07/12/13 – Marcy Wheeler – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott.
I am joined on the line by the great Marcy Wheeler.
Empty Wheel, they call her in the blogosphere.
EmptyWheel.net is her great blog.
Welcome back to the show, Marcy.
Thanks for joining us.
Thanks for having me.
Well, you're welcome.
Very happy to have you here.
EmptyWheel.net is the place, and you can find the full Ed Snowden statement I was just referring to republished there.
It's also at wikileaks.org.
So, listen, I was hoping that you could catch us up a little bit on the Microsoft and the Skype and the what have you.
You know, Glenn Greenwald's way too cool to return an e-mail to me nowadays.
So I've got to find my – I've got to invoke other geniuses to come and explain his journalism.
But before we get into the newest stuff – and, in fact, we could even talk about the Latin America stuff.
We have a little bit of time.
We only have about ten minutes.
But I was hoping first that we'd talk just a little bit, if you could clarify your understanding of the prison thing, because people are still fighting and accusing Greenwald of being a lousy reporter, because he says that Snowden says that the slide says that prison provides direct access.
But, nuh-uh, it's just a little box, and that's different.
And so what is the truth about that?
Marcy, could you tell me?
You know, I think that's actually a red herring.
And perhaps not surprisingly, that's what Glenn's detractors want to focus on.
The point is that analysts on their own accord can get into data from these companies without oversight of the FISA court.
The FISA court approves orders, not specific orders – not specific, sorry, directives.
And so what that means is that from – through a variety of means, and that's one of the things that this new Microsoft story shows us.
Through a variety of means, people at NSA can go and get the data without a piece-on-piece oversight.
And I think it's important to understand that there's a variety of means.
And what we learned yesterday is that Microsoft goes to – works very closely with the NSA to make sure that the NSA and the FBI continue to get that access fairly easily.
And in expanded form.
Okay, so I want to let you talk about those other things.
But as far as PRISM goes, is it – so if I'm an NSA analyst, I log into PRISM, and then from there I can get into the databases of, say, Yahoo's computers, or I can only get what their employees put in there, which would be only limited information that a judge has signed off on.
But you already said the judge is signing off on categories of information, not on individual people to look at or individual accounts to look at.
Just as an example, and again, we don't know how this works on a company-to-company basis, but the judge is going to sign off on, you can go access people you believe to be al-Qaeda figures.
And so the analyst can go to Yahoo and say, this email account belongs to an al-Qaeda figure.
The judge doesn't have to say the account belongs to an al-Qaeda figure.
The analyst does that.
And then some chunk of information becomes available.
And I think it actually is largely automated.
In other words, these companies have said that after they give the information over, they don't know what happens to it.
So they make it available, but they're not in a position, neither legally nor technically, to be overseeing what these analysts are getting.
Right.
Now, I mean, he made it sound like he could just log in to their computer and he could watch you typing a Facebook post or, you know, that kind of thing.
Or if you had a Yahoo email account or whatever, he could look at that.
So in other words, that wouldn't be the result of him asking Yahoo, turn over stuff about these suspected al-Qaeda people.
That sounds much broader.
I mean, obviously, the NSA could say that they believed you were al-Qaeda, but they probably wouldn't, right?
But if they could still look at your Facebook thing, then I'm still confused.
Right.
I mean, that's the thing is, from what we know, and really they shouldn't be in this position, but from what we know, the companies are not saying, you're wrong, Marcy Wheeler's not an al-Qaeda figure.
So there's not the – I mean, if the companies are asked to turn everything over on an individualized basis, they're more apt to say, and they have said, for example, in the WikiLeaks investigation, they've challenged whether or not – not whether or not they have to turn it over, they still have to turn it over, but they've challenged whether or not they should be gagged, whether or not they can't tell WikiLeaks about these requests, for example, or tell American citizen WikiLeaks volunteers about this information.
But on the Section 702 side, there's simply not that level of involvement on a human side from the companies.
And that's why I say at the red herring the word direct from their servers.
They're not getting access to everybody.
They're not able to scroll through Yahoo's accounts and say, I'm going to look and look and look until I find Marcy Wheeler's account.
But there isn't a lot of oversight at the analyst level when they're going and getting things.
Gotcha.
If that makes sense.
I do.
I believe I understand it.
So now when it comes to Skype and all of this, I don't know.
Is it right for everybody to assume that every kind of Internet communication that they participate in is completely compromised?
I saw a lot of outrage on Twitter, people going, what, really?
When I'm having Skype sex with my significant other, the NSA is decrypting that?
Well, if you're having Skype sex with your significant other who's in Europe, who for a variety of reasons is considered a legitimate foreign intelligence target is not known to be a U.S. citizen.
Okay.
But then that's still just 51 percent, and unless there's a crime or a threat to property, 10 other loopholes all kick in too, right?
Right.
And the threat to crime becomes more interesting then.
I asked yesterday, does the NSA consider sexting over Skype, video sexting over Skype, do they consider that porn?
I don't know the answer to that.
The NSA, DOJ in 2002 actually argued before the FISA court that they could look for and keep evidence of rape to use that to coerce people to cooperate with the federal government.
That's in the public record.
So if that's the way they use this intelligence, and the notion is that that then becomes foreign intelligence because they can use evidence of a rape that, say, some Pakistani American committed and then use that to turn that Pakistani American into a mole.
That's the kind of logic that they were using.
So if they're going to use that logic, if they're going to use this intelligence collection to find informants, basically, the notion that they're getting into people's Skype calls gets all the more interesting.
But that said, they still are supposed to.
And the Skype thing is important for two reasons, Scott.
First of all, under PRISM, they still are supposed to follow the rules which say one site must be in a foreign country and a legitimate foreign intelligence target not known to be a U.S. citizen.
So again, they're only going to be following your sexting Skype sessions if somebody is in Europe or Iraq or what have you.
But in addition, this says that if in a Title III context, so if they believe you're committing a crime, then we know, and we didn't necessarily know beforehand, we know that partly as a result of Skype becoming part of Microsoft, partly as a result of some other legal issues, they have the ability to get to that Skype session.
So one of the things, one of the important discoveries in yesterday's Microsoft piece is that if you've got encrypted communications via Microsoft, understand that the government can get to that communication before it goes out.
In other words, before the encryption process gets applied to your communication, the government can get to it.
And that's a really important distinction because when we talk about the encryption, the people that say Microsoft and presumably Google too apply to our communication, what we now know is that the NSA gets to preempt that encryption.
So we may have location-to-location encryption when we're using Microsoft or Google, but that may do us no good if the NSA really wants it.
That's funny.
And yeah, they already indicated, right, that if you encrypt something, then they consider you foreign, which means I guess you're hiding something or else why are you encrypting, and so then they're just going to crack it.
You're actually better off not encrypting, I guess.
Well, there are two issues.
One is encrypting your regular communication.
I mean, using Gmail, which is encrypted site-to-site, that is important because there are other people who want to steal your emails.
The harder you make it for people of all sorts to steal your emails is good.
But then there's the question of whether you go to the effort of encrypting it yourself.
So in other words, using Tor or something like that to encrypt your emails and your chats and what have you.
And the government, if they don't know that it's a U.S. person's communication, which if you're encrypting at that level they're not going to by definition, then they're going to keep it forever until they break it and read it and make sure that it's not interesting.
I'll tell you what.
I'm just sorry that we're not going to have time to talk about the Brazil revelations and the rest of it, but suffice to say, there's already a pretty severe political backlash against it, right?
Yeah.
I mean, partly this is theater.
Partly every country that has had our intersection of their communications exposed is going to use it politically.
Right.
Yeah, and they already knew, just like we both already knew too.
All right.
We've got to go.
Thank you so much for making time for me this morning, Marcy.
I really appreciate it.
Take care, Scott.
Bye-bye.
Everybody, that's the great Marcy Wheeler, emptywheel.net.
She's a brilliant genius.
Go and read what she writes.
Seriously.
We'll be right back with the great Colleen Rowley, who could have stopped 9-11 right after this.
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