Vindication for Snowden? Obama Panel Backs Major Curbs on NSA Surveillance, Phone Record Data Mining

JUAN GONZÁLEZ: A White House panel has proposed a series of curbs on some key National Security Agency surveillance operations following the leaks by former NSA contractor Edward Snowden. The panel recommended the NSA halt its bulk collection of billions of American phone call records. The panel’s report said, quote, “In our view, the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy, and civil liberty.” The panel also said the mass collection of the phone records, quote, “was not essential” to preventing any terrorist attack. But the panel did not call for an end to the collection of the phone records. Instead, it said, those records should be held by telecommunications providers or a private third party.

AMY GOODMAN: The report was released just two days after a federal judge ruled the bulk collection of telephone data by the government was “almost Orwellian.” The NSA review panel also criticized the agency’s attacks on encryption and use of computer programming flaws to mount cyber-attacks.

On Wednesday, White House Press Secretary Jay Carney said some of the outside panel’s recommendations could be accepted, others studied further, and some rejected.

PRESS SECRETARY JAY CARNEY: Over the next several weeks, we will be reviewing the review group’s report and its 46 recommendations as we consider the path forward, including sorting through which recommendations we will implement, which might require further study, and which we will choose not to pursue. It’s a substantive, lengthy report, and it merits serious review and assessment. When we finish the internal review, the overall internal review in January, the president will deliver remarks to outline the outcomes of our work.

AMY GOODMAN: We’re joined now by two guests. Kirk Wiebe worked at the National Security Agency for more than 32 years. He received the NSA’s second-highest award, the Meritorious Civilian Service Award. Also with us is Ben Wizner, Edward Snowden’s legal adviser and director of the ACLU’s Speech, Privacy, and Technology Project.

Ben, let’s begin with you. Your response to the panel’s recommendations?

BEN WIZNER: You know, my first thought yesterday was, I wonder if even Time magazine now realizes that they should have chosen Edward Snowden as the “Person of the Year”? What a week this has been to vindicate the act of conscience that he engaged in—first a conservative federal judge saying that the NSA’s sweeping domestic intelligence program violates the Constitution, then what we expected to be a whitewash executive branch report coming back with these really incredible recommendations for a sweeping overhaul. None of this would have happened but for what Snowden did. And we shouldn’t believe a word that the government says when they say that these programs would have been reviewed anyway in the ordinary course.

JUAN GONZÁLEZ: But in the report itself and some of the recommendations, what’s your initial reaction?

BEN WIZNER: Well, look, I’ll be candid. People in the civil liberties community were sharpening our knives. We were waiting for this to be a sort of cover-up, cosmetic reform. But in fact, you know, I saw an email this morning from a colleague saying that she was gobsmacked by how far this goes. Now, the question will be how much of it the White House recommends and how much of it Congress legislates. But huge changes on the NSA’s technological surveillance, as Amy said in the lead in, limits on their undermining of encryption, on using backdoors, and an end to one of the most dangerous programs, which is the NSA sitting on a database of every single one of Americans’ phone calls—if these reforms are passed, they’ll be the most sweeping reforms in four decades.

AMY GOODMAN: But this is an advisory panel to President Obama, so what does it mean to say “if they are passed”?

BEN WIZNER: Well, look, it plants a flag. This isn’t just an advisory panel. This is comprised of a high-level former CIA official, of a high-level counterterrorism official, and some of Obama’s closest friends. So, the fact that this is where the debate begins in the administration is extremely significant.

AMY GOODMAN: You spoke to Edward Snowden yesterday. What was his response?

BEN WIZNER: You know, we were not in contact after the report came out, but I will say that he has been so gratified by the decision by the judge a couple of days ago. That was his main hope. You know, he had watched, over the last decade, as challenges to surveillance programs brought by the ACLU and others were thrown out by courts, not because the courts said the programs were legal, but because the courts said that we had no right to be there, because we couldn’t demonstrate that our plaintiffs were victims of these surveillance practices, and therefore we didn’t have standing. That all changed when Edward Snowden gave Glenn Greenwald and Laura Poitras in order from the Foreign Intelligence Surveillance Court that demonstrated that the ACLU and everyone else has their phone records swept up every day by the NSA. So he was hoping that precisely this kind of thing would happen, that it would be debated by a real and open court.

JUAN GONZÁLEZ: We’re also joined by Kirk Wiebe, who worked at the NSA for 32 years. Your reaction both to the court—the federal court decision earlier this week and now to the recommendations of the panel?

KIRK WIEBE: Hi, good morning.

My reaction is one of caution. I’m optimistic. But remember, this is a self-serving executive report, and although it does recommend significant steps, whatever happens, we have to put teeth into the mouth of oversight. You know, we’ve been operating for years and years on a wink, a nod and a handshake and assurances that nothing’s wrong. And we keep getting to the wrong. NSA has been caught now, what, three or four times, historically, spying on Americans. Does anyone really believe it’s not going to happen again, because of the reports—the recommendations of this panel? No. We need to have substantive oversight by both Congress and the courts.

And when I say “substantive,” I don’t mean a handshake. I’m talking about wires, computer access to these sensitive databases, audit procedures that account for every data access by an analyst—or anyone, for that matter, whether it be a Snowden or anyone else. There needs to be an audit process that has high integrity, that is comprehensive and that people at Congress and/or the judiciary, whether it be FISA or some other court—there needs to be a small group of people, technologically astute, with clearances, but they work for an opposing branch of government. Otherwise, we’re going to find ourselves back here again in about 10 years.

AMY GOODMAN: The NSA review group was critical of the administration’s defense that the agency’s data-gathering efforts have helped thwart terrorist attacks. It wrote, quote, “Our review suggests [that] the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders. Moreover, there is reason for caution about the view that the program is efficacious in alleviating concern about possible terrorist connections, given the fact that the meta-data captured by the program covers only a portion of the records of only a few telephone service providers.” Ben Wizner, translate that into English. Explain Section 215 and what this means.

BEN WIZNER: Well, Section 215 was always a controversial section of the PATRIOT Act. It was what we used to refer to as the “library records provision,” because it allowed the government, basically just on a relevance standard, meaning almost anything, to get any records from third parties. But having said that, none of our worst fears about this even approached what the government was actually doing. The government was using Section 215 of the PATRIOT Act to require every telephone company in the United States, on a daily basis, to turn over every record of every phone call. So, essentially, they were sitting on this enormous map of every American’s communications, and they were doing this with one order a year from the FISA court, just one order saying that this would be relevant.

And their argument for relevance was, “Well, someone’s going to do something wrong at some point, and we need to have the whole database to search it.” In other words, we need to have a whole haystack, because one day someone’s going to drop a needle into it. And it really turns the Fourth Amendment upside down. The law should require the government to have suspicion first and search second. This essentially said we’ll collect it all first, and maybe we’ll need it later. And it was a justification for more than just this. It would be a justification for flying a drone over every city at all times or for putting cameras even in our own homes.

So what this panel says is, number one, there’s no evidence that this was useful for stopping terrorist attacks and that you couldn’t have done it in a more narrow way; and, number two, there is a danger in having the government sit on this pile of information, because if there is a terrorist attack in the future, if there is a war in the future, the rules that prevent the government from going into that and using it for any purpose could easily be swept aside.

AMY GOODMAN: We’re going to break and then come back to this discussion. Our guest is Ben Wizner. He is the legal adviser to Edward Snowden, who remains in Russia, where he’s been granted temporary asylum for one year. We want to ask about his letter to Brazil asking for permanent asylum there. And we’re also joined by Kirk Wiebe, who worked at the NSA for 22 years—32 years, and want to hear his own story of being a whistleblower. What are the protections for intelligence whistleblowers? Do they have any? This is Democracy Now!, democracynow.org, The War and Peace Report. We’ll be back in a minute.

[break]

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González. Our guests are Ben Wizner, who is Edward Snowden’s legal adviser, an ACLU attorney, head of the ACLU’s Speech, Privacy, and Technology Project. And we’re joined by Kirk Wiebe. He worked at the National Security Agency for 32 years and became a whistleblower around issues of privacy. Juan?

JUAN GONZÁLEZ: Well, Kirk Wiebe, I wanted to ask you about this whole issue of the recommendation of the report that all this metadata be allowed to be stored by the telecommunications companies. Just because they can, should the telecommunications companies continue to store this massive metadata of the activities of millions of Americans?

KIRK WIEBE: You know, it’s a good question, Juan, because the answer to that is highly dependent on NSA’s ability to do its job, in terms of the mix of IT software, servers and things that it uses, to do the analytic job on big data. There can be a huge difference. If that process is optimal, it should be able to do its job in a matter of minutes, certainly hours, not days or weeks. And so, when you ask about, well, how long should that candidate pile of data sit there, to give a buffer, act as a buffer, if you will, it is affected by how well NSA and how efficiently it’s doing his job.

Now, I don’t have firsthand knowledge about that efficiency, but I would tell you, having offered a highly efficient process over a decade ago that was tossed aside for General Hayden’s Trailblazer, which was ultimately a failure in 2005—I can tell you, from looking at some of the view graphs that Snowden has put out there, my gut at this point says there are efficiencies to be gained. In other words, I think we de facto have a situation where how well or not NSA’s approach to big data analysis affects the law. Obviously, the NSA will lobby for longer buffering if it thinks it’s not as efficient as it otherwise would if it were more efficient.

AMY GOODMAN: I—

KIRK WIEBE: So—

AMY GOODMAN: I wanted to turn to Glenn Greenwald himself, who testified by Skype, did not actually go to the European Union, but spoke there from Brazil. He testified before the European Union, emphasizing the NSA’s interest in metadata.

GLENN GREENWALD: Collecting metadata is the supreme priority of the agency, not because it protects people’s privacy, but precisely because it enables the NSA to invade people’s privacy more effectively than the interception of content. And I think sometimes it’s difficult to understand that in the abstract, but it’s easy to understand it when concrete examples are used.

And so, if you can imagine, for example, a woman who decides that she wants to get an abortion. If you’re listening in on her phone call, what you will hear is her calling the clinic. The clinic will answer with a generic-sounding name, like Eastside Clinic or something like that. You will hear the woman who you’ve decided to target for surveillance ask for an appointment Tuesday at 2:00, get an appointment Tuesday at 2:00, and then hang up the phone. And you’ll have no idea why she called or even what kind of clinic she called or what the purpose was. But if you’re collecting her metadata, you will see the phone number that she called. You will then be able to identify it as an abortion clinic. You will know how many times she called that clinic. And you will have exactly the information that you wouldn’t get if you were simply listening to her phone call.

AMY GOODMAN: Ben Wizner, the significance of this, and the assurances that President Obama has continually given—we just have the metadata; we’re not actually listening?

BEN WIZNER: Well, I think Kirk Wiebe will probably be a better expert on this than I would. But I hear from law enforcement and intelligence officials that they prefer metadata, not just for the reasons that Glenn Greenwald just explained, how revealing it is in an individual case, but because they can use their powerful analytic tools. They can mine metadata in a way that they really can’t content. People can disguise what they’re talking about when they’re having conversations with each other, but metadata doesn’t lie. Metadata says who contacted who, when and for how long.