08/12/13 – Hanni Fakhoury – The Scott Horton Show

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All right, y'all.
I know, I want to sit around with some Motorhead all afternoon, too, but we got a show to do here.
I'm Scott Horton.
This is the show, The Scott Horton Show.
My website is ScottHorton.org.
Keep all my interview archives there, more than 2,900 of them now, going back to 2003.
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And just real quick before we go to our guest, I got an e-mail here from Chris saying, hey, man, how come you're always saying Ed Snowden doesn't measure up to Bradley Manning?
Do you have something against Snowden?
No, I don't.
Ed Snowden is the greatest American hero ever, except for Bradley Manning.
What Bradley Manning has done is unparalleled.
The range of truth that he revealed to the people of the world and the positive consequences, the ending of the Iraq War, just for starters, makes him the greatest human ever, ever.
So how the hell is Ed Snowden ever supposed to live up to that?
That's pretty tough.
But no, what Ed Snowden did was absolutely great.
I don't have a single thing against him.
Not a single thing, except for that he ever went to work for the CIA in the first place, but that's all right.
We'll look the other way on that one.
I just want to be clear about that, because he's right.
I could see how someone would think that I kind of am holding something against Snowden there, something the way I keep talking about how he doesn't measure up.
But no, it's only because the greatness of Bradley Manning is absolutely incalculable.
OK, good.
I'm Scott.
This is my show.
And our only guest on the show today is Hani Fakhoury.
I'm sorry.
Am I saying your name right, sir?
Hani Fakhoury.
Hani Fakhoury.
Sorry about that.
I don't want to try to put a line over the A there.
Hopefully I won't screw it up again, although I'm not making any promises.
OK, so let me tell the people who you are here real quick.
He's from the Electronic Frontier Foundation, EFF.org.
Hani Fakhoury focuses on criminal law, privacy and free speech, litigation and advocacy for the EFF.
And he is co-counsel in a federal class action First Amendment challenge to California's Proposition 35.
I don't know what that is, but anyway, warrantless cell tracking and all kinds of great stuff.
Former public defender in San Diego.
That's interesting.
So welcome to the show, sir.
Very happy to have you here.
Thanks for having me.
OK, so and we got a good 25 minutes here.
So first of all, could you please catch us up on the insane, unbelievable Reuters stories from last week about other police agencies and their access to the NSA's victimization of the American people?
Sure.
So Reuters last week reported that it appears that some information obtained by the NSA as part of its kind of sweeping surveillance program aimed at foreign intelligence and national security and terrorism threats was basically funneling certain tips or certain information on to the DEA and a specific division of the DEA known as the Special Operations Division.
And basically would take that in from the DEA or the SOD would take that information, give that information to DEA agents and affiliated law enforcement on the ground and say, hey, you know, here's some information, here's a tip.
But you're required to find your own independent reason to stop someone or make a case or whatnot.
And, you know, the agents would take that information.
Let's say, for example, the information was, hey, we got a tip.
There's going to be a drug deal in a parking lot at eight o'clock on Saturday night.
Agents could go to that spot, could see the deal happen or, you know, whatever it may be, and then would be basically instructed to come up with their own reason to stop the car rather than acknowledge that it was the NSA information tip that led them there and then would hide the fact that they were using that tip or that information that was obtained by the NSA initially to end up in the parking lot in the first instance.
So in essence, you know, what I've called it is intelligence laundering, the idea being that the information was coming from the NSA.
Agents were finding their own other ways to justify pulling over someone or arresting someone or searching someone and not, you know, keeping the fact that the NSA was involved by passing that information secret.
Amazing.
But now I thought that they wouldn't even know about whether somebody was meeting in a parking lot unless they were meeting with al-Qaeda terrorists there.
Well, generally, the way NSA surveillance pretty much works, they're not supposed to target people within the United States who aren't suspected of, you know, terrorist activities.
But if in that course of investigating or targeting, you know, someone for national security risks, they come across other evidence of criminal wrongdoing, they are allowed to turn that information over to the appropriate law enforcement agency.
The real issue is the law enforcement agencies are then keeping the fact that they obtained this information secret and not disclosing it to defense attorneys.
It appears perhaps even some prosecutors and even judges as well.
And so I guess I could imagine, maybe you can, you know, fill us in on a lot.
I can imagine that this is going to, you know, lead to the review of some convictions because the defense attorneys, never mind the judges and the prosecutors, have a right to know all about the case against their client and where it comes from in every case.
But I'll let you answer to that.
But then the second part of that is, isn't this criminal?
And aren't they or are they in violation of not just the procedures the way you're supposed to do it, but criminal law for setting up these fake evidence trails and all this and defrauding the courts?
Well, there's a couple different kind of ways to think about it.
The first thing is, in terms of like pulling someone over or making an arrest, the Supreme Court has unfortunately said that officers can use pretext.
In other words, that if the reason for the stop is valid, it doesn't matter what the actual underlying motivation is.
So the case, it's a case from the late 1990s, I believe it's called Wren.
And in that case, the Supreme Court was dealing with a case where officers decided to pull someone over because they were African-American.
But then, you know, that was their initial motivation.
They saw two people.
They said they looked suspicious because they were African-American in a particular neighborhood.
But what they did was they waited until they allegedly ran a stop sign or didn't have a – made a left turn without putting their blinker on, for example.
And the Supreme Court said, look, as long as the actual reason for the stop, the traffic violation is valid.
It doesn't matter if the officers are racist pigs or not.
All that matters is the stop is valid.
So with respect to setting up – Well, it depends on what the meaning of actual is, right?
Well, and that goes more to the facts.
That goes to what the agents were – what was happening at the time the agents made the stop.
So, yes, that's true.
OK, I got you.
But ultimately what they then said – so I mean in terms of this program and challenging like the arrests for not being supported by probable cause, bringing like a kind of a Fourth Amendment type challenge, I think it's going to be hard.
But I think the bigger problem is there is a constitutional obligation of prosecutors to disclose both exculpatory evidence.
That means evidence that's favorable to the defendant as well as evidence that could be used to challenge the reliability of government evidence in a criminal case over to the defense attorney and to the defendant so that the defendant can basically prepare his defense.
And what this type of program does is it basically removes the investigative tips.
It takes them out of this kind of obligation, and so there's no longer this ability to have the right to challenge this evidence because the lawyers and the defendants aren't being told of what that evidence is.
And that creates a whole host of problems both as a matter of constitutional criminal law.
There's also specific rules under the federal rules of criminal procedure and in the federal statutes that govern discovery obligations of the government to criminal defendants.
And it basically removes a whole class of records and evidence and documents from out of that system that has to be disclosed otherwise.
So basically it would just be a matter of the Brady rules that you have to turn over everything so that they can defend themselves.
Is that more or less right?
That's – yes, exactly.
That's the big problem here.
But the actual faking of the evidence trail itself, is that not a crime?
Well, it depends.
I mean if there's actual dishonesty like the agents are planting evidence, obviously that's going to be a problem.
But using – saying, hey, show up at a certain spot and then come up with your own evidence to pull the guy over, it's not a problem in as much as we're talking about pulling the guy over.
But it becomes a problem if then you hide the true fact, and then there's no ability to challenge the disclosure.
There's a way to get around those disclosure obligations, and that's what the real problem is.
I hope that makes sense.
Yeah, I mean not if we're free, but as far as your explanation, yeah, it makes sense.
Yeah, I mean it's not – I mean Wren is a disaster of an opinion.
I mean don't let's not fool ourselves.
But unfortunately, it is what it is, right?
And so that's the situation we're in.
All right, now – okay, so well, we've got to get to the IRS in a minute here.
But when all this NSA stuff first started breaking with the Snowden revelations here, I'm trying to remember exactly the context.
But I remember Marcy Wheeler pointing out that they claim that, oh, we don't keep any of this or use any of this.
Oh, I mean unless there's indication of a crime against a person or property, which for her she was pointing out that like, wow, what a giant loophole, because that could mean violating copyrights and whatever.
We see how hardcore the movie industry is on downloading a movie or whatever.
So maybe even something like that they could keep.
But then I guess we never really – I don't know.
I'm sure she did, but I never really followed the chain of logic to like, well, wait a minute.
So does that mean that they are – that the NSA is actually bound to turn over any information that they accidentally, quote-unquote, collect on American citizens that could indicate any sort of crime?
And then so if that's right, then why are we surprised about this at all?
This is the program, is to unleash the NSA's anti-Al Qaeda capability against the average American citizen.
Well, there's – I mean that's I think an interesting issue.
The idea being that the surveillance was acquired in one sense and then is being used in a different sense in a way that's probably not all that imaginable to most people.
And I think that's the real problem is insulating the program from real judicial scrutiny separate and apart from all of the criminal kind of defense issues with it.
One of the most important things I think people have to remember is when last year there was a lawsuit in the Supreme Court involving NSA-type surveillance, and it was a case that was brought by a number of like civil rights lawyers who basically were doing work for people suspected of terrorism-type crimes.
And what their concern was, they were worried that under the FISA, under parts of the FISA Amendments Act that there was a fear that their surveillance was being – that their phone calls and their communications with their clients was being monitored.
And the government argued to the Supreme Court that, look, they couldn't show an actual instance where the communications had been monitored.
And so they didn't have a legal right to bring the challenge because they didn't have standing, and the case should be dismissed.
And at the time when the case was argued in the Supreme Court, the solicitor general for the United States told the court – basically made this argument.
And it was Justice Sotomayor who asked, well, under your theory, is there anybody who has standing to challenge the surveillance?
And what he said was, yes, a criminal defendant whose – this type of evidence is being used against a criminal defendant could bring the challenge.
And the challenge – and that will not only ensure that the disclosure obligations are being met, but it also provides judicial scrutiny of the program in and of itself.
Well, here we have an example of how that's actually not happening because the program is being insulated.
It's being kept under wraps so that it's not clear what's going on.
The program is not being challenged.
The discovery obligations are being skirted.
So this is exactly what you were talking about, this idea that the surveillance is being pushed out of the picture and it can't be touched or challenged by anybody.
Now, the Special Operations Division of the DEA, this is basically just the office where the NSA launders their intelligence through to the police agencies and then they pass it out to whoever they want?
Or how does that work?
Well, so the Special Operations Division, it looks like, according to Reuters, there's other agencies that are potentially having access into this information.
So one agency is the IRS.
So the IRS is now getting information that it could then spread or disclose to its agents from the DEA who's getting it from the NSA to investigate tax fraud or money laundering, etc.
And so it really raises some questions about if surveillance that has initially started with the idea of stopping catastrophic violence that affects thousands of people and avoiding a repeat of the terrorist attacks on 9-11, if that's what we're starting with, how are we getting to the IRS having access to some of this information?
And that's what's really, I think, troubling about the whole program.
The IRS is not – tax laws are important.
They need to be enforced, but they're not really the same kind of – they shouldn't really be equated with the same – with national security risk or violent risks or terrorism, etc.
Well, you know, Carol Quigley, the famous historian, had this theory about, well, like weaponry and liberty and how in the medieval days when everyone was more or less equally armed with swords, there was relative liberty.
And then somebody invented the saddle, and all of a sudden you had the specialized warfare on horseback, and so those who could afford to have a small army of knights could afford to be tyrants and really deprive people of their liberty.
And then somebody invented the musket, and so now I can shoot your ass right off your horse from way over here, and so all of a sudden liberty became more equalized again and that kind of thing.
And this happened to be right around the time that shipbuilding was getting good enough that people started settling in North America.
And this was leading up right into the era of the foundation of this country.
And our laws reflect the fact that the average citizen, as soon as he sees the whites in their eyes, can shoot his local oppressor.
And so therefore we have a bill of rights that actually is pretty good.
And what Quigley said was now that we live, and he wrote this in the 60s, now that we live in an era of unlimited specialization when it comes to warfare, especially in the U.S. government with their Apache helicopters and their wiretapping and the weaponry that average citizens couldn't possibly have, the only thing that's still protecting our liberty is our devotion to the old law.
The law that was written back when regular people had the ability to enforce their liberty against the state.
You know, as Jefferson said, when the state, when the government fears the people, there is liberty kind of thing.
Well, now they have no reason to fear us, really.
They have this unlimited ability to do whatever they want with us.
The only thing left protecting us is this old law, and we're letting it just be eroded day by day by day, where eventually, and it's just a matter of computer power, right?
I mean, I'm not saying I think they're there yet, but then again, I don't really know about it.
But at some point, you really could just have the NSA, the IRS, every state police agency, every local sheriff's department, all these databases combined in a way, and with all the different checks and balances and separations of powers erased, so that you can't even drive down the street without the IRS knowing that your license plate is driving down the street and they can come get your ass if they think you owe them $100.
Where we will all be completely owned at this point if we cannot enforce things like the Fourth and the Fifth Amendment, our very last hopes kind of situation, right?
I mean, they have the ability to watch us even in our houses at this point.
Well, there's definitely a troubling trend where the surveillance technology, the ability to use technology to learn more and more and more insight about a particular person is increasing rapidly, and the law has struggled to keep pace at times.
And that's partly because, like you mentioned, the law was written – the Fourth Amendment was written in the 1780s.
It's pretty old, and it talks about papers and effects.
It doesn't envision cell phones and emails and all this sort of sophisticated technology computing that we have today.
So we have to be very vigilant and ensure that our legal rights and our constitutional protections stay alive at an age when technology is rapidly expanding.
And so the way to do that is to insist upon our constitutional protections, to ensure that there's limits in place, to bring legal challenges, to do all these sorts of things to ensure that we don't give away all of our legal protections merely because it's now much easier to do pervasive surveillance on someone than it was 20 years ago.
Yeah.
Well, the thing is, too, is there's so many depredations and deprivations going on all the time, it's hard for anybody to keep up, even at the EFF, right?
I mean, how many different scandals can you try to confront at once?
You have one here from July 31st about the new court ruling that says that if you tell anyone anything, then the government has the right to that information, too, on the cell phone tracking.
Can you elaborate about that?
Sure.
That was a case where we litigated where basically it was a case where the government went to a judge and asked for permission to go to some cell phone companies and get access to what are called cell phone tower data.
It's basically the record of which cell phone tower your phone connects to at a particular time.
And they went with a request, not for a search warrant, but under a lesser legal standard.
And the judge denied the request and said, you need to come back with a search warrant.
Ultimately, the government appealed that decision up to first the trial court who agreed with the magistrate court and then up to the court of appeals and basically said, hey, look, this information is just the business records of the cell phone company.
We don't need to get a search warrant to get this information.
And ultimately, the court of appeals agreed and said, look, when you buy a cell phone, you understand that you're giving your location over to the cell phone company by virtue of the fact that they create these records.
And by doing so, the government is allowed to access those records without a search warrant because you've surrendered any expectation of privacy in those records when you gave them up to the cell phone company.
So, I mean, again, this is, I think, another situation where we're talking about, again, the inability to keep the law up to date with the changes in technology.
The cases the court of appeals relied on in reaching this conclusion were two cases that came out of the 1970s in the US Supreme Court, which dealt with a record of the phone numbers a person dialed and bank records, records of a person's deposits at a bank.
Well, now we've got technology allows a cell phone company to know every cell phone tower you connect to.
There's tons more cell phone towers than there was even 10 years ago.
And if you live in an urban area where there's a lot of cell phone towers, they can pinpoint you to a certain street.
There are experts who said the technology is improving where they can pinpoint you to certain floors in a building.
So it becomes a situation where the technology at issue is far – or the information at issue is far different in scale and scope than what the court was originally envisioning back in the 70s when it was talking about bank records and phone calls.
So, again, that is another area where the law hasn't kept up with the changes in technology.
And we've pushed courts to think outside the box, to think more long-term about how this technology will implicate people's rights to privacy and association.
And unfortunately, at least in the most recent case that we were talking about, the court didn't see it that way.
I'm not even sure that I agree with your interpretation of that.
I mean, if the phone company prints out my – whatever information that they have about my cell phone, then still, those are papers.
And that's in the Fourth Amendment.
And after all, I mean, did Hamilton – I saw this comment at Reason Magazine blog where they were talking about this.
Even Alexander Hamilton, who was the very worst of all of them, he could have never imagined in a million years that if you hired a courier to take a stack of papers from one side of town to the other, then that means that all bets are off and the government can have it just because you hired a third party to carry it out.
There's no business records exception in the Fourth Amendment or the Fifth Amendment or whatever, right?
This is all crazy.
I think that's the point.
The point is that, again, the law didn't envision these sorts of things.
I do argue that the spirit of the law protects this information fully, consistent with the terms of the – consistent with the text of the Fourth Amendment.
But unfortunately, the courts haven't agreed with us on that issue.
So there's still more work to be done, and we hope other courts will see it differently.
But we're working on it every day.
Yeah, it just seems like that whole third-party doctrine is just – it's more or less made up out of whole cloth, right?
There's nothing consistent with the Constitution there at all.
Well, I think even – I mean I somewhat agree with you.
I mean I think that it's not that it was made up out of whole cloth, but rather that it's been interpreted far more expansively than was originally envisioned by the court when it first kind of announced the idea.
I mean on the one hand, it is kind of supported by some common sense, an idea being that if I tell you something, I run the risk that you're going to go tell someone else.
But the problem is the scale of the doctrine does not comport with reality today, and that's what the real problem is.
See, I mean even taking the risk that I'm going to tell your secret, that – I don't see how that means anything.
If you and I have a contract that I'm to keep your secret, then I could break that contract, and then I could be held accountable for that.
That doesn't mean that I now have the right to tell whatever about you that I feel like to whoever I want to tell it to.
Well, I think you're hitting upon the problem, which is, again, like it's one thing for me to say, okay, I have a contract with my cell phone company that they're going to provide me with cell phone service.
The question becomes, well, what does that mean in a larger sense?
Does it mean that they then therefore have the right to just take all my information and give it away willy-nilly or to just open their doors to anybody who wants that?
I agree with you.
I would think the answer is no to that.
But again, the problem is the courts are not thinking of it from that sense.
They are stuck in the paradigm that was constructed 40 years ago on records that are far different than what is at issue today.
And that's one of the big kind of obstacles to getting our privacy protections up to date in the law – consistent with the law today.
All right.
Well, I sure am glad there's an EFF.
We'd be in a hell of a lot worse situation without you guys.
I know that for sure.
Well, I appreciate that.
Yeah, we're working hard to hopefully fix some of these problems, and we'll see.
All right.
Well, listen, thanks very much for your time on the show today.
I really appreciate it.
Anytime.
Thanks so much.
All right, everybody.
That is Hany.
I said it right.
Hany Fakhoury.
I might have said that wrong.
He's at EFF.org, the Electronic Frontier Foundation.
And this latest article is DEA and NSA Team Up to Share Intelligence Leading to Secret Use of Surveillance in Ordinary Investigations.
And with the update about the IRS there.
Boy, oh boy, isn't that going to be something when every government database is up for grabs for any government agency?
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