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Kirk Wiebe says the Senate is not challenging the authority that allows bulk collection of phone records

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JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore. June 1st marks the expiration of Section 215 of the Patriot act. That’s the section that allows the NSA to collect the phone records of millions of Americans who have never been suspected of a crime. Last week the House passed the bill called the USA Freedom Act. In it would require the NSA to get a warrant when it wants to access phone records. And now the bill is in the Senate, with some Democrats and Republicans saying the reforms don’t go far enough. On Wednesday to protest the renewal of the Patriot Act, Republican senator Rand Paul gave an almost 11-hour speech on the Senate floor. Now joining us to get into all of this is Kirk Wiebe. Kirk is a former NSA official and whistleblower. Thanks for joining us, Kirk. KIRK WIEBE, FORMER NSA SENIOR INTELLIGENCE ANALYST: Jessica, it’s good to be with you again. DESVARIEUX: So Kirk, let’s quickly discuss the USA Freedom Act. What does it fail to address? WEIBE: I hate to call it a shell game. It doesn’t address a lot. Let me begin with the fact that there are different authorities under which NSA can collect information. One is the Patriot Act, the one that you hear the most about. What you don’t hear a lot are executive order 12333, issued by the President of the United States, which gives the NSA very [inaud.] [powers] under the right circumstances to [inaud.] the collection [inaud.] either against Americans or foreigners. The other thing that we haven’t heard a lot about, but because of Snowden we know something about, and that is the FISA Amendment Act of 2008, Section 702. Which, you remember some of the names, the titles of some of the Snowden slides. We had something called Upstream, which is live collection, real-time collection, from digital lines all over the world. And we have something called PRISM, which is business records such as Yahoo, such as Twitter, you name it. All the big names. So USA Freedom does not address either of those two, which grant vast authorities to NSA to bulk collect. DESVARIEUX: Let’s talk about the other news of the day, Rand Paul making a lot of headlines today. What exactly was he arguing for on the Senate floor? WIEBE: He was trying to bring to bear the logic of the unconstitutionality of what’s happened to us under the new privileges granted the NSA since the events of 9/11. It’s as if the 4th Amendment to the Constitution, and arguably a few others, but we’ll focus on the 4th Amendment, which is supposed to grant all of us privacy. Our constitutional right. So all of this is being undermined by the decision of a few lawmakers. Not most of Congress, just a handful of people, really, in the Department of Justice under Bush, made this decision. The issue never went to the Supreme Court, so they never got a vote, or ruling. And though it’s slowly working its way in that direction, it’s taking a very long time. Remember, all of this began in 2001 in one form or another, and here we are today in 2015, and we still don’t have this important issue in front of the court. So Rand Paul was trying to draw parallels–for example, I’ll give you what I think was one of his best parallels during his filibuster. And that is equating the pervasiveness, the vast sweeping up of all our electronic communications and emanations, as if the government’s putting a soldier in all of our homes to spy on us, or a policeman. Now, I say that because King George III, when this nation was just a group of colonies before we became the United States, King George III put out an edict to station a soldier in the homes of colonists. In colonial times. This is the straw that broke the donkey’s back in terms of ginning up a desire to rebel and eventually fight the war for independence from Britain. DESVARIEUX: So Kirk, what is Rand Paul’s alternative? What bill has he presented, what does he see as being the solution here? WIEBE: He actually did not offer a bill. What he said is, let’s at least talk about it. Let’s at least have the debate that was never had when all of these things were passed in secrecy, in a dark room, in the middle of the night without any input from the citizens of this country. DESVARIEUX: So what would you argue? What needs to change in order for there to be real reform? WIEBE: There are, the way I see it, two alternatives. We can continue to let NSA collect all the metadata of people. Innocent, guilty, whatever. But must encrypt and protect the data associated with innocents from review or inspection by any human being. Now, that’s doable technically. You encrypt it, you have it, and why is that good? Well, let’s say a terrorist, you know about one guy in Phoenix, Arizona. But you don’t know who his colleagues are. And so you have a known, you’ve shown the court that this guy’s identity should be shown, because you have probable cause. Maybe you’ve got some, intercepted a phone call, who knows, that talked about this guy. The evidence was clearly to reveal his identity. Now, let’s say he calls another American phone number. That number’s protected in terms of not revealing any identifying data about the person that owns the phone number, or the email address, or whatever it is. A Twitter account. So now we have to establish probable cause. If we don’t have that innocent person’s number in the database, or readily available, it will take a few seconds longer, or maybe minutes, to get that data from the telephone company who would have it under the USA Freedom Act. But I would simply let the NSA go ahead and collect it. But I wouldn’t let the NSA encrypt it. I would have it encrypted by the judiciary and the key to unlock the encryption belongs to the judiciary, so that NSA can have it lifted only when it demonstrates probable cause. DESVARIEUX: Just quickly explain to us what that encryption would actually do. WIEBE: It would actually make nonsense out of any data associated with an innocent person. Name, address, phone number, whatever. Now, you might say, well then how does the IT process work if a known bad guy calls that person? Well, the computer will know who that number belongs to. But the analyst doesn’t. Nobody does. Only the computer knows. And you can’t get it without the key to unlock the identifying data. So if you imagine connect the dots diagram, where I have a known bad guy, a circle, a node that’s red, and I have a line drawn to an innocent dot, let’s make it green for all intents and purposes. So we have a red talking to a green. Now, let’s say a judge says, if a red persistently talks to a green, maybe two or three phone calls over a seven day period, that’s reasonable suspicion. That’s probable cause. And I will automatically allow that data to be revealed to an analyst. So we bring the Constitution into the analysis, the intelligence analysis process, Jessica. We don’t bypass it. We don’t throw it out the window. This is all doable with today’s IT technology. DESVARIEUX: All right. Kirk, I’m going to also present another argument, because you’re going to have some people that would say if you expect the United States to be the world’s policeman and intervene in conflicts all over the world, that you’re going to have to start getting rid of some of your privacy, because you have all these enemies all over the world. And if you want to be the world hegemon, privacy might be the price you have to pay to maintain that empire. So at the end of the day, reforming the NSA system, these encryptions, these type of solutions don’t really get at the real issue, which is our foreign policy, and that’s what we should be examining. What do you make of that argument? WIEBE: Well, I would actually agree with that premise. Because it is NSA’s job, and always has been, to produce foreign intelligence. Those people, foreigners, do not enjoy privacy rights under our constitution. It is only U.S. citizens that do. Now, one could argue that in the name of getting along with the rest of the world, maybe the world court would like to enjoy that same benefit. That’s a matter of discussion for Congress and the global leaders to discuss whether we do that or not. But right now, there’s no law that covers the rights of those citizens. So we absolutely have already had access to all the foreign data we want. DESVARIEUX: All right. Kirk Wiebe, thank you so much for joining us. WIEBE: Jessica, it’s my pleasure. DESVARIEUX: And thank you for joining us on The Real News Network.


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