< The State of Our Surveillance State


Friday, June 07, 2013

BROOKE GLADSTONE:  From WNYC in New York, this is On the Media. I'm Brooke Gladstone.

BOB GARFIELD:  And I'm Bob Garfield. Since Thursday, a cascade of revelations confirmed what most of us really already kind of knew but preferred not to dwell on, that our government has access to records about our phone calls and our credit card purchases, as well as the emails, online photos, file transfers, chats and well, who knows what else, of foreigners.

After the British Guardian newspaper printed a leaked document showing that the US National Security Agency had regular access to the phone records of millions of Verizon customers, WNYC's Brian Lehrer Show took some calls.


BRIAN LEHRER:  Lamar in Manhattan, you’re on WNYC. Hello.

LAMAR:  Good morning to both you. I don't understand what the concern is when we never hear any of your guests reference the fact that this country is at war! And, therefore, these intrusive security measures are necessary, based on supposedly protecting us from the events that happened in Boston and from 9/11.


BOB GARFIELD:  The government’s surveillance powers are derived under the post-9/11 Patriot Act renewed in 2006 and in 2011 by Congress, the people who are elected to protect our democracy and our homeland, not necessarily in that order. And when it comes to surveillance, all that's partisan melts into air. Here are Republicans Mike Rogers and Saxby Chambliss, and Democrat Dianne Feinstein.

MIKE ROGERS:  This program was used to stop a terrorist attack in the United States. We know that. It is legal. It’s been authorized by Congress.

SAXBY CHAMBLISS:  We have gathered significant information on bad guys, but only on bad guys over the years.

DIANNE FEINSTEIN:  It’s to ferret this out before it happens. It's called protecting America.

BOB GARFIELD:  Of course, there have been congressional critics too, Libertarians Ron and Rand Paul, Democratic Socialist Bernie Sanders, mainstream Democrats like Dick Durbin, Mark Udall and Ron Wyden. But only legislators on the relevant committees knew much about the programs, and they weren't allowed to talk about them.

BROOKE GLADSTONE:  When it comes to the Verizon revelations and later allegations about AT&T and Sprint, the government emphasizes that it doesn’t listen to the calls or even know the names of the callers. It’s only metadata that’s information about the calls. But don't underestimate that data’s revelatory powers, says Shane Harris, author of The Watchers:  The Rise of America’s Surveillance State.

SHANE HARRIS:  First off, we've never seen an order actually from the intelligence court that issues these authorities. And it is just sort of the breadth of it. I mean, if you read it, it does say “all call detail records.” I mean, it's essentially saying everything.

BROOKE GLADSTONE:  By everything, we mean the phone number of every caller and recipient, the serial number of the phone, the time and duration of each phone call and, potentially, the location of each of the participants when the call happened.

SHANE HARRIS:  That's right. The idea here is that if investigators have a telephone number, say of a suspected or a known terrorist and they want to find out who else that person may have been talking to in the US, they can take that number, run it against the meta database of phone numbers and, if they find hits and connections, they can start studying them.  Now, if they want to find out the name of that person that the suspect has been talking to, they can go get a warrant to do that.

BROOKE GLADSTONE:  So let's just say, hypothetically, that the government has been collecting, since 2006, all the metadata from all the phone companies of all the customers in the United States. Why?

SHANE HARRIS:  It’s so that if someone does pop up in the future, we've got a record that we can go back and trace his communications, his associations back as far as we can go. Now, the important other question with that though is, is the only thing that they're doing with this information comparing phone numbers of people who pop up on the counterterrorism radar? I don't think so. I mean, I’ve done a lot of reporting on this in my book, and that what you find is that once the NSA has this information, they like to try and analyze it for all kinds of different things - doing pattern analysis and trying to graph it, to figure out where the terrorist networks are. I's not just being used for this one purpose of comparing it to phone numbers. We’re put in the position when we don't know what's being done with the information to sort of just trust that the government’s using it appropriately.

BROOKE GLADSTONE:  Senator Lindsey Graham was on Fox and Friends Thursday, and he said it’s not a big deal because it's only being used for one purpose.

SEN. LINDSEY GRAHAM:  I don’t think you're talking to terrorists. I, I know you're not. I know - I know I'm not, so we don’t have anything to worry about.

SHANE HARRIS:  I suppose that it is true that most people in this country, I think, presume that well, they don't have anything to hide, so fine. If it can help prevent a terrorist attack, then let them keep it. But what we do have to understand is that there is a history with these agencies of violating people's privacy, of overreach and that we should have some more robust oversight, I think, of this process, other than senators coming out and saying, oh, we’ve known about this for years, there’s nothing to worry about.

BROOKE GLADSTONE:  On Twitter Thursday, a lot of reporters responded to this with a great big “meh,” [LAUGHS] saying that they figured this was going on. So why is this story eliciting such a strong reaction in some quarters and such a shrug in others?

SHANE HARRIS:  You know, I'm somebody who's written a book about this, and I was still stunned by it. I can't think of any piece of paper that has ever been leaked out of this court. There’s maybe been one opinion ever released by it under the Freedom of Information Act.

BROOKE GLADSTONE:  We're talking about the FISA Court.

SHANE HARRIS:  Correct, the Foreign Intelligence Surveillance Court –


SHANE HARRIS:  - which was set up to oversee this process of, of surveillance for intelligence and counterterrorism purposes.


SHANE HARRIS:  We’ve just never seen the document, and when you sort of sit down and look at it in its breadth, it is – it is a bit breathtaking. This actually gives us a window now right into the heart of where these decisions are made. And I do think that that makes this an extraordinary revelation, even if we already knew, yeah, the government was collecting tons and tons of data about us. This is a really, really huge leak, and I presume it will be fully investigated.

BROOKE GLADSTONE:   Shane, thank you very much.

SHANE HARRIS:  My pleasure, thanks.

BROOKE GLADSTONE:  Senior Washingtonian writer Shane Harris is the author of The Watchers:  The Rise Of America's Surveillance State. Last December, as Congress was approving five more years of the FISA Law, allowing warrantless surveillance of Americans’ overseas communications, Democratic Senator Ron Wyden addressed a mostly empty chamber.

SEN. RON WYDEN:  Colleagues, it is not real oversight when the United States Congress cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law-abiding Americans have had their phone calls and emails swept up under the FISA Law.

BROOKE GLADSTONE:  Wyden's concern was focused mostly on Section 215 of the Patriot Act, which the government interpreted, secretly, to mean something more than it actually said.

ELIZABETH GOITEIN:  Section 215 of the Patriot Act, on its face, says that the government can obtain certain kinds of information, using a court order, if it can demonstrate that the information is relevant to an authorized foreign intelligence or international terrorism investigation.

BROOKE GLADSTONE:  Elizabeth Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice.

ELIZABETH GOITEIN:  So we’ve just learned that the government and, in fact, a secret court, both interpret this provision to allow the government to obtain any and all information, regardless of whether there's any relevance, as long as it agrees not to actually search the information until it has more of a reason to think that there's some wrongdoing going on.

 For years, the few senators who had actually known about the secret interpretations, because they serve on the Intelligence Committee, and so they're privy, like Ron Wyden, like Mark Udall, like Senator Feingold before them, some of those senators have raised an alarm and said, there’s an interpretation of the law that looks entirely different from what the law actually says. But until now, no one has known how the law is being interpreted and applied.

BROOKE GLADSTONE:  So, if under the government's interpretation they can collect all this stuff but they really can't search it, unless they have a reason to believe that there is a threat, why are we worried?

ELIZABETH GOITEIN:  There's been a, a long and inglorious history of the government misusing information to target social activists and political enemies and, even on some occasions, personal enemies. The Church Committee in the 1970s studied  administrations going back to FDR and found that across administrations that these abuses have been commonplace.

We’ve seen some examples of it recently, as well. In 2010, there was an Inspector General report at the Department of Justice that found that the FBI was investigating antiwar protests. And there have been even more, I would say, instances recently of government officials misusing information for personal reasons, using information to stalk ex-girlfriends or, you know, find out things about their neighbors. You know, the government, most of the time, is using this information for all the right purposes but there is a tremendous potential for abuse.

BROOKE GLADSTONE:  What about the response of intelligence officials saying that this leak was reprehensible, that we've damaged our security?

ELIZABETH GOITEIN:  It’s very hard to evaluate that claim. And every time the government is pressed for some explanation or example of an instance in which it’s kept us safe and say, well, we can’t talk about that, in terms of the evidence that we see for the usefulness of data mining - and data mining is really the only possible reason to be gathering all of the phone records of all Americans - data mining has not been shown yet to be useful in identifying patterns of behavior that are correlated with would-be terrorists.

BROOKE GLADSTONE:  As the President said on Friday, they’re collecting the information. They won’t have permission to actually use it, unless they smell something fishy.

ELIZABETH GOITEIN:  One thing we don't know yet, is the information itself being used to determine whether there’s a reason to use it? And what I mean by that is, is the government running computer programs that will flag people they want to look at more closely, and then they say, now we have a reason to look at this person because the computer flagged it? That’s really the equivalent of sending dogs into your house to sniff around for drugs and then when they bark, saying, oh well now we can get a warrant.

BROOKE GLADSTONE:  Well, if it weren’t drugs and it were a bomb, would you feel the same way?

ELIZABETH GOITEIN:  I would. Now, if the government has a reason to think that there's a bomb there, then the government can get a warrant. Do we want to say that the government can walk into each and every one of our houses whenever it wants just to check, because they know that somebody, somewhere has a bomb?

I was listening to the President’s remarks today and he kept saying, I’m glad were having this conversation. This is what we need to be thinking about as a country. And I couldn’t help but think how can he say that he welcomes the conversation, that he wants to have a conversation, when the government did everything in its power to prevent this conversation from happening, until this leak happened?

BROOKE GLADSTONE:  So I wonder if there’ll be really vigorous leak investigations now?


ELIZABETH GOITEIN:  Oh, there will be. There will be.

BROOKE GLADSTONE:  Elizabeth, thank you very much.

ELIZABETH GOITEIN:  Okay, thank you.

BROOKE GLADSTONE:  Elizabeth Goitein is co-director of the Liberty and National Security Program at the Brennan Center for Justice.



Elizabeth Goitein and Shane Harris

Hosted by:

Bob Garfield and Brooke Gladstone