hiding is your identity.
And, therefore, they can say, well, we didn't know it was an American.
So they're – you know, the people who are making an effort to protect their privacy by encrypting their emails, the government's keeping it all and just encrypting it to figure out what's in there.
So it's as if saying trying to maintain some privacy in the Internet makes you suspect by default.
Right, like asking for your FBI file, and they go, oh, really?
So you're worth looking at, huh?
Maybe we will.
Yeah, exactly.
I mean, it's sort of like that.
In fact, a friend asked me, hey, do you have an encryption key for your email, this and that?
And I sent him the link.
I said, you know, I just read in The Guardian that if you even bother encrypting it, you're just drawing attention to yourself.
They're guaranteed to check you now.
Right.
I mean, what you're given is time.
So, you know, it may take the government five years before they decrypt your email.
And then, you know, and then it'll be president, you know, somebody who's even worse from a privacy perspective.
So they'll just arrest you because, you know, because we're having this conversation.
And then they'll keep it five years after they decrypt it.
So in other words, you know, you're just buying time, and eventually it's going to get treated in the same way.
But with this extra suspicion, it's stunning because they're basically saying, you know, there's no way that they can do any of it.
I mean, there's no way that they can, that there's no way you can get any privacy.
Right.
Well, and it's like Snowden said, the whistleblower in the interview was, hey, at some point in the indefinite future, they can decide to notice you and go back and scrutinize every decision that you ever made.
So things that don't even seem like they're a problem to you now, you might find out later on just how politically incorrect that turned out to be, or whatever it is, and find yourself in real trouble.
And, you know, McClatchy, I'm sure you saw this story in McClatchy, where they did this great job of explaining how all this metadata is, it's a map of your entire life.
I mean, assuming you keep your phone in your pocket, they're keeping, or at least they could be, I don't know if it's proven at this point, but they at least very well could be keeping everywhere that you go.
In fact, when you get up and go from the bedroom to the bathroom and back again, or whatever, if you bring your phone with you to play a game, you know, they might, that might actually go on your permanent record.
And then the pictures that you take with a digital camera almost universally now have the GPS data embedded into the picture and whatever.
And so with all this metadata, they can draw your, you know, never mind an old-fashioned FBI file, they have the ultimate Big Brother file on everyone's life, and all they have to do to assemble it is just hit enter.
It's already out there in a million pieces, right?
They just got to hit the button and it comes together, and it's the ultimate map of everything you do and everyone you associate with, who you worship with, and who you do business with, and who you love and who you hate, and everything.
Yeah, and I mean, it's actually interesting, because the order that we saw to Verizon collecting phone data actually asked for routing information.
They said metadata includes routing information.
And that means location.
If it's a landline, the routing information has your address and how the phone company gets to you.
If it's a cell phone, they have your cell tower location or your GPS or both, because when you move around, the cell company has to keep looking for you, and therefore it has to know where you are at all times.
And it was funny, because the NSA director was sort of like, we're allowed to capture that, but we don't.
I don't remember whether he said we don't use it or we don't actually collect it.
What's interesting, though, is at least with the other data they're collecting, as I said, they're dumping big chunks of the data into the CIA's hands and into the FBI's hands on request.
And so I wondered whether it probably would be the FBI or the National Counterterrorism Center, whether they get some of this data and whether they're using geolocation in a way that the NSA is not.
Did you see where Janet Napolitano, the head of the Department of Homeland Security, was saying, well, we want all this stuff.
How can you be denying all this information to us?
Think of all the terrorism we could stop.
Yeah, right.
And that's another really important thing for people to remember, is that they keep saying this is about terrorism, but right now they're not capturing a lot of terrorists with it.
Terrorism isn't as big of a threat as it was after 9-11.
They've deterred terrorists in other ways.
They're going to use it for drug dealing.
They're going to use it for hackers.
They're going to use it.
I said earlier, a lot of this really is about cybersecurity, IP security.
It's about policing the Internet against other crimes, not about terrorism.
And they're just rolling out the terror, terror, terror thing to make everyone scared and compliant and happy that they're taking away our privacy.
Just like everything else.
Yep.
Well, I've got to tell you, I sure do appreciate your time on the show, Marcy, and all your great work at your blog.
I'm sorry we're all out of time.
I guess maybe I could squeeze one more in here.
Is there any other major point that I should ask you about that we need to catch up on, or a specific blog entry of yours you'd like us to look at?
No, it's just people should know that one of the last Guardian stories says that they continue to look for new ways to get the Internet data.
That's the part of this that has been repeatedly found illegal.
And the government said, oh, yeah, we stopped that in 2011, but they're still trying to find ways to do the Internet data.
And so it's just, you know, they're playing a shell game.
They keep looking for new places to put the P under their shell, and it's still going on.
Yep.
All right.
Everybody, that is the great Marcy Wheeler.
Empty Wheel, they call her in the blogosphere, EmptyWheel.net.
Thank you so much for your time on the show tonight.
Thanks so much, Scott.
All right, y'all, that's it for Anti-War Radio.
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