Guest Host: Steve Roberts

According to documents declassified yesterday, in 2011 the Foreign Intelligence Surveillance Court ruled a data collection method then being used by NSA was unconstitutional. It was a process that failed to specifically exclude thousands of emails and other electronic communications between Americans in this country. The opinion is the latest in a series of new details that shed light on the NSA’s massive surveillance operations — an ongoing effort that can monitor an estimated 75 percent of the nation’s Internet communications.

Guests

  • Marc Rotenberg executive director of the Electronic Privacy Information Center and teaches Information Privacy Law at Georgetown University Law Center.
  • Tim Edgar visiting fellow at Watson Institute for International Affairs at Brown University and former director of privacy and civil liberties for the White House national security staff.
  • Siobhan Gorman intelligence correspondent at The Wall Street Journal.

Transcript

  • 10:06:56

    MR. STEVE ROBERTSThanks so much for joining us. I'm Steve Roberts of George Washington University sitting in today for Diane Rehm. Diane is getting a voice treatment and then taking some vacation. She will be back in the middle of September. New details are emerging about NSA Web monitoring activities. It's estimated that the agency has the capability to monitor about 75 percent of the nation's email and other electronic communications.

  • 10:07:19

    MR. STEVE ROBERTSAlso, documents declassified yesterday indicate agency agents in 2011 were unlawfully gathering thousands of domestic communications. Joining me to talk about NSA operations, Siobhan Gorman of The Wall Street Journal, Marc Rotenberg of the Electronic Privacy Information Center and on the phone from member station WESO in Geneva, N.Y., Tim Edgar. He's a visiting fellow at the Watson Institute for International Affairs at Brown University. Welcome to you all. Thanks for being with us.

  • 10:07:52

    MS. SIOBHAN GORMANGood morning.

  • 10:07:53

    MR. MARC ROTENBERGGlad to be with you.

  • 10:07:54

    MR. TIM EDGARThank you.

  • 10:07:55

    ROBERTSYou can join our conversation, our listeners, at 1-800-433-8850. And, of course, as always, email, drshow@wamu.org. We're on Facebook, Twitter. Join the conversation. And I want to start with you, Marc. What did we learn yesterday about this court opinion from 2011 declassified and really some very striking language?

  • 10:08:22

    ROTENBERGWell, we've learned that for a period of at least three years the National Security Agency collected the email communications of people within the United States in violation not only of the Foreign Intelligence Surveillance Act but apparently also the Fourth Amendment. Those were the conclusions reached by Judge John Bates who was the chief judge of the FISA court in 2011 when this opinion was issued.

  • 10:08:48

    ROTENBERGAnd it's an extraordinary legal document. We've been told over the last several weeks by many people, including the president, that there are effective means of oversight, that there have not been abuses. And we read today in this 86-page opinion that in fact a great deal of the email surveillance that took place in this country very recently most certainly was unlawful.

  • 10:09:12

    ROBERTSAnd, Tim Edgar, what was the point of law that was violated? What is the -- what does the law say, and what did the NSA do in violation of that law?

  • 10:09:25

    EDGARYeah. Well, so the law requires that the NSA focus its communications activities at a foreign target for the most part, and sometimes, there are incidents that involve over-collection. And what that means is that the technical means that the NSA is using to collect emails or other communications don't work the way they expected them to or the way they described it to court.

  • 10:09:51

    EDGARAnd when that happens, you know, the NSA has a compliance system in place that involves self-reporting by analysts and technicians and anyone who works in the fort actually to track that and then report it to the oversight bodies that they have to report to, including the FISA court. So that's what happened in that particular case.

  • 10:10:12

    EDGARIt was an important and very serious case, as Marc says, but I guess I would argue that that's an example of the system functioning exactly the way it was intended to with the court taking it very seriously, saying these communications were collected unlawfully, and you need to change your systems to make sure it doesn't happen again and continue to report to us.

  • 10:10:36

    ROBERTSAnd, Siobhan, from your reporting, are you being told that in fact these violations had been corrected, that the system has been tightened and changed so that no longer violating these rights and laws that Marc is talking about?

  • 10:10:49

    GORMANThe system has been changed, but what's really interesting about it is that because the technology has essentially evolved to a point where foreign and purely domestic communications are physically bundled together and can't be separated. NSA is still collecting these communications. However, they've come up with new way to segregate communications that are most likely to include some of these purely domestic communications, and they're handled now very differently from how they were before. But they still do get received by NSA.

  • 10:11:25

    ROBERTSAnd, Marc, you mentioned Judge Bates, and there's been a lot of talk about the FISA court, this secret court that actually predates 9/11. It's been around a long time. We know very little about it. Most of their opinions had been classified. We've had a rare glimpse into the way it really works by the declassification decision.

  • 10:11:44

    ROBERTSOne of the things I was struck by was how harsh the language was of Judge Bates. In several cases, he really accused the government of deception, misrepresentation, saying three different times the government had come back and not told him the full story. Talk about what we've learned about this court and its relationship to the NSA from this opinion.

  • 10:12:09

    ROTENBERGAll right. Well, I agree with your point, Steve. I've been following the activities of the FISA court for more than 20 years. And typically, what we get each year is a one-page letter that's addressed to the Senate president and the House leadership that describes the number of applications sought by the government and the number approved. And the numbers are typically the same, which is why over the years people have described the FISA court as a rubberstamp.

  • 10:12:35

    ROTENBERGAnd yet, we see this opinion and the last opinion like this that I can recall was actually pre-9/11 when the FISA court was very concerned of then-Attorney General Ashcroft was using the FISA law in ways that people felt were not appropriate. And he was rebuked at the time in a published opinion that became available from the court. This opinion by Judge Bates I think actually goes quite a bit further because it suggests that the NSA surveillance activities have gone much farther than the FISA court itself anticipated.

  • 10:13:05

    ROTENBERGNow, it's an interesting question at this point whether we can be satisfied by the changes that were made. Clearly, they -- the government has to respond to the order of the FISA court, but we still don't have the type of independent and public auditing and reporting that allow you as a journalist or me as a privacy expert to be able to assess if in fact the government is doing what's it's supposed to be doing.

  • 10:13:25

    ROBERTSRight. And one of the -- Tim Edgar, another moment in recent days where we've had an insight into this court is a statement from Judge Walton who also had -- has been on the FISA court in which he told The Washington Post that basically the system is so large and the amount of data collected is so vast that the court really is very limited in its ability to do what. Talk about the significance of Judge Walton's comments.

  • 10:13:51

    EDGARWell, I think that's a fair point, and it gets to the issue of this hybrid system of oversight that we've created really uniquely in the entire world where we involve our courts in overseeing large intelligence collection activities of our intelligence agencies. No other country in the world does this. They just let the executive, the intelligence agencies do it themselves. And we have attempted to put in place checks and balances in our system which are a little bit different than what you would expect in a normal court process where you're overseeing particular search warrants and particular orders.

  • 10:14:28

    EDGARThe NSA's activities are very large. They published a fact sheet recently that disclosed that they collect 1.7 percent of the total Internet traffic of the entire world. And, you know, obviously, 1.7 percent is they were trying to make that the point that that's a relatively small fraction, but it is obviously an enormous amount of data.

  • 10:14:48

    EDGARAnd that's one of the reasons why it's just difficult when you're trying to describe these activities to a court to have a system -- especially when you're doing it in a way that involves many different lawyers and analysts to always do it in a way that's completely accurate. And as a result, you end up with incidents. Marc described one of the earlier ones, and then this one was Judge Bates where the court gets very angry correctly so when they feel that they haven't been given the right information.

  • 10:15:21

    ROBERTSNow, Siobhan, yesterday, in The Wall Street Journal, you published a front-page story with one of your colleagues describing another dimension of this whole system where through relationships with Internet carriers, telecom companies in your report that the NSA has access to 75 percent I think was the figure you used of Internet traffic. Give us a concise summary of what you discovered and what is new about this report that you did.

  • 10:15:51

    GORMANSure. And I actually in my report tried to avoid using the word access because that touches a sensitive nerve with the government that what NSA has done is enter into a series of relationships with telecommunications carriers and that system covers 75 percent of U.S. telecommunications because, you know, Verizon has its portion. AT&T has its portion. But it's a multistep filtering process.

  • 10:16:19

    GORMANAnd so what NSA has effectively done is outsource the first step of filtering to the telecommunications companies. So it will say we're looking for this type of data. It fits within these sort of parameters. Send us streams of data where this information we're looking for foreign intelligence information is most likely to be. And so then the telecommunications company will copy and send streams of data to NSA. From there, they will pick out the pieces that they feel are most responsive to their foreign intelligence needs.

  • 10:16:49

    ROBERTSWhat did we know before? Was it just simply the scope?

  • 10:16:54

    GORMANIt was the scope. It was -- and also the fact that this is actually how the filtration process works. What certainly wasn't clear to me before I entered on that particular reporting endeavor was exactly how NSA was interfacing with the telecommunications...

  • 10:17:10

    ROBERTSRight.

  • 10:17:10

    GORMAN...companies. And the fact that, you know, they are outsourcing a fair amount of this to the telecommunications companies but they -- that the companies also are required by the court to give NSA everything it asks for.

  • 10:17:23

    ROBERTSOne of the things that came through in your report, Siobhan, was the increasingly blurry line between domestic and foreign communications, and we've already talked about it. At the heart of this problem is really protecting the rights of Americans while also accessing material that relates to foreigners. And it -- given the nature of the international -- the global system, that line is increasingly difficult to find.

  • 10:17:49

    GORMANThat's exactly the case. And what was interesting was the court rulings that were released yesterday basically presented the most significant example certainly that I've seen of the kinds of problems that crop up in the system that we described in our Wall Street Journal story. And we made a reference, although a not very detailed one, to this particular incident in our story because the concern is that even if NSA isn't willfully looking through domestic communications, the way that they have set up the system does end up pulling in a lot of this information.

  • 10:18:24

    GORMANAnd Sen. Wyden and others have raised questions about, well, you know, once these communications are in NSA databases, they can search against them because they have been "lawfully" collected.

  • 10:18:37

    ROBERTSThat's Siobhan Gorman of The Wall Street Journal, also with me, Marc Rotenberg of the Electronic Privacy Information Center. On the phone, Tim Edgar from Brown University. I'm Steve Roberts sitting today for Diane. We're going to come back with your calls and your questions so stay with us.

  • 10:20:04

    ROBERTSWelcome back. I'm Steve Roberts, sitting in today for Diane. And our subject this hour: the National Security Agency, some new revelations published in the Wall Street Journal yesterday and also the declassification of a court opinion in 2011 that declared some of their collection methods unconstitutional.

  • 10:20:21

    ROBERTSThree experts with me: Marc Rotenberg of the Electronic Privacy Information Center, Siobhan Gorman of the Wall Street Journal, who wrote the article that we were talking about, and Tim Edgar who is a visiting fellow at the Watson Institute for International Affairs at Brown.

  • 10:20:36

    ROBERTSAnd, Tim, in Siobhan's reporting and all of the other stories, quotes from representatives at the NSA say, well, we self-police and we have systems in place to safeguard. Mistakes are going to be made. We are -- given this nature of global communications, we are going to sweep in domestic conversations and communications, but we self-police ourselves. Is that fair? Are they doing that well enough, in your view, or not?

  • 10:21:08

    EDGARTo improve, I think that the NSA, you know, is -- definitely has some work to do from that 2011 opinion and can do other things to improve its systems. They had had earlier problems and brought in, in 2009, a director of compliance, a very high-level compliance official just like some of the big banks did after the financial crisis to try to police their systems better. And that individual in his office, you know, worked together with a lot of other privacy officials throughout the government to improve that system.

  • 10:21:41

    EDGARBut yes, it can always be improved. In terms of the issue of it being self-policing, it is. But it's self-policing subject to very significant oversight and controls. The FISA court, you know, they can shut down these programs. They can refuse to renew them. They can then add additional requirements to them. Congress funds the NSA and all of its activities. It provides its authority. So yes, it is -- at the initial stage, policing by the agency itself.

  • 10:22:12

    EDGARThere's really no other institution that can go in and do the, you know, look at exactly what's going on technically to generate those reports. But once those reports are generated, they're reviewed by Congress and by the FISA court in a way that, you know, puts the fear of God into NSA leadership if they feel they're going to lose some important collection ability because they just haven't been able to get their act together.

  • 10:22:40

    ROBERTSNow, you also wrote a piece in the Wall Street Journal recently in which you made...

  • 10:22:43

    EDGARYes.

  • 10:22:44

    ROBERTS...the argument that transparency actually is in the interest of the NSA because it would raise confidence. And President Obama himself said one of his goals was to make Americans more comfortable with this system and that transparency could actually be in their interest. Do you -- are they listening to you?

  • 10:23:03

    EDGARI think they are. You know, I was actually joking with some of the NSA editors that we needed -- I'm sorry -- with the Wall Street Journal editors that we needed to get this published before they did everything I told them to do. They have been extraordinarily transparent over the past few months, declassifying many opinions that they would never have done in the past, putting out affirmatively information about how they collect communications and what the problems have been.

  • 10:23:30

    EDGARUnfortunately, they did so in response to these Snowden leaks, and my point is I think this should be a routine part of how the intelligence community does business. They shouldn't be waiting for the leakers to kind of set the agenda. They should be much more transparent about how they operate. Now, there are things they do need to keep secret, and I think one of those things is exactly which companies they are cooperating with because, you know, one point about Siobhan's piece is that 75 percent sounds like a huge number.

  • 10:24:00

    EDGARBut when you think about it, what that really means is that 25 percent is not covered. So that means if I know exactly what communications channels aren't being covered, what companies don't have arrangements with the NSA or haven't been compelled by the court to provide information, I could evade that surveillance.

  • 10:24:17

    ROBERTSYeah, good point.

  • 10:24:18

    EDGARSo that is legitimately classified. But a lot of the stuff they have been putting out had been classified in the past, and I think it's much more in the interest of the intelligence community to have that information out there...

  • 10:24:29

    ROBERTSNow...

  • 10:24:29

    EDGAR...people like Marc and others to look at and ask the tough questions.

  • 10:24:33

    ROBERTSNow, in addition, Marc, you mentioned the possibility of reforms here in addition to more transparency and more self-policing. One suggestion has been raised by Sen. Blumenthal of Connecticut and others of having a public advocate involved in the deliberations of the FISA court. Others have raised this suggestion as well. What are the possibilities for reforms here in addition to simply more transparency?

  • 10:25:02

    ROTENBERGWell, I think Sen. Blumenthal has an excellent proposal. It was recently at a hearing for the Privacy and Civil Liberties Oversight Board that a former judge of the FISC court, Judge Robertson, said, you know, the problem right now is that we only hear one side of the argument. The government comes in and says what they need to do, and we try to ask some tough questions.

  • 10:25:23

    ROTENBERGBut Judge Robertson explained, you know, judges do their work best when they get to hear both sides of the argument. And I think what Sen. Blumenthal and others have said is let's have both sides of the argument. When the government seeks new surveillance authority, you would need to make some changes to the FISC. I wanted, if I could also, to come back to a point that Tim made earlier.

  • 10:25:42

    ROTENBERGI agree with what he said about the need for greater transparency, and I am very pleased to see the opinions being published, which is something that we have pushed for for many years. But there is something that's very troubling about all this, and maybe, Tim, you could speak to this. I'm having difficulty understanding why it is that National Security Agency that's going before the FISC to get these legal authorities.

  • 10:26:04

    ROTENBERGMy understanding was that it would be a domestic intelligence agency, law enforcement agency, like the FBI through the Department of Justice National Security Division, that would seek these authorities, and the NSA would be in the background, let's say, providing technical assistance. It's almost as if the FISA has been stood on its head. This was a law recall that was passed to keep the NSA out of the interception of domestic communication. And here they are, the lead agency, directing domestic surveillance.

  • 10:26:35

    ROBERTSTim, quickly, do you have a response?

  • 10:26:38

    EDGARSure. Look, a lot of this as to do with the intermingling of the global communication system...

  • 10:26:43

    ROBERTSRight.

  • 10:26:43

    EDGAR...that Siobhan talked about. I mean, basically, you could look at it as the NSA being more involved in domestic collection of communications, targeting foreign intelligence as they always have done, but with increasing connections domestically, for example, when there are terrorist communications crossing those borders. You could also look it as, you know, hey, these are all sorts of communications and activities that in the past, NSA would have been conducting them overseas and would've had no oversight from the FISA court.

  • 10:27:18

    EDGARSo, really, it is a question of kind of a post-9/11 integration of the intelligence community. The FBI does actually have a very important role in executing these FISA court orders, but these are basically NSA programs that the FBI, you know, assist the NSA in conducting, and they are overseen by the Department of Justice National Security Division. In some ways, there's a lot of different bureaucratic entities involved.

  • 10:27:48

    ROBERTSRight.

  • 10:27:48

    EDGARAnd that can be complex. That can add to the problems I discussed earlier about the FISA court not necessarily feeling like it's getting the right information just because it, you know, different agencies are actually presenting their case before the FISA court than the ones actually doing the surveillance.

  • 10:28:06

    ROBERTSRight. Siobhan, I want to ask you kind of a larger question 'cause you cover this area. It seems to me that -- in kind of the setting of public opinion and attitude here that one of the things that we're seeing is a profound suspicions of government. I mean, there's a context here. The NSA is just one of many three-letter government agencies that the public doesn't like, the IRS, just a few.

  • 10:28:31

    GORMANExactly.

  • 10:28:32

    ROBERTSWeeks ago, we had a series. So talk about the larger context in which this debate is going on.

  • 10:28:38

    GORMANYeah. It's fascinating to me, and I must confess it caught me a bit by surprise when it -- when particularly the NSA surveillance issue gained so much currency so quickly because as someone who's covered this issue now for years, we had this debate in 2006, 2007, 2008. And then basically, Congress came in and said, yes, NSA needs to do surveillance.

  • 10:29:00

    GORMANWe're just going to put all of this under the observation of the FISA court, but it can go ahead and not -- do not just what it was doing under the Bush administration more on their surveillance program. It can do more, but it won't be warrantless anymore. We'll give them a broad FISA court warrant. And the debate was kind of done at that point for several years, and I think that...

  • 10:29:18

    ROBERTSAnd you had people like Sen. Wyden, a senator you're all talking about and no one was listening to.

  • 10:29:22

    GORMANNo one was listening. I mean, we would write stories occasionally. And so -- I mean, perhaps, to some degree, it's our fault. But, you know, the problem was that the public conversation just wasn't there anymore, and it's really fascinating to me that the timing was just -- it was this confluence of events where there has been, for the past couple of years, growing mistrust in government.

  • 10:29:43

    GORMANPlus, you had had the president, just in May, giving a speech where he talked about we need to contemplate the end of the world with al-Qaida. And so that means not just an end to drone program, which was what he was talking about in that speech, but other counterterrorism measures that have been really beefed up post-9/11 at some cost to privacy. And so I think that the -- all of these Snowden leaks just happen to come at a time where the country was suddenly ready to have this debate again.

  • 10:30:10

    ROBERTSWell, you bring up Edward Snowden, of course, a critical figure in this. We have an email from one of our listeners, Skip, who writes to us on this very subject, "Given the recent revelations, why are politicians and pundits publicly expressing to be shocked one moment and at the next calling to hang high Edward Snowden?

  • 10:30:26

    ROBERTS"These revelations would seem to justify Snowden's actions in his apparent decision that internal channels would go nowhere, and he'd best operate from out of town. Will these new exposures give Snowden a get out of jail card or at least strengthen his negotiating hand as whistleblower and prompt his critics to curb the hypocrisy?" What do you think, Marc?

  • 10:30:48

    ROTENBERGWell, I think it's important to untangle these two issues as difficult as that may be. I think there is a story about Mr. Snowden in which he is a whistleblower revealing unlawful conduct, and that's important. I think there's also a story about Mr. Snowden in which he's attempted to disclose secrets -- classified secrets of the United States that he had access to that my place the country at risk.

  • 10:31:15

    ROTENBERGThat's two different narratives about the same person. And I don't know yet, actually, which story will turn out to be true. Maybe both are but quite apart from Mr. Snowden. And it's very important to examine these documents, and in particular, one of the documents which he did release early on concerned the initial order of the FISA court that compelled Verizon to turn over all of the telephone records of its customers on a routine basis.

  • 10:31:39

    ROTENBERGAnd it's an extraordinary legal document. It's basically the cornerstone that made us all understand the telephone metadata program. It's a basis for our lawsuit at the Supreme Court. So I think the Snowden story is important. It's critical, but it's also separate, I think, from the question of the legality of these activities.

  • 10:31:58

    ROBERTSTim Edgar, in your piece in The Wall Street Journal, you called Snowden reckless. But at the same time, you seemed to agree with Marc that he also was revealing things that were worth revealing given the value you placed on transparency.

  • 10:32:14

    EDGARYes, but I think the reason I used the word reckless, and I thought about it, was because it was reckless. This was a very low-level contractor who decided to take it upon himself to reveal huge swathe of top secret documents and then rush off to China and Russia, which are hardly bastions of Internet freedom or privacy. And, you know, obviously, he has sparked a conversation, which I do think was overdue, and has revealed some things that should have been revealed.

  • 10:32:48

    EDGARBut he did so in a very reckless way, in a way that has endangered, you know, all sorts of important intelligence collection programs. My point was the government shouldn't give power to leakers to do this. They should reveal those kinds of important facts that we do need to have a public debate themselves proactively. One point...

  • 10:33:15

    ROBERTSHold on -- hold just one -- hold on just one second.

  • 10:33:17

    EDGARYeah.

  • 10:33:18

    ROBERTSI'm Steve Roberts, and you're listening to "The Diane Rehm Show." Quickly, Tim. Finish your point, please.

  • 10:33:24

    EDGARJust that, you know, the telephone metadata program was something that wasn't discussed back in 2006 to 2008, and that was a real mistake on the part of the intelligence community.

  • 10:33:36

    ROBERTSSiobhan, you had a view on Snowden as well.

  • 10:33:39

    GORMANWell, it just seems like the narrative on Snowden is actually shifting quite a bit and has shifted a lot in the last couple of weeks because we've started to see evidence -- a lot of evidence, especially, after yesterday -- that these programs aren't actually working as everybody has said that they are. And initially, the information that Snowden was putting out there was about programs where the administration could come back and say, well, these are legal, and they're overseen by Congress and the courts, and we are executing them in a very responsible way.

  • 10:34:11

    GORMANNow, what we've seen in recent weeks is that, actually, sometimes it hasn't been executed in a responsible way and sometimes in a legal way. And so I think that you do start to see then the Snowden revelations in a little bit of a different light.

  • 10:34:25

    ROBERTSAnd as Marc was saying, there are really two different narratives, Snowden personally and the substance of the material he's revealed and the conversation he sparked. Siobhan, here's another email I want you to respond to from Nick, who says, "Have any National Security Agency employees ever been punished for violating the privacy of Americans?"

  • 10:34:47

    GORMANThat's an interesting question. That actually came up on a conference call last week that we had with NSA's chief compliance officer. And he gave a partial answer where he said that, in the last decade, he could recall a couple instances where there was some sort of willful violation. However, he didn't clarify whether it was specifically of privacy or if it was of NSA policy or the law.

  • 10:35:14

    GORMANAnd a couple wasn't necessarily meaning exactly two. It was sort of a round number. This came up in the context of NSA's describing the kinds of violations that we are now learning about were not willful. And so the question came up, well, have there been willful ones? And the answer is, yes, but we don't really have any details?

  • 10:35:34

    ROBERTSAnd this is key to the NSA's defense, this question of willfulness, right? They can see there have been rather vast violations, but their continued position is this was not deliberate. It was not conscious. It was just built into a very large system that mistakes were going to happen.

  • 10:35:52

    GORMANRight. And that's a critical component also of their backing of this kind of self-policed system because what we have seen with the self-police system is it works to a degree. It does uncover some things, but sometimes it could take years for it to be uncovered by the NSA simply because they don't realize it's going on.

  • 10:36:11

    ROTENBERGWell, to be precise on this point, I mean, Judge Bates was quite clear in his 2011 opinion that the NSA had repeatedly misrepresented to the court the scope...

  • 10:36:22

    ROBERTSThat was the word he used: misrepresented.

  • 10:36:24

    GORMANRight.

  • 10:36:24

    ROTENBERGRepeatedly misrepresented the scope of its collection activities to the court. Now that's clearly willful, and I think that partially explains the nature of the opinion.

  • 10:36:34

    ROBERTSAlso, there's been talk from Sen. Wyden about revising the law, Section 702, which gives -- is the basic legal justification, Siobhan. Any talk you hear on the Hill of a serious thought about revising this statute?

  • 10:36:54

    GORMANWell, I think that we're starting to see it. Only in the last couple of weeks, I think, have people gained an appreciation for the potency of the surveillance done under that particular statute. I mean, tapping into the Internet backbone and being able to filter information out of that is a very powerful surveillance tool. And Sen. Wyden has now been pushing for a few years to require that the NSA have an individualized warrant if it's going to search its databases in places where it could be bumping into Americans, and the intelligence agencies have strongly resisted that.

  • 10:37:28

    ROBERTSThat's Siobhan Gorman of The Wall Street Journal. Marc Rotenberg of the Electronic Privacy Information Center and Tim Edgar from Brown University have been with me. We're going to come back with your phone calls, so stay right with us. I'm Steve Roberts, sitting in today for Diane.

  • 10:40:04

    ROBERTSWelcome back. I'm Steve Roberts, sitting in today for Diane. Our subject this hour: the National Security Agency, the ongoing story fuelled this week by several revelations, the Wall Street Journal reporting that the connections with American telecom companies gave NSA access to 75 percent of these communications.

  • 10:40:22

    ROBERTSThe author of that story, Siobhan Gorman, is with us this morning, also Marc Rotenberg of the Electronic Privacy Information Center and Tim Edgar, who is a visiting fellow at the Watson Institute for International Affairs at Brown University. And we're going to turn to our callers now, and I'm going to start with Bill in Waldorf, Md. Welcome. You're on "The Diane Rehm Show," Bill.

  • 10:40:46

    BILLHi, good morning. My question is -- well, first I want to make a statement. One of the things you said was Snowden, you know, right or wrong, but he certainly got the attention of the nation. He got everybody's attention on what's going on. And I have yet to hear any comments from anybody about investigating the administrators of NSA because this stuff does not happen automatically. There had to be permission for these people to go and lie to the judges about what they wanted and then just -- we're going to police ourselves, which doesn't seem to be working very well.

  • 10:41:23

    ROBERTSWell, Bill, I'm glad you asked that question because just before we came back on the air, Marc was talking about the several court suits that speak to this very issue. Marc, please.

  • 10:41:33

    ROTENBERGWell, our organization, EPIC, has actually filed a petition with the Supreme Court. We do think the telephone metadata program, the collection of call records of all Americans exceeded the Section 215 of the Patriot Act, which is the authority that the administration cited in support of that program. We've got a hundred law professors behind us. The government has said they will reply to our petition, and we may get a decision later this year from the court.

  • 10:41:59

    ROTENBERGBut I would say also, I think what's happening now -- and the caller makes a very important point -- there have been, without question, this summer in Washington, many closed-door meetings on Capitol Hill where people have been saying, you know, to folks at the NSA, what was going on, why didn't you tell us, what was the scope of those activities. I think, increasingly, those discussions will take place this fall on the public.

  • 10:42:22

    ROTENBERGYou'll see hearings in the Senate and in the House and you'll hear Mr. Clapper and others, Mr. Alexander -- Gen. Alexander come before congressional committees and answer some of these tough questions, which they need to do. I mean, that's how oversight is supposed to work. It has to work in public.

  • 10:42:36

    ROBERTSBut of course, Tim Edgar, as you have written in the Wall Street Journal, one of the conundrums here has been that so much of these conversations are blocked. Court cases have been blocked, have been dismissed for lack of standing. You have the inhibition of talking about very secret and sensitive information publically so that the virtue of transparency runs up against the virtue of secrecy.

  • 10:43:05

    EDGARYes. And I think I'd like to sort of push back a little bit on this idea that the NSA lied. I mean, the issue here really was mistakes that were very significant and serious. And even in characterizing them as misrepresentations, I think, might be fair. But it's difficult to describe programs that are highly classified in ways that don't appear to people on the outside to be misleading.

  • 10:43:33

    EDGARAnd there's also the problem of just changing technology that make it difficult to describe to a court exactly how you're doing it, especially when you're dealing with a team of lawyers trying to describe how it's being conducted. So I don't think there's really been any evidence whatsoever that any of the activities of the NSA has been malicious, has involved political spying or improper activities of that kind. In that way, I think, actually the IRS scandal is quite a bit worse because there has been the allegation at least.

  • 10:44:04

    ROBERTSRight.

  • 10:44:05

    EDGARSo yeah, I mean, this is part of my point is that when you are secretive about something, whether you're doing it for bureaucratic reasons or you're simply overly classifying things, you're going to get people's suspicions up because people think you're hiding something...

  • 10:44:22

    ROBERTSRight.

  • 10:44:22

    EDGAR...because guess what, you are hiding something.

  • 10:44:25

    ROBERTSLet's...

  • 10:44:25

    EDGARAnd the fact that you're hiding something doesn't necessarily mean that you have a malicious intent.

  • 10:44:30

    ROBERTSLet's turn to Tim in Nappanee. Do I have it correctly, Tim? Tim? Tim of Nappanee, Ind. You wanted to get in on this very subject.

  • 10:44:43

    TIMYes. You know, even before Snowden's release, I feel that, you know, it's like there's hidden laws or something, you know, that the American people are supposed to follow and the government don't have to, you know. And I want -- I just wanted to know why should we trust our government when they don't trust us by their listening in on everything?

  • 10:45:08

    ROBERTSOK, Tim. Thanks for your call. This is what we're talking about before, Siobhan, that Tim is reflecting, this deep suspicion of the government.

  • 10:45:14

    GORMANYeah. I mean, there's clearly a deep suspicion of the government, which is why it makes it that much harder for government officials to defend themselves against charges that they were, you know, conducting secret law, which is something that Sen. Wyden and others had said in terms of their interpretations of particularly the Patriot Act, the one that we're talking about, this phone data program. And I think that that has really infused a lot of this discussion.

  • 10:45:41

    GORMANAnd it's interesting because one of Mr. Obama's first sets of remarks on all of the NSA surveillance stuff said, well, I understand if the American public doesn't trust me. But if they don't trust me and the Congress and the courts, then we have a problem. And it's starting to look like maybe we have a problem. So that's -- I think, this kind of crisis of confidence is -- it's becoming quite clear at this point.

  • 10:46:09

    ROTENBERGBut the problem...

  • 10:46:10

    ROBERTSLet me turn to a couple of more callers. Christina, you're on "The Diane Rehm Show" from Annapolis, Md. Thanks for calling us.

  • 10:46:18

    CHRISTINAHello. Thank you for taking my call. I'm so glad you put me in right now after the last comment because that's one of the things that I found -- conversation personally and on the news. We're talking about an organization, not an individual. On civil rights liberties, don't get me wrong, I want mine protected, OK?

  • 10:46:37

    CHRISTINABut the spirit of the law of our entire Constitution was against tyranny and was against individuals. Our search and seizure protects me from a police officer picking me out and deciding unlawfully to search my car or to come into my home. We're talking about computers. We're talking about a program set up to defend us. And they're not interested that my son has soccer on Saturday morning. They're not interested in an email grumbling about my husband.

  • 10:47:04

    CHRISTINAThe computer isn't going to pay any attention to that. No individual is going is going to be able to abuse that information because it's never going to get to them. And so as much as I want my civil liberty -- on 9/11 when I was at university and then all of my chaplains, et cetera, what we were concerned with was, why we didn't we know?

  • 10:47:22

    CHRISTINAWhose fault is this? How come we -- this was coming? And if that means that a computer program, OK, or in a (unintelligible) it's going to run through, I don't understand. I don't understand how there's a certain level of protection, there's a certain level of threat that needs a certain response, and it's not an individual. I...

  • 10:47:42

    ROBERTSThanks very much for your call. We appreciate it. Do you have a response, Marc?

  • 10:47:46

    ROTENBERGWell, I certainly think that we agree that there are threats out there and that they need to be addressed and we support the government when it pursues threats. But, you see, when the government engages in this kind of secrecy, not only does it contribute to lack of public trust, it actually leads people to think is the government effective in what it's supposed to be doing.

  • 10:48:05

    ROTENBERGSo we've often argued for transparency not simply because it's good in theory, but also because it helps us evaluate whether or not the government is doing, in fact, what your listener is hoping the government is doing. We don't know otherwise. There is simply too much secrecy surrounding these activities.

  • 10:48:20

    ROBERTSNow, we also have a tweet from George. I'm not quite sure of his implication, but he says, "You are not discussing the relevance of these matters with the Boston marathon terror bombing." Perhaps I don't want to interpret George's view, but, Tim Edgar, one way to read his comment is that there's another side here, that there ongoing threats to American security. The Boston bombing reminded us that for all the time that has passed since 9/11, there are still bad guys out there and there's still a rationale for some of these systems.

  • 10:48:54

    EDGARWell, look, the remarkable thing about the Boston terrorist bombing is that there haven't been more of them. You know, the NSA has, you know, I think, accurately documented to the Congress 54 terrorist plots that have been thwarted by FISA authorities, 13 of those -- 54 in the homeland and 12 of those using some of these business record authorities to collect metadata. That's pretty powerful.

  • 10:49:21

    EDGARYou know, you look specifically at a case like Najibullah Zazi who was going to bomb the New York City subway system on -- and was tracked by the NSA because of communications he had with associates in Pakistan. I mean, that's almost a perfect mirror image of what failed to happen before 9/11, when Khalid al-Mihdhar, who was in San Diego and communicating with associates in Yemen, they couldn't -- they didn't, at least, uncover the fact he was in San Diego because the NSA didn't have that data.

  • 10:49:54

    EDGARThey had one side of the conversation that showed he was talking to, you know, the Yemenis were talking to him, but they didn't know where he was. So it is important to put in context the fact that these programs were put in place for the purpose of integrating our domestic and foreign intelligence collection systems in a way that was respectful of the rule of law, at least certainly after the FISA court got involved back in 2006, and that they have been effective in thwarting terrorist attacks.

  • 10:50:25

    EDGARSo, you know, could we do better in terms of privacy? I'm sure we can. But, you know, we do have to realize the NSA has a job to do and, you know, we, as Americans, will demand they do that job. And if it doesn't have the data, we're going to be roasting it, you know, on the coals for the other side instead of for violating our privacy.

  • 10:50:48

    ROBERTSWell, one of things that's interested me in this debate, Siobhan, is that you have Sen. Feinstein, one of the most liberal members of the U.S. Senate, chairman of the intelligence committee, President Obama, who's been a constitutional lawyer and has prided himself on his devotion to civil liberties, both of them having had access to the kind of information that -- of the secret briefings, have been pretty supportive of this. It's kind of -- some of the politics have been scrambled here. Talk about that.

  • 10:51:17

    GORMANYeah. We've seen a lot of scrambling. And in terms of sort of broadly defending the NSA, we've actually seen a pretty bipartisan coalition of those in the know, you know, whether it's, you know, John Boehner, the leader of the Republicans on the House side, or Sen. Feinstein, who chairs the Senate Intelligence Committee and is a Democrat, or the president. Basically, people who are really, really in the weeds or have been sufficiently briefed at least on these programs seem to buy into the fact that they're being conducted properly.

  • 10:51:50

    GORMANPeople who have partial information tend to still be very, very skeptical. And the interesting outliners in all of these have actually been a few members of -- primarily the Senate Intelligence Committee, Sen. Wyden and Sen. Udall, who have been very much in the weeds on these issues and still remained concerned, which is why in this whole debate, their voices tend to be some of the most interesting because they're informed yet critical, and they're also in the minority of the folks who are informed.

  • 10:52:19

    ROBERTSI'm Steve Roberts, and you're listening to "The Diane Rehm Show." Another issue that -- I apologize I should now go into our callers. We have some phone problems.

  • 10:52:31

    ROBERTSBut let me read an email, Marc, from James, who writes, "I'm amazed by the disconnect between the way the public perceives the data collection by NSA and the data collection by Google, Yahoo, Facebook, et cetera. It takes just a few seconds for an Internet search for a product or service to produce embedded ads popping up on your computer tablet. This impacts my life much more than the data collection for national security purposes by the NSA."

  • 10:52:57

    ROTENBERGWell, these are also large set of privacy issues related to Google and Facebook. And we spent quite a bit of time working on those over the years, but those consumer privacy issues are typically addressed, you know, by Congress, by law, by the Federal Trade Commission, by the FCC. I don't think the fact that we have those set of privacy issues to address somehow excuses the NSA's conduct, which, of course, also needs to be subject to law and overseen by the FISA court in Congress.

  • 10:53:24

    ROTENBERGI think there is the related problem that the person who sent the email may be aware of that increasingly, the data that's collected by the private sector companies becomes available for the government's use. And, in fact, that's actually key to understanding the scope of both of these programs, the telephone record collection and the Internet traffic collection.

  • 10:53:42

    ROBERTSWhich is exactly what you were writing, Siobhan.

  • 10:53:44

    GORMANYeah.

  • 10:53:44

    ROTENBERGSo they are in some ways more tightly integrated than I think most people understand. But as to the front end, I agree. I mean, consumer privacy is one set of issues and civil liberties with respect to the government is the second.

  • 10:53:56

    GORMANOne other small point is just that -- I mean, the government obviously has much more power over our lives than the average company, and so I think that that's also a distinction that people draw.

  • 10:54:05

    ROBERTSAlso, I'm interested in the larger role of these private companies. A number of them -- you talked about transparency, Tim Edgar. And a number of these companies, who, of course, have a brand to protect and a reputation to protect and are not particularly comfortable just being seen as collaborators with the government in the violation of privacy, have asked to be able to talk more about their role. And in some ways, the government has been reluctant to give them that opportunity. Talk about that dimension of the story.

  • 10:54:41

    EDGARYes. Certainly, companies are loathe to see themselves as being violators of privacy. They don't want the public to see them that way. And so they are often the biggest supporters of keeping things secret if they can. When they're under attack, though, they want to be able to defend themselves, and they want to be able to explain how their systems work.

  • 10:55:01

    EDGARAnd they don't control what details are not classified. So, you know, when the government is trying to respond to a situation like this, they can get together, and they can say, OK, here are some things we can make transparent. But the companies don't really have that ability.

  • 10:55:17

    EDGARThey -- all they can do is call up the government officials and say, hey, we're being accused of, you know, providing all of our customers' data to you with no protections. That's not the way we see it. Can we please talk about this program? Can we please talk about the safeguards? And so I think it's important for them as well -- for the companies as well to be able to have greater transparency.

  • 10:55:39

    ROBERTSSiobhan, when you were reporting your story, did you have representatives of some of these companies say, I really wish I could talk to you about what we're doing but we're not allowed?

  • 10:55:50

    GORMANTo some degree. I mean, it varies from company to company. And, you know, particularly with the program that -- the programs that we wrote about, which are tapping into the Internet backbone, most of these relationships are long, long standing relationships. I mean, some of them even dating before 9/11. So it's a little bit different from the kinds of relationships that we're forged more recently with the Googles and Facebooks of the world. So I think you're also seeing a little bit of an old guard, new guard difference there.

  • 10:56:16

    ROBERTSInteresting. Final word, Marc.

  • 10:56:18

    ROTENBERGWell, I just want to say, I think there's a little bit of a trap here on transparency. We have to be careful. You know, the NSA is now releasing documents to try to show that it's been more compliant than people might imagine. Google and others want to release information to show that they're protecting user privacy. Transparency really has to be independent and objective.

  • 10:56:37

    ROTENBERGAnd when the Congress first authorized the use of electronic surveillance back in 1968, it said we want on an annual basis this information provided to everyone. Not to make a particular political point at a moment in time but so that we have the ability over time to evaluate the use of these new authorities. And I think that's where we really need to go. That's the kind of transparency that will be meaningful.

  • 10:57:01

    ROBERTSThat's going to have to be the final word. That's Marc Rotenberg of the Electronic Privacy Information Center. Also with me, Siobhan Gorman of The Wall Street Journal, author of this very important story yesterday, Siobhan, about revealing yet more about the NASA -- NSA systems. And on the phone with us, Tim Edgar, who's a visiting fellow with the Watson Institute for International Affairs at Brown University.

  • 10:57:26

    ROBERTSI'm Steve Roberts of George Washington University, sitting in today for Diane. She's going to be getting a voice treatment and taking some vacation, be back in this chair in mid-September. And thank you, our listeners, for spending an hour of your morning with us.

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