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"Do we really want the NSA to poison the international online community?" Marcy Wheeler interviewed

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Scott Horton interviews Marcy Wheeler on February 28. From the program notes:

Blogger Marcy Wheeler discusses her work with the Greenwald/Scahill/Poitras media project The Intercept; the extent of NSA data mining, which tech firms/telecoms are cooperating, and the maze of legal justifications; and why, if a government agency must spy on everyone to no good effect, it might as well be the CIA instead of the NSA.

Plus Ron Wyden's excellent questions.

Podcast here, transcript below the fold.

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Scott Horton interviews Marcy Wheeler
The Scott Horton Show
February 28, 2014

TRANSCRIPT

Scott Horton: All right, y’all, welcome back to the show. I’m Scott Horton and this is my show, The Scott Horton Show. Next up is the great Marcy Wheeler, emptywheel they call her on the internet, that’s emptywheel.net, and also @emptywheel there on Twitter, a lot of fun to follow. Welcome back to the show, Marcy, how are you doing?

Marcy Wheeler: I’m doing all right. How are you, Scott?

Scott Horton: I’m doing real good. Hey, do me a favor and put in a good word for me with Jim White, because he’s really good on Iran and I want to ask him about it.

Marcy Wheeler: I will do.

Scott Horton: Cool, thank you. Hey listen, what I meant to say before that was, first of all, congratulations. Not so much to you, though, but to Glenn Greenwald and to whoever’s in on this, Scahill and whoever all is in on this Intercept project and First Look Media. Congratulations to them for hiring you. I don’t know exactly what your title is, but I imagine your job is making sure that they’re right about everything, and so I hope they’re paying you a million dollars a year, you’re certainly worth it, and it’s got to be the best move they could have possibly made was bringing you on board there. That’s what I think.

Marcy Wheeler: That is an amazing statement. It is at this point a limited relationship, but I’m really excited about it. There are so many great people over there.

Scott Horton: Cool. Well, I sure hope that – well I hope they run everything they publish by you first – (laughs) that’s what I would do if I could, you know? So. Anyway. So, good deal, welcome back to the show. Congrats to you and to them.

Now, tell me this. There’s a lot of things to talk about and I should, you know, let you pick a lot of the priority, but one of the things I wanted to ask you about, first of all here, was about the claim made by the state back in – a couple of weeks ago, I guess, now. I forget, in USA Today or whatever it was, where they said, “You know what? Everything you’ve heard up until now is wrong anyway.”

Marcy Wheeler: (laughs)

Scott Horton: “We have not been collecting all your metadata. We’ve only been collecting about 20% of the metadata anyway.” And I’m wondering if you think that maybe that’s right, or if it’s not, what’s the significance of that, either way?

Marcy Wheeler: I think it could be narrowly correct. And by narrowly correct I mean I think that it is possible that right now under the Section 215 program, the providers – there were three in July, let’s assume there are still three, but even that may not be true – providers, if they were providing just the phone calls of their own customers might only be providing 30% of the calls in the United States. So – and the numbers varied actually. You know, there was 20, there was 30; Keith Alexander has since said, “No, that’s not true.”

So in other words, if you time delimit it, if you say right now they’re only getting 30%, if you assume that none of the providers, not AT&T and not Verizon, are also providing the other calls that transit their backbones, which we know in the past they were doing, if you assume that we’re only talking about Section 215 data and not the larger phone dragnet of which Section 215 is a tiny bit, and if you’re also talking – I think that – there are a number of legal issues that have happened since the Snowden leaks started.

On July 19th, one of the judges in the FISA court said, “You can’t collect location data with this.” And at that point any provider who didn’t want to have to play anymore could just say, “Sorry, I can’t give you my data except with the cell location data,” and then they could stop providing. And if I were Verizon, that’s what I would have done.

So on July 19th, one of the judges in the FISA court said, “You can’t collect location data with this.” And at that point any provider who didn’t want to have to play anymore could just say, “Sorry, I can’t give you my data except with the cell location data,” and then they could stop providing. And if I were Verizon, that’s what I would have done. Another interesting thing is that since the Snowden leaks started, Verizon and Vodaphone have decided to and have effectively split up. And so it’s possible that the government was getting a lot of the data that it did get from Verizon but offshore, because Verizon was part of the Tempora program which GCHQ could require Verizon’s involvement because they were a UK company and they were getting massive amounts of metadata. That may not be true anymore because Verizon is no longer a UK company.

Scott Horton: Right.

Marcy Wheeler: And then there are a couple of other issues. But so that’s the point is, it cannot be true, it is probably impossible to be true for the life of the program. And just as an example, they say one of the providers that is not providing data is T-Mobile. And the only person they have ever busted using Section 215, the only one, Basaaly Moalin, who’s a Somali-American out in San Diego, uses T-Mobile. The most likely person between him and the Somali warlord that they said they contact chained on also uses T-Mobile. So if they weren’t getting T Mobile call data, they would never have found Basaaly Moalin, or maybe they found Basaly Moalin using data from another source. And so I think that’s part of what’s going on, and I think that –

Scott Horton: That’s the case that they cite as the one time that they caught a terrorist with this thing, and he was really just sending some money back to Somalia was all.

Marcy Wheeler: And not even to support terrorism. I mean, he basically was trying to fight a U.S.-backed Ethiopian invasion of Somalia, so, yeah, I mean, that’s –

So but there, you know, there are a bunch of things, and I haven’t written them all up into a post, but I think it is possible, legally possible narrowly. Just as another example, there is zero reason to believe they’ve got Skype data yet. And that’s going to be a lot of international phone calls. That’s how I call my mother-in-law in Ireland. So, so, you know, that, that – but, but we’re talking Section 215.

Scott Horton: Ah. Right. Right.

So in other words, there’s a lot of other ways they can get this data, and it is impossible to believe that they’re only getting 30% of the U.S. phone records because we know they’re getting so much data overseas that involve U.S. persons.

Marcy Wheeler: We have no reason to believe Microsoft has been part of Section 215. But you know what? Microsoft is part of FISA Amendments Act, PRISM, and they could get the data that way. So in other words, there’s a lot of other ways they can get this data, and it is impossible to believe that they’re only getting 30% of the U.S. phone records because we know they’re getting so much data overseas that involve U.S. persons.

Scott Horton: Well, their whole excuse here – there’s so many issues here to discuss – but their whole excuse is that, listen, we have to collect it all or else we won’t have the haystack to go and dig through. And so they’re really undermining their entire argument, you know, really, if they really want to claim that this is true, that somehow they can only data mine 30% of us and then that qualifies somehow, um –

Marcy Wheeler: And then conveniently the other thing that’s going on is that in a couple of the lawsuits – for example, Larry Klayman, the head of Judicial Watch who won his suit in DC and it’s being appealed, he’s not a Verizon land line subscriber, he’s a Verizon cellphone subscriber. And so the convenient thing about this leak is that now they’re going to challenge Klayman’s standing, they’re going to challenge the standing of some people in the suit in the California, so in other words it’s a really convenient explanation. And if everything was honest then I think you could also go to them and say, look, you know, either they’re doing it with Section 215 or they’re doing it with FAA or they’re doing it with other authorities, all of which are possible, but the point is they have this dragnet that they’re collecting it. If they’re doing it with other authorities, they’re even legally more suspect than they are with Section 215, and I think there’s increasing reason to believe that that’s true.

Scott Horton: Well, and at this point we can pretty much take it as kind of a rule of thumb that if they ever say that “We are not doing X, Y or Z under Section 215 of the Patriot Act,” that all they really mean to say is they are doing it under Section 702 of the FISA Amendments Act, or they’re doing it under Executive Order 12333 or some other thing maybe that we don’t even know about yet, but there’s virtually no line that they haven’t, that we’ve found them to refuse to cross yet, right?

Marcy Wheeler: Right. I mean, there was an interesting – this is not actually new but it’s new to me – so there’s a woman, Caroline Krass, who is right now the acting head of OLC at DOJ, so she’s the one who tells Obama whether he can kill somebody with a drone, kill an American with a drone, which is, you know, the other big question. She’s also up for being the General Counsel of CIA. And Ron Wyden asked her a really – you know, one of those classic Ron Wyden questions.

Following up on her confirmation hearing in December, he said, “Look, so, uh, there was this, uh, May 6, 2004 Jack Goldsmith opinion. Can you tell me whether it authorized phone dragnet collection not under Section 215?” And we know it did. We know that for two years, you know, from May 2004 until May 2006, we know that the phone dragnet continued based only on that opinion that Jack Goldsmith wrote, and it continued without the FISA court approval that it subsequently got. So we know that he makes some argument in there which remains classified that basically says the executive branch can approve getting phone dragnet without any kind of court review whatsoever.

There’s this whole area where DOJ doesn’t have visibility into what NSA is doing and it’s precisely that area where there’s this still active memo saying that the executive branch doesn’t need any of this, you know, legal authorization.

And so Wyden asked Caroline Krass, he says, “Well, is that still active?” She’s like, “Well, we can’t withdraw it. There’s no reason to withdraw it.” So it’s an active OLC memo. She’s like, “But don’t worry, we’re not relying on it.” And then earlier this week there was a hearing for somebody else, it doesn’t matter who, but both Dianne Feinstein – and you know it’s serious if Dianne Feinstein says it – both Dianne Feinstein and Mark Udall are like asking the nominee, they’re like, “Uh, tell me about your oversight role, DOJ person, tell me about your oversight role on 12333,” which is the stuff collected overseas. He’s like, “Uh, no, we don’t have one.” You know? So she wouldn’t know. Like there’s this whole area where DOJ doesn’t have visibility into what NSA is doing and it’s precisely that area where there’s this still active memo saying that the executive branch doesn’t need any of this, you know, legal authorization.

Scott Horton: Yeah, and that’s because of the original Authorization to Use Military Force, or, no, this executive order goes back to Ronald Reagan so this is just a plenary power of the inherent authority of the president, as David Addington would put it, or something like that, right?

Marcy Wheeler: That’s an excellent David Addington interpretation. I love it. (laughs)

Scott Horton: (laughs) Yeah, something like that. So. Yeah, in other words, “We can’t find it in Article II but all you need to know is the president is the commander in chief and so that’s all you need to know and he can do whatever he wants. And what are you going to do? Stop him? That’s what I thought.” Did they write that right in the memo?

Marcy Wheeler: Right. Exactly. It always comes down to that. “What are you going to do, stop him?”

SH: Bush goes, “Yeah. I’m guilty of millions of counts of violations of the felony FISA Act. What are you going to do about it?” And the Congress was like, “Nothing, you’re the boss, dude, you’re the decider.” And that was it! That was all he had to do was just say, “What?”

Scott Horton: Yeah. Exactly. Like a schoolyard bully. “What are you going to do about it? Uh huh.” Just like when Bush, when the New York Times finally published the story in December ’05 by Lichtblau and Risen about the Bush program, he gave a speech the next day or, you know, went out and did a press conference the next day where he goes, “Yeah. I’m guilty of millions of counts of violations of the felony FISA Act. What are you going to do about it?” And the Congress was like, “Nothing, you’re the boss, dude, you’re the decider.” And that was it! That was all he had to do was just say, “What?”

All right, anyway, I’m sorry, I’m just running out the clock because we’ve got to take this stupid break, and then we’ll be back with the heroic Marcy Wheeler, emptywheel they call her on the internet, emptywheel.net, and also on Twitter. We’ll be back in just a sec.

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Scott Horton: All right, y’all, welcome back to the show. I’m Scott Horton. This is my show, The Scott Horton Show. I’m on the phone with Marcy Wheeler from emptywheel.net. And you can follow her on Twitter too, @emptywheel there.

And now, let’s see, there’s so much to talk about. Well, let me make sure that you didn’t have anything else to finish up on the prior topics there on the different authorities that these, you know, different spying against the American people is carried out and that kind of thing before we move on. Is there anything there?

Marcy Wheeler: No, no, I’m good. I’m good.

Scott Horton: All right. I’m never sure because this stuff is so complicated and, you know, who knows?

Marcy Wheeler: Well, you tell me, because I, you know, I don’t even know what I – I can’t even see anymore, you know what I mean? (laughs)

Scott Horton: Right. Yeah, no, I could understand. You might need to take a vacation, go parasailing or something a little bit, come back, fresh perspective. But no, I mean, you do a bang-up job here. I don’t know anybody who’s as good at it.

So, let me ask you about this, this latest Greenwald piece at The Intercept, that’s firstlook.org/theintercept, of course, “How Covert Agents Infiltrate the Internet to Manipulate, Deceive, and Destroy Reputations,” and I was hoping you could, well, fisk it in a good way, you know what I mean, kind of take us through here, because it’s a pretty long, complicated thing, and so I was hoping you could explain, you know, what it is they’re doing and then as far as we know so far, to what extent they’re doing the horrible things described in these documents and in this article.

Marcy Wheeler: Well, and I should say that I haven’t gotten any more access into those particular documents than anybody else has, so, you know, I can’t pretend to have read everything in –

Scott Horton: Oh, I mean, they published a whole slideshow. I don’t know if you read the whole thing. I didn’t.

Marcy Wheeler: Yeah. Yeah.

Scott Horton: But, I mean, they published quite a bit there about it.

We expect the CIA to go overseas and infiltrate groups and carry out kind of covert things to get people to, you know, to, to, to, to win elections that otherwise wouldn’t be won and so on and so forth.

Marcy Wheeler: I think what’s really important about that story is that we expect the CIA to do stuff like that. We expect the CIA to go overseas and infiltrate groups and carry out kind of covert things to get people to, you know, to, to, to, to win elections that otherwise wouldn’t be won and so on and so forth. And what we’re seeing really is not only the NSA setting up that possibility online – let’s just say GCHQ, because that’s actually GCHQ, although some of the other – I mean, remember, we saw months ago, it wasn’t Greenwald’s story but it was at Huffington Post where they talked about collecting data on people perceived as enemies of the United States but not terrorists, although they were kind of radical Muslims, they had kind of tangential ties to terrorists, but the NSA was collecting this information to discredit these people. You know, we’re going to find out how much porn they view on line, now we know they can do it via their webcam; we’re going to find out what kind of speaking fees they’re getting; we’re going to find – you know. So we’ve seen that in operation already at the NSA, and what the story that Glenn did kind of shows in more detail is the degree to which – I mean, they’re basically throwing lots of social science at it, they’re throwing old spy techniques, and they’re bringing it all online.

And I think this has been clear for quite some time that, you know, Twitter especially – and how many people do you interact with on Twitter who are clearly, you know, paid shills or moles or what have you and people who are trying to cyberinstigate, right, and they’re trying to sow dissension among the left or among the libertarians or among what have you, and so we’ve seen that for quite some time.

It’s not like NSA sets up a neat network and CIA does it. NSA is doing it itself.

And I think what that document showed is the behind the scenes, the confirmation that behind the scenes they are doing this, that, and – and that it’s no longer – it’s not like NSA sets up a neat network and CIA does it. NSA is doing it itself. So this notion that – and I think that’s one of the things we’re seeing more generally is NSA, you know, once upon a time, breaks the Soviet codes and is trying to keep us safe, and as their role has become amorphous, they’re doing all this kind of freaky stuff, and, and they have access to all our personal data. Which is the really dangerous –

Scott Horton: Mmmhmm. Well, and they seem to have shown numerous ways that they’re willing to conflate just about anything with terrorism. I mean, if you participate in politics in any way other than just going and joining your local branch of the Democratic or Republican Party, then they very well may consider whatever it is that you’re doing a crime, under, you know, whatever perversion of law.

The NSA is applying this guilt by association that they adopted in the terrorism context, and frankly to a large degree in the drug war context, and they’re applying it now with new kinds of applications in hacking.

Marcy Wheeler: Right. And it’s not just terrorism, because they’re going to go after Anonymous, after people deemed to be hackers, and there’s a lot of people – Jeremy Hammond – there’s a lot of people on the borders of hacking culture who play a very different role, and they’ve already been prosecuted and you have to wonder to what degree was NSA involved in collecting the data, to what degree is NSA involved in sowing dissent in Anonymous. You know, we’ve seen that they do go after Anonymous. Even if you agree that Anonymous should be thrown in jail tomorrow, there’s a lot of legal behavior that gets dubbed as Anonymous as well, and, you know, the NSA is applying this guilt by association that they adopted in the terrorism context, and frankly to a large degree in the drug war context, and they’re applying it now with new kinds of applications in hacking.

I think it’s particularly – I mean, I don’t want to say hacking’s worse because white people – you know, it’s almost like more white people are going to be affected when they start going after hackers than when they’re going after Muslim terrorism or the drug war because the white people in the drug war, you know, never get prosecuted. But I also think there’s another dangerous side to it because it’s so much – it’s not necessarily so much [20:18 __] than a lot of the Muslims they’re going after, but it can be.

And so we’re seeing this morph, and it’s morphing at the same time as the NSA just continues to collect all this data about all of us, and we never know at what point sometime in the future stuff we do now is going to be deemed illegal and therefore, you know, the networks that we have now are going to criminalize us.

Scott Horton: Mmmhmm. Yeah, boy, two or three hops can mean just about anything, right? I mean, jeez, if you know Steve Clemons, then you know a guy who knows a guy who once met with Osama bin Laden himself.

Marcy Wheeler: Yeah. Exactly. Or, you know, I can’t count the number of ways I’m two degrees away from Edward Snowden now, who, you know, is a subject of a spy investigation and therefore – and Bart Gellman has said that he was told that his phone records were collected using a national security letter. So, you know, you get swept up there pretty easily. I’ve never talked to Edward Snowden, I’ve never, you know, I – but I’m still going to get sucked up into this dragnet, I’m sure, and probably –

Scott Horton: Well, don’t be afraid, you’re doing the right thing. But the point is, if you were, you know, X, Y or Z other journalist too or anybody else, that they’ve got no right to do that to you, you know? Not whatsoever, to ever try to criminalize what it is you’re doing for straight-up Benjamin Franklin work, First Amendment work here.

Now, and you know what’s funny too is I always hear these conspiracy theorists saying, “Aw, the whole Edward Snowden thing is a modified limited hangout, because all he’s doing is proving that every suspicion we ever had about these guys in our most fevered nightmares was true, and so therefore, aw, we already knew all this.” No, what’s he doing, I mean he’s really putting – here’s the slide about how they fracture your political movement.

“Identifying and exploiting fracture points.” Let’s make a little flowchart of how to list the things people disagree about, how to rank them in priority of importance, and then how to make, you know, them mad at each other and no longer cooperate. Here it is right here in PowerPoint for you, your worst conspiracy theories about what the state has in store for you in this so-called democracy, right here in pastels, in living color.

Marcy Wheeler: And at that level, I mean, you know, we talk – we being the royal we – talk a lot about American constitutional guarantees and what have you, but at that level I really think that’s where a lot of Americans miss the impact of this, which is that the U.S. is the hegemon. It is the most powerful country in the world; it is the richest country in the world, although, you know, with shoddy finances; it is structurally the best situated country to spy in the world, and it’s not just our distance. It’s not just our political organizations that they are going to go in and corrupt. It’s the opposition, the legitimate opposition to U.S. power in other countries – in Mexico, in Venezuela, in, you know, France. And do we, you know, do we really want the NSA to be doing what the CIA could do in a much more limited fashion, and always botched anyway, and do it all online and poison the international online community in doing so? And that’s I think the other question that really needs to be asked.

SH: But, yeah, the people of Germany? They have a right to be secure in their persons, houses, papers and effects too, and they should not have to live under the tyranny of the American panopticon just because they’re not from here. It ain’t fair. It’s wrong.

Scott Horton: Right. Yeah, it does, you’re right, it gets lost in what they’re doing to the Americans, which they always try to argue is technically legal even though they’re obviously stretching the definition of collect and relevant and imminent and whatever other word they want to destroy, but clearly it’s all unconstitutional, un-American behavior and it’s affecting us and we’re the Americans and so that’s the part that we pick on the most. And for me it’s really annoying to hear them making such a scandal about tapping Angela Merkel. Screw her, she doesn’t have any rights, she’s the head of a state, I’m not worried about her. But, yeah, the people of Germany? They have a right to be secure in their persons, houses, papers and effects too, and they should not have to live under the tyranny of the American panopticon just because they’re not from here. It ain’t fair. It’s wrong.

Marcy Wheeler: Yeah, and then you know the notion that James Clapper can decide globally what the legitimate bounds of dissent to U.S. power is is terrifying, because, you know, the guy has a tin ear, he doesn’t even understand American politics, from everything I can see, much less, you know – I don’t know.

Scott Horton: Yeah, no, you’re clearly right. I mean, he was the hack pushing the Saddam’s chemical weapons are in Syria line back then. He may have even believed it, he’s so dumb. I believe he believed it. Stupid lie. Anyway, thank you so much for your time, Marcy. It’s great to talk to you as always.

Marcy Wheeler: Great to talk to you.

Scott Horton: I appreciate it very much. That’s Marcy Wheeler, everybody, emptywheel.net. Read that blog all day every day.

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