NSA Metadata Collection Reined in by the House
Former NSA Senior Intelligence Analyst, J. Kirk Wiebe says the original USA Freedom Act after the Snowden disclosures was much better than what is being considered today.
SHARMINI PERIES, EXEC. PRODUCER, TRNN: It’s The Real News Network. I’m Sharmini Peries coming to you from Baltimore.
On Thursday a federal appeals court panel ruled that the National Security Agency’s bulk collection of metadata of foreign calls to and from Americans is not authorized by Section 215 of the U.S. Patriot Act, throwing out the government’s legal justification for the surveillance program exposed by NSA whistleblower Edward Snowden nearly two years ago. Now the U.S. House of Representatives have voted to end the NSA’s collection of bulk telephone metadata, but the Republican-led Senate is expected to oppose the House bill. If a bill to renew the Patriot Act is not passed by both houses by June 1st deadline, the program will automatically expire.
Now joining me to clarify what is at stake is Kirk Wiebe. J. Kirk Wiebe is a former NSA senior intelligence analyst and NSA whistleblower who worked with the NSA for more than 32 years, and was awarded the agency’s second-highest award, which is the Meritorious Civilian civil service award. He retired from the NSA in October, 2001 along with his fellow NSA whistleblowers Bill Binney and Ed Loomis.
As always, thank you so much for joining us, Kirk.
J. KIRK WIEBE, FMR. NSA SENIOR INTELLIGENCE ANALYST: It’s a pleasure to be with you, Sharmini.
PERIES: So Kirk, let’s begin by unpacking what all of this means. I mean, it took me quite a bit to get my head around it and I’m not sure I actually have. So why did the House vote against this bill, and why is Senate expected to oppose it?
WIEBE: Well, first of all, do not feel badly about not having your head quite around all of this. That’s what ails most Americans, and it’s purposeful. No one wants you to understand the technical processes behind bulk collection and the reasons for it, as claimed by the NSA and others. Which I don’t think are entirely truthful, because Bill Binney and I, and others who have had many years’ experience at NSA, know that it’s entirely possible to collect data against probable bad guys and find bad guys and instead of collecting the data about all of the innocent people around the globe, let alone American citizens.
But what we’re really voting on is whether or not the Patriot Act and its sister legislation such as the FISA Amendments Act of 2008, and other bits of legislation which come together to give NSA this bulk collection capability, key pieces of it go away. They lose effect on June 1st if Congress does not act.
So we’ve had a tussle, an argument going on, in both houses of Congress between certain groups and factions of different political persuasions. There’s a group that believes we should rubber stamp what NSA wants. There’s a group that says no, that’s too extreme. We need to get in line a bit more with the constitution, so we should change a few things. And that’s the U.S.A. Freedom Act, which is being voted on in both houses today. And then there’s the group that says we shouldn’t be doing any of this that we’ve imposed since 9/11. We should go back to the rules that served us well when the Church committee back in 1970s put constraints against NSA that were designed to prevent the illegal listening to or spying on, if you will, American citizens.
So that’s kind of the, the political layout. Now, I do not know exactly how the vote will go. If the House votes for this new U.S.A. Freedom Act, and the Senate ratifies it, also votes the same way, the question is, well, what changes? And what changes fundamentally is very little. The original U.S.A. Freedom Act that was worked on after the Snowden disclosures was actually quite a bit better than the one that Congress is considering today.
The politicians always play with the words, they water things down, it’s harder to belly up to the bar for them to do the right thing. And so there have been a lot of political pressures that have gotten us to where we are today. And here’s where that is. It says that the NSA may no longer collect everything. It must collect only out to two hops.
Now, I use this language, hops, to try to paint a concept wherein, let’s say you, Sharmini, are a suspect in a crime. By holding NSA collection to two hops, I can collect your communications, and I can collect the communications of the people you talk to directly. But I can also collect out one more step. One more hop, if you will, and collect the communications of the people you talk to directly. So if you talk to your sister, I can collect her communications. If you talk to the Maryland Department of Motor Vehicles, I can collect your communications and I can collect the Department of Motor Vehicles’ communications.
Now, here’s the problem. When you talk to the Maryland DMV, or the DMV of any state, or let’s make it even better. What if you called the IRS for tax help? I now can collect your communications and the communications of the IRS. Now, so you can see, the IRS is not just one person. The Department of Motor Vehicles is not just one person. It’s thousands, hundreds of thousands, maybe even millions of people. So NSA has this legal way out from ending, really, bulk collection, by going out two hops.
PERIES: Kirk, why does the NSA want all this data? I mean, it’s been reported that there’s so much data there’s very little they can actually do with it. Why do they want to collect all this data?
WIEBE: Yeah. That’s an excellent question. I personally do not believe it is NSA driving the need to collect everything. It’s really the law enforcement community that wants it. The FBI, local, state law enforcement authorities. You’ve read numerous articles no doubt, Sharmini, about the police pulling someone over for a traffic violation. They see he has a cell phone. They take the cell phone and they actually download all your contact information and data. And they do this with impunity. And the legal branch of the United States government, along with the people of the United States, say wait a minute. Wait a minute. What authorizes you to take what you want from me? Police are with impunity downloading all of our information and taking it and claiming it’s legal, that metadata has no right to privacy.
Now, well, when did this happen? I mean, it is a distorted view of legal history. We all know that no one is allowed to take your snail mail and just indiscriminately open it up because you’ve got laying on the seat of–you’ve got it lying on the seat of your car next to you on the way to the post office. That law is absurd. Why wouldn’t it be the same with a phone call or an email, or a tweet, whatever you meant not to be public. Things you do mean to be public, but much of what you say you don’t mean to be public.
So most people believe this is a distortion in the law. But until the court shuts it down, as the Second District Court as you mentioned at the beginning, the lead-in to the show, has ruled, we need to get this discussed in the courts and up to the Supreme Court, if necessary, and shut down this kind of legal interpretation because it flies against our 4th Amendment rights as citizens in these United States.
So the FBI is driving it. Now you say, why do they want it? Because it’s easy pickings. If they can read everything they want to about everybody they can–makes their job easier. They say they can find crime easier. They can prove crime. Unfortunately when they collect these things without your knowledge it again invades your privacy rights. To the point where right now, a lot of people don’t realize this, Sharmini. The United States government is taking people to court based on data intercepted by NSA made available to other agencies such as the Drug Enforcement Agency or the FBI.
They then, because they know it’s illegal, are contriving old-fashioned investigative stories about the old gumshoe investigator who goes out and talks to friends of the suspect and gets data, and puts a case together. They’re actually putting that in writing to make the court believe it’s old-fashioned detective work that found this information out about somebody when in fact it came from the illegal viewing of private information collected by NSA.
There’s a term for this, it’s called parallel construction, and it denies everyone their rights in a court of law. This is, should be, shocking to every American citizen.
PERIES: Now Kirk, on the other hand, if I may be the devil’s advocate here. Particularly after 9/11 people have more tolerance for this kind of invasion in our lives, because we think we are secure because of it. Now tell us, are there other ways of monitoring our, or other ways of doing intelligence, to make us more secure?
WIEBE: Yes. Yes. There are. And I don’t talk about this lightly or too abstractly. Bill Binney and I as analysts with NSA have direct experience in analyzing bulk data, or large amounts of data, I should say. Big data is the way the technology industries talk about it.
It is eminently doable without sacrificing anyone’s privacy to collect all the metadata, all the content of everyone if you need to, although I wouldn’t want to do that, and protect the innocent from those who are truly suspects in a crime or suspected of carrying out terrorism. And it’s done by ensuring that we recognize the difference between American citizens, because of the laws we operate under, and foreigners. That’s one distinction. Some people say we ought to also protect the lives of innocent foreigners, and I don’t have a problem with that. Because as you mentioned, Sharmini, you can’t look at everything. It’s literally impossible to do.
So you have to use your intelligence, analysts, manpower wisely. Otherwise you will miss things like we’ve missed. The Boston marathon. The underwear bomber. The Times Square bomber. The Fort Hood massacre. Charlie Hebdo in France, and people–so wait a minute, Charlie Hebdo’s in France. It’s not in the United States. People forget the NSA’s primary mission is not the United States activities, that’s the FBI. NSA is charged to produce foreign intelligence. In other words, what goes on in France with terrorism is of primary concern to NSA, and a failure in France or London or Paris or Germany is a failure on the back of the NSA.
Even though they have partners helping, they’re all part of the same corporate effort to protect us all. And they’re not getting it done, and they’re doing bulk collection. So I would submit to you it’s smart only to collect that which you suspect is really associated with a crime or terrorism. Don’t make the haystack bigger so it’s harder to find the bad guys.
The other truth is it’s simple to protect privacy by encrypting innocent people’s information so that no analyst can open it up and look at it, whether by accident or on purpose, or if a guy wants to see what his ex-girlfriend is doing these days. He can’t do it, because it’s protected by sophisticated encryption so he can’t read it. And so that what you would do is if someone unknown to you were to be suspected of collaborating with a bad guy, you would gather your metadata information only. Not the name, not the person’s private information, but just the metadata to show the relationship between this unknown person in the United States in contact multiple times, for example with a known terrorist, say in United Arab Emirates. And taking that and showing it to a court. And that could be done in seconds, by the way, not hours or days. And showing it to a court to get permission to unveil the identifying information of the until now innocent person.
So in other words, we actually use the constitutional process we were all given by the founders of the country. Probable cause shown to a court of law. Not this blanket okaying of bulk collection of innocent people.
PERIES: Kirk Wiebe, former senior NSA intelligence analyst. Thank you so much for joining us today and shedding so much light on this complicated issue we’re dealing with.
WIEBE: My pleasure, Sharmini.
PERIES: And thank you for joining us on The Real News Network.
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