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In the wonky weeds with Marcy - more on Obama's spy speech, three days later

transcriber's picture

Nicole Sandler: I find this fascinating, yet it is very – wonky is not the word, but it’s so in the weeds. I know, Marcy Wheeler, you’re so good at reading through this stuff, but to the average person – and I’d say I’m not even the average person, I’m probably more informed than most, I know I’m intelligent, but a lot of this stuff, I mean, you know, my eyes sort of roll back in my head and ...

Amen!

I'm still playing podcast catch-up. After Obama's speech last Friday and Marcy's review on The Scott Horton Show (my prior transcript), Marcy did The Nicole Sandler Show on Monday. Way wonky, but kinda wonderful too, or wonderlandful, if you follow:

Marcy Wheeler: And so they’re trying to kind of develop this Panopticon within U.S. networks. And that’s the solution they want to come up with to defend our networks, rather than, by the way, increasing encryption and security and everything like that. And the reason they don’t want to do that is because it makes their spying harder. So it’s this circular issue, and I think it’s a dangerous circular issue because basically the NSA is making us less safe with what it’s doing with encryption, and then having made us less safe, it’s insisting that it needs to be able to police U.S. networks in a more intrusive fashion because it’s made us less safe.

Got that? Or, cutting to the chase:

Marcy Wheeler: We're not done learning... President Obama tried to end it, tried to close down discussion on Friday; we’re not done yet.
Nicole Sandler: No. I don’t think discussion will be closed as long as they, you know, can’t silence people like you... Information really is power, isn’t it?
Marcy Wheeler: Yep, it is.

Podcast here -- Marcy's segment, about a half an hour, starts at around 32:00. Transcript below the fold.

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Nicole Sandler interviews Marcy Wheeler on Obama’s spy speech
The Nicole Sandler Show
January 20, 2014

Transcript

"Questioning authority daily, The Nicole Sandler Show on radioornot.com."

Nicole Sandler: All right. We are back. Let’s get Marcy Wheeler on the line, shall we? Marcy of course blogs at emptywheel.net, and again she is one of my favorite authorities on all things national security, and again I wanted to get her take on what the president said after his speech on the NSA on Friday. And here she is, Marcy Wheeler. Good morning.

Marcy Wheeler: How are you?

Nicole Sandler: I’m good, how are you?

Marcy Wheeler: I’m doing all right.

Nicole Sandler: Good. Now I know, you know, Friday afternoon, as I was explaining to the listeners, I tried to unplug. I listened to a little bit of the president’s speech. I, you know, as is often the case, when he speaks – and not only him, but most politicians, they sort of talk in circles and then you’ve got to go back and read the speech and try to figure out exactly what he said. Thankfully I was able to go to emptywheel.net and not try to listen to the, you know, the pundits on any of the cable news channels, and I particularly appreciate your annotated version of the president’s speech. So thank you for that.

Marcy Wheeler: Thank you.

Nicole Sandler: And for those who either didn’t listen – because I know a lot of my listeners, the regulars anyway, are just so fed up with him and, you know, the whole mess surrounding Edward Snowden. So for those who didn’t listen or haven’t been to emptywheel.net yet, in a nutshell, what did the president say on Friday?

Marcy Wheeler: He thinks that it is important for the U.S. not to abuse its superior NSA technology, but he’s changing almost nothing.

Nicole Sandler: Alrighty then. I don’t know that I expected anything different. Now didn’t he say something about the blanket surveillance, you know, the metadata collected under Section 215, that has to stop?

Marcy Wheeler: No. What he said is, a) immediately they’re going to start only going two hops out instead of three. It’s already the policy of NSA to only go two hops out without superior approval, so that effectively says we’re going to do what we’re already doing.

He says that to query the database – and this won’t happen immediately, but to query the database they need to get judicial approval. And it’s not clear how much that amounts to. In his language, Obama hasn’t even promised particularized review. In a background call before the speech, some senior administration official said, “Oh yeah, that’s an individualized query,” but again nothing that the president said publicly said it was an individualized query, and the SAO seemed to have some confusion about actually what happens with this program because it’s an ongoing alert. So in other words, for particular numbers, they get flagged if there are certain kinds of activity on the number, and so when they say there were only 288 queries in 2012, what they mean is there were only 288 numbers they were querying on but they were likely effectively querying on it every day.

He punted a few things to Congress, and one of them was bulk data, that you know basically the providers don’t want to hold it, the government shouldn’t hold it, so they’re going to go back and forth. And ultimately what’s going to happen is we’re going to have a stalemate in Congress until the Patriot Act expires next year and then Congress will have to do something.

And probably – I mean, the most optimistic interpretation of what’s going to happen is what happened in 2009, which is that the FISA court just every quarter when they reapprove this will approve a list of numbers that are in an appendix and anything that gets added to the appendix will be approved that way. I’m not sure that it really adds all that much review. But they’re still going to keep the bulk data. He says we don’t want to hold the bulk data – he punted a few things to Congress, and one of them was this, that you know basically the providers don’t want to hold it, the government shouldn’t hold it, so they’re going to go back and forth. And ultimately what’s going to happen is we’re going to have a stalemate in Congress until the Patriot Act expires next year, 2015, in June, and then Congress will have to do something. So I suspect that’s sort of what’s going to happen.

But that means they still can do these backdoor searches for foreign intelligence, for criminal investigations, for playing around with their data to see what else they can do to it. They’re still going be able to keep this data or to search this data for threats to property, which I think is not just cybersecurity related but also intellectual property.

But the other important thing is he wants that to be in the hands of the attorney general and director of national intelligence James Clapper, who’s a liar.

But some of the other cha– one of the most important other changes that Obama promised, there’s something called backdoor searches. They collect a great deal of information and with it that includes a significant amount of U.S. person data, and the FBI since 2008 has been able to go in and search for American identifiers and find out if they’re in there. In 2011 both the NSA and CIA were given that authority as well, and the president said that the government can no– there will need to be some additional service, some additional review, before the government can use that information in criminal cases. But that means they still can do these backdoor searches for foreign intelligence, for criminal investigations, for – they do a lot of this stuff, technical analysis, which to some degree is kind of playing around with their data to see what else they can do to it. That’s still permitted. They’re still going be able to permit to keep this data or to search this data for threats to property, which, you know, I think is not just cybersecurity related but also intellectual property. So it’s very limited. But the other important thing is he wants that to be in the hands of the attorney general and director of national intelligence James Clapper, who’s a liar.

Nicole Sandler: Yeah. Right.

Marcy Wheeler: And there’s no enforcement mechanism then. Particularly given – and it was interesting that he did this on criminal cases, because the solicitor general basically forced DOJ to start admitting where a lot of their leads and investigations came from, and so they’re already going to have to do this, and they’re already going to have to admit to how much, you know – they’re already struggling with what they’re going to do with these backdoor searches, and so to some degree, again, it was another reform that DOJ is probably already having to do anyway because of the requirement to actually start telling criminal defendants where the cases against them came from. So it’s a lot of smoke and mirrors, frankly.

Nicole Sandler: Wow. We’re speaking with Marcy Wheeler, emptywheel.net. As you can tell just from this, the first question, it’s a complicated issue. You know, there’s one other thing that I heard, if I heard it correctly and if I understand it correctly – and, you know, look, you’re the expert here; I’m just someone who says, you know, this whole program sucks (laughs), One is, right now, if – and they’re getting all this data without any court order, but the FISA court is still in effect, the Foreign Intelligence Surveillance Act Court, right, where it’s a secret court where when they want information from someone, they go and they present their case, and then there’s nobody basically arguing the other side, like of the person who they want to surveil. There’s nobody in their corner saying, “Wait a minute, here’s why you should not grant this subpoena.” Didn’t he say that will change now? They will have an advocate for the other side in court? Is that a big deal?

Marcy Wheeler: He sort of punted on that as well. He said, you know, they should work with Congress to figure out how to make that work. He could today say, you know, punt it to Congress, figure out a way to make it work, but we will ensure that an amicus is brought in for any novel kind of interpretation. He didn’t do that.

And again I think we’re going to get bogged down into discussions of – I think the most workable suggestion that I heard was that these advocates should live at PCLOB, which is the Privacy and Civil Liberties Oversight Board, which is, they’re appointed by the president but approved by Congress and they’ve got some independence and some mandate to represent the privacy and civil liberties interests of the American people, so it’s a great place for them.

The former presiding judge of the FISA court doesn't want advocates because the government would have to write down their requests. I mean that’s essentially what he was saying. Which ought to make people scream and pull their hair out, because if that’s in fact the case, then defendants down the road can never challenge this because the record behind their wiretap may be a) not subpoenable, and b) a moving target.

But you know they’re going to get into lots of Constitutional debates, and the former presiding judge of the FISA court, John Bates, kind of came in and said, “No, no, we don’t want any advocate because,” among other reasons, he said, “we sometimes get informal requests from the federal government.” And the implication is those formal requests get written down by the FISA court staffer, and he said, “Well, you know, ethically we can’t share the FISA court staffer’s documentation with the advocate.” But that sort of tells you that the FISA court, you know, the former presiding judge of the FISA court doesn’t want advocates because the government would have to write down their requests. I mean that’s essentially what he was saying.

Nicole Sandler: Oh my God.

But Judge Bates also said, you know, “Sometimes these facts change.” It’s like, well, no. Facts don’t change. That should raise some alarm bells about what DOJ is doing as well.

Marcy Wheeler: Which ought to make people scream and pull their hair out, because if that’s in fact the case, no wonder – you know, then defendants down the road can never challenge this because the record behind their wiretap or what have you may be a) not subpoenable, because it’s a court record not a Department of Justice record, and b) it may be a moving target. But Judge Bates also said, you know, “Sometimes these facts change.” It’s like, well, no. Facts don’t change. Your understanding of facts may change, but that shouldn’t be – you know, that should kind of raise some alarm bells about what DOJ is doing as well.

Nicole Sandler: This is all really complicated. I guess perhaps the most disturbing thing, or what people should consider really disturbing, is what you said that basically the only thing Obama did was punt to Congress on a couple of big issues. Well, this Congress? That can’t do anything except name a post office? They’re going to – ? You know, why doesn’t he step up and, you know, be the president?

Look, Dianne Feinstein, Mike Rogers, Michael Hayden, James Clapper, they’re all doing victory laps right now. So, you know, your question presumes that President Obama actually wanted to change.

Marcy Wheeler: Look, I mean Dianne Feinstein, Mike Rogers, Michael Hayden, James Clapper, they’re all doing victory laps right now. So, you know, your question presumes that President Obama actually wanted to change.

Nicole Sandler: Mmhmm.

Marcy Wheeler: And I think in the end he ultimately ceded on almost every major issue to the national security state.

Nicole Sandler: Ay. Wow. Now all of this, you know, we know that none of this dragnet that they put out, this blanket surveillance of Americans, has thwarted even one terrorist attack, right? I mean, if this was, you know, a system that actually would work, wouldn’t they have, oh, maybe been able to thwart the Boston Marathon bombing?

Marcy Wheeler: Well, a couple things about that. One is, keep in mind that that’s true just of the phone dragnet.

Nicole Sandler: Right.

Marcy Wheeler: It’s not true of Section 702, which is the bulk collection, which has been a lot more significant. Even people like Wyden and Udall say that.

Nicole Sandler: Really. Okay.

Marcy Wheeler: Yeah, they both say 702 is very useful. And it makes sense, because that’s basically accessing the content of anybody who uses Google.

Nicole Sandler: Oh my God.

Marcy Wheeler: And there are legitimate reasons why the government might need to access people’s gmail if they’re plotting attack, right?

Nicole Sandler: Right.

Marcy Wheeler: So the other thing is that I think the administration has tried to describe the use of the phone dragnet in very limited terms because that way they don’t have to talk about the other purposes that the dragnet serves.

From the very beginning the government told the FISA court that this also was going to serve for them to find informants who can work for the FBI. And that’s not finding a terrorist plot, it’s finding somebody who the FBI can coerce to become an informant. And that to me is a pretty terrifying application of this.

So just as an example, from the very beginning the government told the FISA court that this also was going to serve for them to find informants who can work for the FBI. And that’s not finding a terrorist plot, it’s finding somebody who within a particular network is well situated, and possibly since they’re using the metadata, compromised in such a way that the FBI can coerce somebody to become an informant. And that to me is a pretty terrifying application of this, because, you know, the metadata may show who is having an illicit affair or may show who has immigration challenges or what have you, and those are precisely the kind of thing that we know FBI has used to coerce people to become informants, so that’s another use of the dragnet.

James Clapper has said that the dragnet basically serves as an index to find which content they actually want to use. And so that’s another use that may entail a lot more Americans being surveilled, their content being surveilled, either just to see whether they’re interesting or in an ongoing basis that doesn’t involve plots to the FBI at all. And we have no visibility on it and I don’t think the FISA court has any visibility on it. I’m not even sure Congress has any visibility on it.

Another use is that the – and even James Clapper has said this, that the dragnet basically serves as an index to find which content they actually want to use. So it may be that they’re collecting every conversation from a particular area in Somalia. They don’t – they have something like five Somali interpreters, and to pick and choose which of those conversations they’re going to go to the trouble of translating, they use the phone dragnet, and they say, “Oh, this looks interesting.” And they may do this without ever getting outside of the NSA. So in other words, they may say, “This is an interesting conve–” And I suspect this is how they found the one taxi driver that they’ve actually busted using the phone dragnet. They said, “This is an interesting conversation,” they translated it, and then used the translation of U.S. person content to go back – I mean this is speculation but there’s a lot of public documents to support this – go to the FISA court and use this backdoor data on U.S. persons to then get a warrant on U.S. person. And so that’s another use that may entail a lot more Americans being surveilled, their content being surveilled, either just to see whether they’re interesting or in an ongoing basis that doesn’t involve plots to the FBI at all. It involves foreign intelligence collection. And we have no visibility on it and I don’t think the FISA court has any visibility on it. I’m not even sure Congress has any visibility on it.

So these are the purposes of the phone dragnet that nobody is talking about, and I think that’s why Mike Rogers and Dianne Feinstein are so eager to keep this and why we’re all mystified because we look at it and correctly say, “No attack has been thwarted through the use of this phone dragnet.”

So these are the purposes of the phone dragnet that nobody is talking about, and I think that’s why, you know, Mike Rogers and Dianne Feinstein are so eager to keep this and why we’re all mystified because we look at it and correctly say, “No attack has been thwarted through the use of this phone dragnet.”

Nicole Sandler: Right. In fact – we’re speaking with Marcy Wheeler, emptywheel.net, and here’s just, here’s a little bit of – they were both, Dianne Feinstein, who chairs the Senate Intelligence Committee, and Mike Rogers of Michigan, who chairs the House Intelligence Committee, they were on Meet –

Marcy Wheeler: Oh, don’t blame him on me.

Nicole Sandler: I’m sorry. But, you know, you live in Michigan, what can I say? They were both on Meet the Press yesterday, and here’s a little bit just of Dianne Feinstein with, uh – just listen.

DAVID GREGORY: Do you agree with Chairman Rogers that he may have had help from the Russians?

DIANNE FEINSTEIN: He may well have. We don’t know at this stage. But I think to glorify this act is really to set sort of a new level of dishonor. Ad this goes to where this metadata goes. Because the NSA are professionals. They are limited in number [NS: Wait!] to 22 [NS: What?] who have access to the data. Two of them are supervisors. They are vetted. They are carefully supervised. The data goes anywhere else, how do you provide that level of supervision?

DAVID GREGORY: Is it critical then to get to the bottom, and will you investigate who might have been involved and whether there was any link to the Russians?

MIKE ROGERS: Absolutely. And that investigation is ongoing.

DIANNE FEINSTEIN: Absolutely. Absolutely.

MIKE ROGERS: Sure.

Nicole Sandler: Really, 22 people? At the NSA have access? What the hell is she talking about?

Marcy Wheeler: What she’s talking about is the people who can actually query the database. And it’s actually, I don’t think it’s 22 people, I think it’s 125 people.

Nicole Sandler: Wow.

Marcy Wheeler: Only 22 people can approve what’s called RAS, the reasonable articulable suspicion, for these people. So in other words, if I’m an analyst and I say, “Wow, this phone number sort of looks really interesting, I’d like to contact chain on that,” I have to go to a supervisor, one of 22 people, and get it approved before I can start contact chaining on your number. But what’s misleading about what she said is that as soon as I’ve contact chained your number, right, and found everyone who’s two degrees out from you, then that gets dumped into what’s called the corporate store and anybody from the NSA can access that.

Nicole Sandler: Lovely. Now, Marcy Wheeler, was anything said about the giant storage facility in Utah? I know the president said, well, first they wanted the telecoms to just keep the information and they all said, “Pff, we don’t want it.” You know, the phone companies. “We don’t want to keep it, that’s not us.” Meanwhile, this huge compound was built in Utah to store all this shit, right? That’s up and running, yes? And, you know, if the president says, “Well, maybe we shouldn’t be the ones to, you know, to store all the information,” well then where is he suggesting it go?

Marcy Wheeler: Well, it’s not clear whether the phone dragnet data is in Utah. You know, they collect a lot of content and leave it there on a shelf for somebody to decide using these dragnet metadata to go find out what they want.

And then one of the very interesting things that came out in documents from Friday, which I’ve got up on my site today, is they forgot to redact one mention, and in the kind of master order which covers all of the providers who provide data, there is a reference that didn’t get redacted that refers to just Verizon. And so it’s possible all of this comes from Verizon, which is crazy and I’m still trying to figure out what that means.

 

But one of the things that – I mean, just as an example, one of the things that goes on with this data which should terrify all of you is that before any contact chaining happens, what are called data integrity analysts go and fuss with it. And they have access to your and my data without any over– you know, with actually far less oversight than the queries have, and they pull out certain numbers. So they pull out Verizon’s phone voice mail number, which we all use to get our messages. They pull out pizza joints. They pull out telemarketers. Because if those things remain in the data then the data is meaningless, because then we’re all – this researcher at Stanford showed that 300 people who have no connection immediately become connected, every single one of them, just through that voice mailbox on a second hop. And so you can see that that would make the data completely useless, and so they have to pull it out. But one of the things that they’re intimating is you can’t have Verizon do that because that would mean they’re sifting through all of this data to go find the pizza joints of America, and so that’s – but the point is, nobody should be doing that.

Nicole Sandler: No.

Marcy Wheeler: Right? The point is that, you know, and I’ve argued – you know, you raised the Boston Marathon and President Obama kind of alluded to, well, we used this dragnet for peace of mind to make sure nobody in, um – that this wasn’t a bigger plot, that the Boston Marathon attack wasn’t a bigger plot. Well, the NSA is not among the agencies that’s reviewing why they didn’t find the brothers. So we don’t know – so they’re not even looking, they’re not even asking a question of themselves why they didn’t find it. But more importantly I just told you that they pull out pizza joints, and there’s a pizza joint that plays very heavily both in the night of the car chase, they threw out some of their materials there, and in the 2011 murder that they think at least Tamarlan if not both brothers may have been involved in.

Nicole Sandler: Right.

Marcy Wheeler: So if they pulled out that pizza joint, then their data becomes completely meaningless, because that pizza joint, to my mind, looks like one of the most interesting leads.

Nicole Sandler: Huh.

Marcy Wheeler: And you wouldn’t have then –

Nicole Sandler: Right.

Marcy Wheeler: – all of the other potential people in the pizza joint who could be, you know, the pizza joint could be a mob front, for example, and we would never know because the NSA has pulled out that data and nobody is asking the NSA to review why they didn’t find the brothers.

Nicole Sandler: Wow. You know, I find this fascinating, yet it is very – wonky is not the word, but it’s so in the weeds. I know, Marcy Wheeler, you’re so good at reading through this stuff, but to the average person – and I’d say I’m not even the average person, I’m probably more informed than most, I know I’m intelligent, but a lot of this stuff, I mean, you know, my eyes sort of roll back in my head and it’s almost like, all right, you know, when I get overwhelmed with things I tend to just – I can’t deal with any of it. So there’s so much stuff going on here, the average person can’t grok it, so I think most people are just then, you know, they’ll weigh in on Edward Snowden, you know, rather than look at you know, the reason we’re talking about all this stuff, the reason that review group even existed, the reason President Obama spoke on Friday, the reason there are going to be revisions or changes, if there are any, all comes from the fact that Edward Snowden saw this shit going on, thought it shouldn’t, his conscience got the best of him, he started pulling information and then he gave it to a couple of journalists, and, you know, and here we are. Did the president invoke Snowden in his speech on Friday, and if so, what did he say?

Marcy Wheeler: Yeah, he actually named Snowden directly, and – although the national security types who are doing their victory lap are kind of saying uh oh, he wasn’t critical enough of Snowden. And he actually said in his speech that this debate will make us stronger, so I say, well, gosh, don’t we have Edward Snowden to thank for that? But, you know, but again he’s not actually debating it. He’s punting it. He’s trying to close off discussion. That Russian plot garbage the Mike Rogers rolled out yesterday –

Nicole Sandler: Right.

To the extent this can all become about Edward Snowden and not the new disclosures that are going to come out tomorrow and the next day, then it avoids them having to talk about it, but it also makes it a lot easier for them to then attack Edward Snowden, discredit Edward Snowden with these kind of bogus Russian plot ideas.

Marcy Wheeler: – I mean, which has actually been there all along. You know, they’ve been waiting to use this attack on him for a long time, and you know there’s no basis, there’s no evidence that there’s any basis in fact about it. You know, I think that there is a question of what kind of access the Russians have, since he’s lived there, they’re not going to sit on this, you know, they’re not going to sit on an opportunity to try to steal the data, and I recognize that, but it is an attempt just, as you said, I mean, to the extent this can all become about Edward Snowden and not the new disclosures that are going to come out tomorrow and the next day, then it avoids them having to talk about it, but it also makes it a lot easier for them to say, you know, to then attack Edward Snowden, discredit Edward Snowden with these kind of bogus FSB plot ideas. So, I mean that’s really what’s going on and there’s this concerted effort to declare an end to the NSA story with the president’s speech on Friday and I think that’s why Rogers and DiFi rolled out that kind of propaganda on Sunday.

Nicole Sandler: Wow. Yeah, the whole thing about, you know, the Russians could have been behind all this, I mean is just all nonsense and I guess maybe to further muddy the water, as I said, this goes over the heads of I want to say the vast majority of Americans who would rather, you know, fight over is Snowden a traitor or a hero? Right? I go with the hero side because if he hadn’t divulged these secrets, we wouldn’t be having these conversations now. But the bottom line is, so now we know it, right? We know what’s going on. And as we are learning, probably nothing is going to change. And so, you know, Marcy – Marcy Wheeler is with us, emtpywheel.net is where you’ll find her and amazing writings on all of this – you mentioned the other. We’re talking so much about the phone data, that’s what Section 215 is based on, but you mentioned the internet surveillance. And yes, Google knows what we’re doing, when we’re doing it, where we’re doing it, how often we’re doing it, and more, right, but you’re saying this has thwarted some plots. I mean, should we be content knowing that our every move on line is going to be monitored?

Where some of these disclosures are going to go is we’re going to learn more and more about the massive collection overseas which the president is doing under the authority of an executive order, not FISA, except that I think that it may actually be in violation of FISA because they’re collecting U.S. person data in addition. And they don’t want to talk about that, they don’t want to talk about that at all.

Marcy Wheeler: No. And what we’ve – I mean, we’re not done learning, first of all, because what we are learning, where some of these disclosures are going to go is we’re going to learn more and more about the massive collection overseas which the president is doing under the authority of an executive order, not FISA, except that I think that it may actually be in violation of FISA because they’re collecting U.S. person data in addition. And they don’t want to talk about that, they don’t want to talk about that at all, and frankly even Dianne Feinstein has admitted she doesn’t know everything about that. So.

But I guess the point is, there are details, for example, in what we know about how they’ve gotten to Tor users, which is encryption and anonymity online. And we know that if they need to get somebody that they know to be a Tor user, they are successful in finding a way of doing it, not by breaking Tor but by getting to their devices in some other fashion. And that’s targeted. And the reason it’s targeted is because Tor makes it very difficult to do this in bulk. And one of the things that I think Google, for example, is already doing, and probably better than most of the other providers, is making it a lot more difficult for the government to do anything but come to them under FISA and ask for the data rather than, as we know happened, going overseas and stealing it from Google’s own cables overseas. But then in addition I think the NSA has proven to be successful when it engages in targeted spying. They don’t need to do this bulk.

Nicole Sandler: Right!

Partly more of it is serving not a counterterrorism function but a cybersecurity function, which by the way means that a lot more of it is domestic surveillance because what they’re doing is wandering the networks inside the United States and looking for hackers, whether they be Chinese or, you know, MIT students or what have you.

Marcy Wheeler: And one of the reasons they’re doing this bulk is, you know, there’s like partly a neurosis about we can’t miss anything, although as you pointed out they missed the Marathon bomber, and partly more of it is serving not a counterterrorism function but a cybersecurity function. Which by the way means that a lot more of it is domestic surveillance because what they’re doing is wandering the networks inside the United States and looking for hackers, whether they be Chinese or, you know, MIT students or what have you.

Nicole Sandler: Right.

Marcy Wheeler: And so they’re trying to kind of develop this Panopticon within U.S. networks. And that’s the solution they want to come up with to defend our networks, rather than, by the way, increasing encryption and security and everything like that. And the reason they don’t want to do that is because it makes their spying harder. So it’s this circular issue, and I think it’s a dangerous circular issue because basically the NSA is making us less safe with what it’s doing with encryption, and then having made us less safe, it’s insisting that it needs to be able to police U.S. networks in a more intrusive fashion because it’s made us less safe.

NS: So the Reader’s Digest version is, nothing’s going to change, the president’s sending it all back to Congress, who’s not going to do anything, so what we have is what we have.

MW: Well, I think, nobody really knows what’s going to happen in Congress, and I think there are some interesting people who are cranky in Congress.

Nicole Sandler: (laughs) Lovely! All right. So it really is doublespeak, because it goes in circles. So the Reader’s Digest version is, nothing’s going to change, the president’s sending it all back to Congress, who’s not going to do anything, so what we have is what we have.

Marcy Wheeler: Well, I think, nobody really knows what’s going to happen in Congress, and I think there are some interesting people who are cranky in Congress, and I think that while John Boehner seems intent on preventing any real vote – because, you know, he got really embarrassed last year with Amash-Conyers, so he’s going to try and prevent any vote. SJC is a funny place to kill bills, and some key Republicans, like Jeff Flake, who should be in favor of the reforms for this, are strangely absent. But you don’t know what Congress is going to do, and I think Congress is angry about – I mean, just as an example, there are at least hints that they are using the same authority that they get the phone dragnet from to collect gun purchase information. And the NRA has actually gotten involved in one of the lawsuits against the dragnet. And I think there are Republicans who are angry and I wouldn’t be surprised if they’re angry in part because they see this not just as an infringement of the Fourth Amendment but also the Second Amendment. And if that’s true, plus they can make a big stink out of it with Obama, then you actually might see some change happen.

But, you know, right now Dianne Feinstein and Mike Rogers are really intent on turning Edward Snowden into being an FSB spy so that it makes it harder for Congress to do that work, and so we have to continue fighting. I think we’ll see what happens in the courts. I think we’re going to continue to find more data – even the stuff they released Friday which, you know, I think it’s a lot of details but I’m finding some crazy stuff in there, so I think it’ll be – we’re not done yet.

Nicole Sandler: Okay.

Marcy Wheeler: President Obama tried to end it, tried to close down discussion on Friday; we’re not done yet.

Nicole Sandler: No. I don’t think discussion will be closed as long as they, you know, can’t silence people like you, and that’s why I encourage everyone, go over to emptywheel.net, read, be informed, because, you know, as we’re seeing on both sides, information really is power, isn’t it?

Marcy Wheeler: Yep, it is.

Nicole Sandler: Marcy Wheeler, on the Twitter is @emptywheel, website is emptywheel.net. Thank you so much. Always appreciate your insights.

Marcy Wheeler: So good to be on. Thanks, Nicole.

Nicole Sandler: All right. I’ll talk to you later. Bye-bye.

There you have it. You know, look. I am, again, it’s like when I start talking economics, my eyes tend to roll back in my head. I just know that, you know, once DC gains power, I don’t care who enacts it – in this case, you know, the surveillance state really began in force in this instance under the Bush administration; it has only expanded under the Obama administration, despite, despite everything he said. So, yeah. You know, it’s that proverbial slippery slope.

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