06/07/13 – Trevor Timm – The Scott Horton Show

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I'm Scott Horton.
This is Anti-War Radio.
Alright, y'all welcome to the show, it is Anti-War Radio, I'm your host Scott Horton.
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And today's show goes out to the American hero Bradley Manning, who finally, his trial has begun three years after he was arrested, and they're charging him with aiding the enemy, for being the greatest American whistleblower, and liberating the Iraq and Afghan war logs, and the State Department cables.
It should be understood by all that Bradley Manning had a duty to liberate these documents and expose the war crimes contained within them to the American people.
And just like he said in the chat logs with the guy that turned him in, he was doing it so the American people would know the truth, so that we could institute reforms.
He wasn't aiding the enemy in any sense, unless you and I and the American people are our government's enemy.
And by the way, Bradley Manning has been held for three years without trial, and he should be let go for that.
And he was tortured, held in solitary confinement, deprived of sleep, stripped naked, humiliated, basically given the Jose Padilla treatment, light, treatment which President Obama personally has taken responsibility for, by the way, and he should be set free for that.
And also the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have already all three pronounced him guilty, which is undue command influence on the military officer judge in his court-martial, and so he should be set free for that.
And as Nathan Fuller from BradleyManning.org reported on my radio show earlier today, the prosecution's case is already blowing up in their face, as well it should, because Bradley Manning is an American hero.
He deserves to be set free.
And this show's for him.
Free Brad.
All right.
Our guest tonight is Trevor Timp from the Electronic Frontier Foundation.
Welcome to the show, Trevor.
How are you doing?
Great.
Thanks for having me.
Well, very happy to have you here.
Appreciate you joining us.
Obviously a very important week for your work at the Electronic Frontier Foundation and at the Freedom of the Press Foundation, where I know you guys do lots of great work on the case of Bradley Manning, whose court-martial started this week.
First of all, let's talk about the two big stories broken in The Guardian by our friend Glenn Greenwald.
The first one about metadata, Americans' telephone records, apparently all of us, and all of our telephone records, I think.
And then secondly, this story that The Washington Post also reported about PRISM and the National Security Agency's alleged backdoors or apparent backdoors into the most famous brand name Internet services, Yahoo, Google, Skype, YouTube, et cetera, et cetera.
So I guess if you could just give us the very brief kind of rundown, and then we'll run from there.
Sure.
Well, the first story on Verizon broke a couple days ago, in which Glenn Greenwald published a top-secret court order from the secret FISA court, which handles all surveillance requests by intelligence agencies if they want to get them under the Patriot Act or the FISA Amendments Act.
And we have been arguing for years at EFF that they are running this broad, dragnet, warrantless surveillance program, basically the same program that was running under Bush, but everybody just forgot about it, or at least most people did, at least.
And it turns out that's exactly what they were doing.
This Verizon order demands that Verizon hand over all call records data of Americans, no matter if they're calling overseas or wholly domestically to the FBI and the NSA.
And so this call records data isn't the content of your calls, but it's who you're calling, who's calling you, when you're calling them, and for how long, this metadata, as we call it.
And if it's a cell phone, where the cell phone is located.
So hugely personal information that can basically map out your whole life, if you put it all together, and Verizon is handing this over in bulk form to the government, it's likely that there's similar orders out there for every major telecom company.
The second big story that happened yesterday was that nine of the biggest internet companies, Apple, Google, Facebook, Microsoft, Yahoo, AOL, and a few others, are participating with the government in a similar program, which is called PRISM, where at least the slides in the leaked documents suggested that NSA has direct access to these companies' servers, and they can just, in real time, suck up all the data that's coming into them.
Now, the companies have actually strongly denied this, this is going on, though the government admits that the PRISM program is real, and that it's somehow related to the Unified Amendments Act, which again allows for mass spying of people talking into and out of the country, and also foreigners.
The U.S. government actually admitted to part of this program last night, but said that it's only targeting foreigners.
And that's the second program that they're admitting to there.
Exactly.
And, you know, it's, well, they may be technically correct that it's aimed at foreigners.
You know, they reported in the Washington Post that the only way, I mean, it's tough to tell if internet traffic is foreign or domestic, just because of the way the internet works.
And the NSA keeps everything in which they think there's a 51% chance that something is foreign traffic.
So naturally, you're going to have just massive amounts of American communications accidentally getting sucked up into this, even if they're following the rules that they say they're following.
Right.
Yeah, of course, that's assuming it's legit without argument that if I call England, then all my privacy is forfeit.
Right.
Right.
Exactly.
All right.
Now, when it comes to the denials from Apple and them, there's a couple of ways that occurred to me, either that they're under threat of the gag order that if you ever confirm that this is true, we'll nail you to the wall kind of thing, or secondly, they're just lying.
Or thirdly, maybe they really have not granted a backdoor to the National Security Agency.
Maybe the national government has just broken into their networks, which do you like best?
I think those are the three options.
You know, it's hard to tell.
You know, there was some wiggle room in some of the statements, but even today, Google just came out with a statement that, you know, I don't know, I'm not sure if they could deny it anymore.
So it seems that, you know, with the Verizon story, when Verizon was asked for comment, they said something like, well, we can't confirm or deny that this is true.
But if it was true, it would be completely legitimate, whereas the Internet companies are basically saying flat out, we do not do this.
We don't know what this is.
You know, we do not give direct access to our network.
So it's hard to say.
I mean, the thing was that the government admitted last night that at least part of the story is true.
So it really will play out in the next coming days to see what exactly this program is.
It is also very likely, as you said, that they may not have had the permission of these companies and somehow had broken into the system.
But you know, that's really all speculation at this point.
We can't really, you know, there's still more information that we need to know.
And I'm sure in the coming days, it's going to come out because there's no way the government can can, you know, kick the can down the road with this issue anymore.
Right.
Well, now, I think in the Post article, their experts that they were talking to anyway, had made it seem that the government would really need these companies help in order to make it work the way they claim it works in their little slideshow here, that there's really no way that they could just engineer it all one direction or from from one direction, I should say.
Right.
Exactly.
So that's that's a thing.
That's why there's these unanswered questions.
It's, you know, likely that they would need their help to set something up like this.
But then again, the NSA is involved in all sorts of activities.
We have no idea what they're doing.
So, you know, it's like I said, I wish I had answers.
But, you know, I think we're just going to have to wait and see exactly how this access was given and what the consequences are.
OK, now, so let's get into some funny legalities.
We're talking with Trevor Tim from the Electronic Frontier Foundation at EFF.org.
And now they're justifying at least the metadata part, the phone data part.
If you need to differentiate for us, please do.
Maybe it's they're citing the Patriot Act on the phone records and they're citing the FISA Amendments Act on the Internet.
Is that right?
And then I'm kind of confused about how exactly that would apply.
I guess I would have thought that the Patriot Act, if the Patriot Act justified this, justifies this now, then why didn't Bush invoke the Patriot Act for it when he just used a covert action finding to to order it and invoked executive power to break the law and do this back when he was in charge?
And then the Democrats passed the FISA Amendments Act to legalize Bush's crimes.
And whoever came next, Barack Obama, right?
Right, exactly.
You know, a lot of this stuff was originally done under Bush, like you mentioned, under Article 2 executive power that, you know, claiming that we're at war and that he can basically override any laws that he wish.
The Justice Department did change their legal rationale around 2004, 2005, but basically the same program remained intact instead of, you know, making it about just the constitutional powers.
They probably talk.
I mean, it's still classified to, unfortunately, the legal opinion.
So they probably brought in part of the Patriot Act.
And when the FISA Amendments Act passed, obviously they were giving they were given carte blanche.
But yeah, it's important.
You know, the president came out today and made a statement saying that, you know, the government is not listening to your phone calls and that, you know, this isn't as bad as people seem.
But he's correct.
They aren't listening, physically listening to the content of the phone call.
But what they are getting is where you're calling from, who you're talking to, for how long, when you call these people and when they call you.
And this is, you know, really invasive information that, unfortunately, is less protected under the law than it should be.
What's funny is the Bill of Rights remains completely out of this conversation, right?
The Fourth Amendment, never heard of it.
And free association in Amendment No.
1 has nothing to do with this, right?
Right.
Well, I mean, it should, for sure.
The problem is the government is arguing that it doesn't.
I mean, they have all sorts of tricks and word games they play to try to get out of their obligations to the Fourth Amendment.
So they, like, have a different definition of the word collect than most people do.
You know, when you read it in the dictionary or any person off the street, if you think, well, the government, when is the government collecting your information?
Is it when they intercept it and put it into a database?
I mean, of course, that's what we would think.
But the government doesn't think they've collected it until it's intercepted in a database, it's been keyword searched for suspicious material, and then, finally, when the computer picks up some unknown, you know, red flag, it's sent to a person in the NSA, and they physically look at it with their eyes.
At that moment, the NSA considers things collected and no further.
So, you know, it's really disappointing seeing how these word games are played when you know clearly what is going on, yet they don't want to seem to admit it.
Yeah.
Well, and, you know, here's the funny thing, too.
There was a story that came out a few weeks back, I'm sure you're aware, Glenn Greenwald wrote all about it, this FBI agent being interviewed on CNN talking about the Boston bombing attack said that the government, I don't know if he said the FBI or the NSA, but one way or the other, that they would be able to go back and listen to the older Tsarnaev brothers' telephone calls, not just go back and map who his cell phone ever contacted kind of a thing, but what did they say?
And the CNN lady said, wait a minute, am I hearing you right that you're saying that they're recording all of our phone calls like audio?
And he goes, yep, that's what I'm saying.
And then she interviewed him again the next day on CNN and asked him about it again.
And he said again that, yeah, that makes sense.
Now, I asked James Bamford, who's written three books about the National Security Agency about this on my other radio show today, and we talked about how, you know, telephone quality is really not that high quality, 14K, and you could probably zip that way, way down into some tiny little thing if you had the smart codec for that sort of a thing.
And if you have Alamo dome-sized warehouses full of storage and the giant thing they're building out in Utah and all the rest of these things spread all over the place, if you look at the fact, like as Bamford pointed out today, they say in their slides, you know, here they're getting all this data.
Well, they want Dropbox next.
Well, Dropbox is how I send you a gigantic file, right?
But they're planning on sweeping up all of that.
So really, I don't know, you know, if anybody's the computer genius enough that they could estimate off the top of their head how much data we're talking about in terms of audio files of phone calls in America, but really, is it that far outside of the realm of possibility that they are in fact recording and saving as audio files every phone call in America, that then they can go back and look and that FBI agent wasn't just talking out of his hat, that he was actually leaking a real big deal right there on CNN?
Yeah, I mean, I think it's an open question.
We had never heard that before he said that and, you know, it was unclear about how extensive his background was and whether he would have known if that was true, even if he was in the FBI.
Agreed, yeah.
And, you know, I think we should look at that with a skeptical eye.
But you know, I also think that it's, you know, these revelations that came out today are just as bad.
I mean, I, you know, honestly, you know, everybody thinks about, oh, they could listen to my phone calls.
But sucking up all this metadata can actually be worse because they can get a, I mean, because I don't know about you, but, you know, I'm not talking on the phone all day telling everybody all of my plans, where I'm going constantly, what I'm doing, who else I'm talking to.
But if they have the metadata about, you know, who I'm calling, when it's happening, the location of my phone, when I make those calls, they can actually map out your life a lot more in detail than even if they had the content of the calls.
So, you know, I think, you know, he said that and, you know, I think we should take it with a little bit of a grain of salt, but either way, you know, we should really be worried that our privacy is being invaded, even if it's not the content of our phone calls.
Yeah.
And I should be careful and make sure that nobody misunderstands me about what Bamford said.
He was certainly not confirming that that was the case and that he's never reported that in all of his reporting on the NSA.
But the question was, is it within the realm of possibility?
And I actually thought he was going to say, no, Scott, that's a bridge too far.
But he didn't say that, Trevor.
He was saying, you know, talk about the amount of storage when you're in zettabytes of storage space now, which is all that's ever been published in all of human history times a zillion.
I mean, what the hell?
Why not?
Right.
They definitely do have the storage space for all that.
And that's why they're able to suck up billions and billions of email data.
You know, it's funny.
I actually have a couple of lost Glenn Greenwald interviews that I wonder.
I always wondered whether the NSA was keeping a separate backup file on my show, you know, just happens to be two.
I think two different Greenwald's that I've lost over the years.
You know, just a computer crashed and the files couldn't be saved.
Funny coincidence that.
Yeah.
You should FOIA for those.
Yeah.
I should do that.
National Security Agency.
You keep an archive of anti-war radio for me.
Thanks.
All right.
Good.
Well, I'm Scott Horton.
I'm talking with Trevor Tim from the Electronic Frontier Foundation.
And I'm checking my notes here because there's so much to go over.
Oh, one thing here real quick.
Can you clarify about business records here?
Is that the excuse under the Patriot Act?
But then they're twisting business records to mean the phone data of regular plain old phone calls between mom and daughter and where I have nothing to do with business there.
What counts as business is Verizon is business.
And so give us mom and daughter's phone records.
Right.
Right.
The business records provision is being twisted in a few ways.
One, it's supposed to be relevant to an ongoing investigation.
And so it seems like the relevant standards standard for the NSA is if you're a human being that talks on the phone and, you know, with the business records statute, it's basically saying that they can get all relevant things to this investigation.
And apparently they don't think it actually has to be, you know, business records of the individual person.
They're talking about business records of Verizon.
So, you know, all of the call records of all the individuals subscribed to Verizon are Verizon's business records.
And so the NSA thinks they can take them that way.
Yeah.
And what's funny is because I've seen actually a little bit on Twitter people defending it like, oh, they're not going after your my phone records, just business records like, oh, just those mean old capitalists are the ones whose privacy is being violated.
So everybody.
Yeah.
Everybody.
Yeah.
And by the way, I think you alluded earlier, I think you used a qualifier there.
It's not a proven fact, but it's a very, very safe bet that this order to Verizon is only one example and that every telecom in America is turning over everything because they all have a government gun to their head, each and every one of them and and continually to write.
This isn't just for two weeks in a special case.
Yeah, exactly.
Like the most amazing part was when this order came out, you know, this is one of the most secret documents that is leaked that I can remember.
And almost immediately, all these congressmen started confirming that this was real.
And not only was it real, but this, they said, was, quote, routine so that every three months that these orders are renewed so that the government can keep collecting this massive amount of data.
And, you know, there is there's government statistics on how many times they ask under the business records provision of the Patriot Act.
And last year, they asked 200 times.
So you can imagine if one of these orders is looks like this, that it's, you know, the entire country's data said who use Verizon, that many of the other orders probably look similar.
And if they're going to do it to rise in, you know, common sense would have it that they're going to do it to AT&T, they're going to do it to Sprint.
And in fact, The Wall Street Journal, they didn't publish any documents, but they said that government officials have already confirmed that AT&T and Sprint do get these orders.
Yeah.
Well, you know, I'm not much in a collective guilt, but George W. Bush, after The New York Times sat on the story for more than a year until after he was reelected, and then what a year after that.
And finally, in December of five, they let their reporters look loud and rise and tell us about the NSA spying program.
And Bush gave a press conference the next day where he stood up at the podium.
And he said, Yeah, I'm paraphrasing.
Yeah, that's right.
I'm guilty of millions and millions and millions of counts of violations of the federal felony FISA statute, five year prison term per violation count $10,000 fine.
What are you going to do about it?
And the American people said nothing.
And Nancy Pelosi said impeachment is off the table.
And the American people said, OK, whatever.
And so they got away with it.
And then they did kind of have the technical problem that it was illegal as hell.
And so the Democrats legalized it.
And so now here we are going, Oh, my God, I can't believe the Democrats have implemented the general warrants that we all know they legalized back in 2008 that Obama voted for when he was a senator.
Exactly.
You know, it was our lawsuit in 2005.
We sued AT&T, a clash action lawsuit, after we got a whistleblower coming to us with blueprints and photos of an AT&T facility here in San Francisco that showed an NSA secret room where they were splitting off cables and sucking up massive amounts of data as it was going out to the to the rest of the world.
And the retroactive immunity that was passed during the FISA Amendment Act was actually to thwart EFS lawsuits.
So, you know, it was, you know, extremely disappointing to see that it was it was so blatant to everybody that they had broken the law yet were able to get away with it because Congress let them.
Yeah.
And then one more thing I wanted to point out here real quick about the Bamford interview earlier.
And that is what he said about what a lousy job that these guys do, by the way, when all of these plots still continue to happen on their watch and their real job is finding needles in haystacks.
And all they keep doing is adding hay to the stack instead of, you know, expertly focusing on, you know, what's the straightest little thing in this pile and narrowing in on that needle.
And they just continue to fail, including up to and including the Boston attack a few weeks ago.
I know that it's such a good point.
You know, it's not like that anybody's out there arguing that they should never be able to use targeted surveillance and criminal investigations for any reason.
You know, we're just arguing that the government take the procedures that they've been taking for over 220 years since the Constitution was written, which is they go to a judge with probable cause and get a warrant for this information and not only get a warrant, but make sure that they name the person that they are investigating.
You know, you had mentioned general warrants earlier.
You know, it's a great example.
These FISA court orders are general warrants.
They're targeted at a group of people, and the group of people turns out to be everybody in the United States.
And you know, it's important to remember that that's what the Fourth Amendment was specifically written to prevent.
You know, the founding fathers were worried about King George's troops coming into their house or having a warrant for the entire town and using it to go door to door to knock on people's to get into people's houses and search their things without any real cause.
And that's the exact same situation we have here, and we would like to get it back to the point where it was, you know, pre-911, where, you know, the law had to be followed and the Constitution had to be followed during these criminal investigations.
Okay.
And now, real quick here, please tell us about the efforts of this other organization that you're involved in, the Freedom of the Press Foundation, to raise the money.
It's extremely expensive.
You guys are raising the money to pay for the court reporters to transcribe the Bradley Manning court-martial, which otherwise would be lost to history.
Yeah, exactly.
So, you know, the other organization that I run is called Freedom of the Press Foundation and actually on our board is Glenn Greenwald and Laura Poitras, two of the journalists who have published these stories the last few days, and we're extremely proud of them.
But the main project that we're working on as an organization is getting court stenographers, professional court stenographers, into the Bradley Manning trial, because absurdly, even though he has a right to a public trial, the government refuses to release transcripts of the day's court proceedings, even though in civilian court, those would be readily available, and even in Guantanamo Bay, those are readily available to reporters the same day, but in Bradley Manning's case, they won't release them.
So, you know, we decided that this was a hugely important trial, you know, one of the most important whistleblower trials in 40 years.
You know, whether or not you believe Bradley Manning's a whistleblower, the charges they're bringing against him are so extreme that all future whistleblowers will be affected.
And so we've decided to hire court stenographers.
Unfortunately, the stenographers cost an extraordinary amount of money, almost $2,500 a day, and so we have turned to the internet to try to crowdfund this money.
So far, we've raised almost $70,000.
The response has just been unbelievable, over 1,200 donors, and the donors are only giving like $50, $100 a piece, and it's wonderful.
You know, we've collected so much money from so many people, and we're posting these transcripts online on our website, pressfreedomfoundation.org.
You can find the first three days of the trial there.
We're posting them less than 12 hours after the court hearing ends, and if you're interested in reading about the government's extreme arguments, I implore you to read these transcripts.
They're really a window into the government's arguments that we haven't gotten before.
And you guys are raising money there for that at Freedom of the Press, the Freedom of the Press Foundation, and that's at pressfreedomfoundation.org, correct?
Yep, that's it.
Okay, great.
Thank you so much for your time, Trevor.
It's great to talk to you.
All right, well, thanks a lot.
Always a pleasure.
All right, everybody.
That is the great Trevor Timm.
He's from the Electronic Frontier Foundation and the Freedom of the Press Foundation.
You can also follow him on Twitter.
He's Trevor Timm with two M's.
And I'm Scott Horton.
That's the show.
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I'll ask you to go look at my interview archive.
Sign up for the podcast feed over at scotthorton.org.
I've got another radio show with a lot of other great interviews.
This week, I talked with James Bamford and Marcy Wheeler about the NSA scandal.
Also, I spoke with Marcy and Jared Fuller and Chase Madar about the Bradley Manning trial, Pepe Escobar about America's support for jihad in Syria, and Phil Giraldi on the massive protests going on in Turkey.
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