The government’s authority to sweep up millions of Americans’ phone records has expired. The practice exposed by National Security Agency whistleblower Edward Snowden could now face limited reforms as the Senate weighs the USA FREEDOM Act, which would require the government to ask phone companies for a user’s data rather than vacuuming up all the records at once. We get reaction from Glenn Greenwald, the Pulitzer Prize-winning journalist who first reported on Snowden’s revelations. TRANSCRIPT This is a rush transcript. Copy may not be in its final form. AMY GOODMAN: The U.S. government’s authority to sweep up millions of Americans’ phone records expired at 12:01 this morning, after the Senate failed to renew the practice exposed by National Security Agency whistleblower Ed Snowden. The move comes after Republican senator and presidential hopeful Rand Paul of Kentucky blocked an extension of three controversial measures in the PATRIOT Act during a special Sunday session of the Senate. SEN. RAND PAUL: Let us be clear: We are here tonight because the president continues to conduct an illegal program. We are not collecting the information of spies. We are not collecting the information of terrorists. We are collecting all American citizens’ records all of the time. This is what we fought the revolution over. Now, people say, “Well, they’re not looking at it. They’re not listening to it.” It’s the tip of the iceberg, what we’re talking about here. And realize that they were dishonest about the program until we caught them. They kept saying over and over again, “We’re not doing this. We’re not collecting your records.” And they were. The head of the intelligence agency lied to the American people, and he still works here. We should be upset. We should be marching in the streets and saying he’s got to go. People say, “How will we protect ourselves without these programs?” What about using the Constitution? What about using judicial warrants? The Tsarnaev boy, the Boston bomber? They say, “How will we look at his phone records?” Get a warrant! Put his name on it! AMY GOODMAN: The three parts of the PATRIOT Act that have now expired include Section 215, which authorizes the NSA’s bulk collection of telephone metadata, a lone wolf provision giving intelligence agencies the authority to follow suspected terrorists who may not be affiliated with a terrorist group and so-called roving wiretaps that allow the government to monitor someone who may use different phone lines to escape detection. In the hours ahead of Sunday’s failed vote to renew the measures, CIA Director John Brennan appeared on CBS’s Face the Nation with outgoing host Bob Schieffer. BOB SCHIEFFER: Do you think that terrorist elements will take advantage of this? JOHN BRENNAN: I think terrorist elements have watched very carefully what has happened here in the United States. Whether or not it’s disclosures of classified information or whether it’s changes in the law and policies, they’re looking for the seams to operate within. And this is something that we can’t afford to do right now, because if you look at the horrific terrorist attacks and violence that’s being perpetrated around the globe, we need to keep our country safe. AMY GOODMAN: After the Senate debate Sunday, the Senate voted to 77 to 17 to now consider the measure known as the USA FREEDOM Act, which calls for reforming the bulk collection of telephone records by requiring the NSA to make specific requests to phone companies for a user’s data rather than vacuuming up all the records at once. The measure passed the House but failed in the Senate by three votes last week, leading to Sunday’s showdown. The vote can come no earlier than 1:00 a.m. on Tuesday. Well, for more, we go to Rio de Janeiro, Brazil, where we’re joined by Glenn Greenwald, Pulitzer Prize-winning journalist who first exposed Edward Snowden’s revelations around mass surveillance. Glenn’s recent piece for The Intercept is headlined “Anonymous Fearmongering About the PATRIOT Act from the White House and New York Times.” Welcome back to Democracy Now!, Glenn. Why don’t you start off by talking about the significance of these key provisions of the USA PATRIOT Act sunsetting, ending, expiring early this morning? GLENN GREENWALD: I think the greatest significance of the most recent event is more symbolic than anything else, but it’s still actually quite significant. It’s really worth comparing the debate that we’re now having to what passed for a debate both in 2005 and 2011 over whether to renew the PATRIOT Act. Remember, even after 9/11, in the weeks after 9/11 when the country was willing to give the government essentially anything that it asked for, the PATRIOT Act was regarded as this extremely radical piece of legislation, a very fundamental departure from how we always understood what the government could and couldn’t do when spying on us. And even in the wake of 9/11, it was regarded that way. And that’s the reason why, when it was enacted, embedded into some of these provisions was the idea that, look, this is only supposed to be a temporary measure; it will automatically go away, sunset, lapse every five—unless Congress every five years reauthorizes it. And in 2005, the Bush administration demanded its renewal with no reforms. And in 2010, the Obama administration did exactly the same thing: demanded renewal of the PATRIOT Act with no reforms. And there was almost no opposition in either house of Congress, either political party, just some token opposition from some libertarians, and Congress easily and overwhelmingly renewed the PATRIOTAct. The fact that we’re now having this very contentious debate, where the PATRIOT Act actually has lapsed, at least for a few days, and that we’re going to have some kind of change in the law that we’re calling reform underscores how significantly public opinion has changed and the climate of the country has changed, the views of the tech community have changed, when it comes to how much surveillance we’re willing to allow our government to engage in against us in the name of terrorism. I think that’s really the greatest significance, is the sea change that this represents. AMY GOODMAN: Former Florida governor and likely Republican presidential hopeful Jeb Bush has been calling for the reauthorization of the PATRIOT Act. He spoke to Face the Nation on Sunday. JEB BUSH: There’s no evidence, not a shred of evidence, that the metadata program has violated anybody’s civil liberties. The first duty of our national government is to protect the homeland. And this has been an effective tool, along with many others. And the PATRIOT Act ought to be reauthorized, as is. AMY GOODMAN: During his weekly address, President Obama spoke about theFREEDOM Act. This is part of what he said. PRESIDENT BARACK OBAMA: The USA FREEDOM Act also accomplishes something I called for a year and a half ago: It ends the bulk metadata program, the bulk collection of phone records, as it currently exists and puts in place new reforms. The government will no longer hold these records; telephone providers will. The act also includes other changes to our surveillance laws, including more transparency, to help build confidence among the American people that your privacy and civil liberties are being protected. AMY GOODMAN: So that’s President Obama on the FREEDOM Act, that could be voted on very shortly in the Senate, and before that, Jeb Bush. Interesting, Glenn Greenwald, the lines are breaking down between Democrat and Republican. Of course, President Obama very much against the expiring of the USA PATRIOT Act. Can you talk about what is happening right now in the Senate with, well, the Republican, Rand Paul, up against the Senate majority—the Senate speaker, the Senate majority leader, Mitch McConnell; Ron Wyden taking Rand Paul’s side? Talk more about what the lines are now. GLENN GREENWALD: I think it’s fascinating that Jeb Bush has sort of become the Republican spokesman for demanding a renewal of the PATRIOT Act, a position that he shares with President Obama, because it really is the kind of classic Bush-Cheney mentality that’s behind not just that position, but the arguments being invoked in its favor. If you listen to what Obama administration officials have been saying for the last month, they essentially sound exactly like Karl Rove and Dick Cheney and that whole crew sounded in 2004 and 2005 every time they wanted to coerce something that they wanted, which was: “We’re in danger. The terrorist threat is mounting. And unless you submit to what it is that we want, which is a renewal of the PATRIOT Act, you’re putting lives in danger. If you’re an opponent of the PATRIOT Act or a critic of the PATRIOT Act,” have said Obama officials, “you’re endangering American lives.” They actually went anonymously to The New York Times, and The New York Times gave them anonymity, to say that anybody standing in the way of PATRIOT Act renewal is playing, quote, “national security Russian roulette,” something that Karl Rove is probably jealous that he never thought of himself as a phrase for scaremongering. So you see the Republican and the Democratic establishments very much aligned on this question. In fact, Mitt Romney last night tweeted in opposition to Rand Paul and said, “The PATRIOT Act keeps us safe, and we need its renewal,” exactly what Obama officials have been saying for the last several weeks. And then, on the other side of the debate, you have not only Rand Paul but huge numbers of liberals. There were 86 people in the House who voted against the USA FREEDOM Act, not on the grounds that it restricted the NSA too much, but that it didn’t restrict the NSA enough. And you had leaders in the House like tea party conservative Justin Amash standing side by side with civil rights hero John Lewis and John Conyers and others, saying that we need even more restraints on what the NSA is doing. And so, there is no Democrat-versus-Republican or even left-versus-right split on this issue, nationally or in the Congress. Actually, what you have is the establishments of both political parties, that want to keep American empire strong, that want to maintain the weapons of militarism and the surveillance state and the profit that it generates and the power that it generates completely intact—they’re working in unison together to demandPATRIOT Act renewal. And then you have these kind of outsiders on both the left and the right, a coalition that we saw in opposition to the Wall Street bailout and now we’re seeing again, saying, “No, we don’t actually need or want our government to be able to monitor the communications of hundreds of millions of citizens who have done absolutely nothing wrong. Mass surveillance is intrinsically dangerous, and it’s something that the Constitution forbids.” And so, I think it’s really exciting to see the breakdown of the standard partisan divisions, and it leaves Democrats, in particular, with a lot of cognitive dissonance, because during the Bush years they were trained to think of the PATRIOT Act as this evil thing that Dick Cheney did, and they were trained to think that it was terrible if you stand up and say, “If you oppose our policies, you’re helping the terrorists,” and now you have the leader of the Democratic Party, President Obama, and the leaders of the Democratic Party in the Congress leading the way demanding the renewal of the PATRIOT Act and sounding exactly like Dick Cheney. And you have a tea party Republican, Rand Paul, being the nominal leader of the effort to undo the PATRIOT Act. So it really sends Democrats into this sort of spasm of cognitive dissonance over why it is that their party is now defending the law that for so many years they were told they should hate. AMY GOODMAN: We’re talking to the Pulitzer Prize-winning journalist Glenn Greenwald in Rio de Janeiro, Brazil. His piece in The Intercept is headlined “Anonymous Fearmongering About the PATRIOT Act from the White House and The New York Times.” I also want to talk to you about the media’s role. And after we finish speaking with Glenn, we’re going to Colorado. You’ll hear the full graduation speech that a valedictorian in Longmont, Colorado, did not get to give because his principal learned he would be coming out as gay in the speech. We’ll speak with 18-year-old Evan Young himself after you hear his address. Stay with us. [break] AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. Speaking to Face the Nation on Sunday, CIA Director John Brennan called for the reauthorization of the PATRIOT Act, arguing it has been integral to preventing terrorist attacks in the U.S. JOHN BRENNAN: The tools that the government has used over the last dozen years to keep this country safe are integral to making sure that we’re able to stop terrorists in their tracks. The tools that we had under thePATRIOT Act, those ways that we are able to monitor their activities, really have helped stop attacks. These tools are all part of a package of safeguards that has been put in place, and so the president, the attorney general, the director of the FBI, director of national intelligence, the heads ofNSA and CIA all are very supportive of an extension of those capabilities and those authorities. And, unfortunately, I think that there’s been a little bit too much political grandstanding and crusading for ideological causes that have really skewed the debate on this issue. But these tools are important to American lives. AMY GOODMAN: That’s CIA Director John Brennan calling for reauthorization of thePATRIOT Act. The key provisions were expired at 12:01 this morning, Monday morning. The Senate will be taking up the USA FREEDOM Act in the next few days. Glenn Greenwald, can you respond to what Brennan has said? GLENN GREENWALD: First of all, it’s, I mean, truly hilarious to listen to the director of the CIA accuse other people of having ideological causes in the policies that they support, but even more amazing is the fact that he’s sitting there telling the American public something that he knows to be completely false, which is that these tools have been critical in keeping the country safe. For one thing, how has the country been kept safe? There have been multiple terror plots aimed at the United States, some of which have succeeded, including an attack on Fort Hood and one on the Boston Marathon, and others that were thwarted by very traditional law enforcement means having nothing to do with the PATRIOT Act, like the attempted bombing of Times Square or a detonated bomb on an airline jet over Detroit on Christmas Day by the so-called underwear bomber. But there have been multiple commissions since Edward Snowden came forward, including one convened by the Obama White House itself, that gave that commission access to all of the classified data, and they issued a report saying that this domestic metadata program has never, ever been successful in stopping even a single terrorist plot. The federal court, which in 2013—2014 said that the program was unconstitutional, said there was no evidence that the NSA or the Justice Department could point to that this program has ever stopped a terrorist plot. And Democrats on the Intelligence Committee, who have access to all of the classified information, have all said the same thing, that there’s no role that these programs play in stopping terror plots. So, for John Brennan to go on television—unchallenged, of course, as always, by Bob Schieffer, who we’re all supposed to think is such a great journalist—and to be able to say something that even the administration’s own evidence completely negates, which is that this program is helpful in stopping terrorism, is extraordinary. These programs have had no role in stopping terrorism at all. And if anything, it’s because the government is collecting information on everybody that it’s incapable of knowing when somebody is plotting an attack like the one at the Boston Marathon. AMY GOODMAN: So, let’s go to Ed Snowden himself in an exclusive new interview withThe Guardian. NSA whistleblower Ed Snowden argued mass surveillance programs do not help deter terrorist threats, as you’re saying, Glenn, around the world. EDWARD SNOWDEN: One of the unfortunate, truly unfortunate, sort of amplifiers of the tragedy of narrowing your rights in this context of terrorism is the fact that we know these programs don’t help mitigate terrorism. In the United States, we had programs appointed by the White House, two different independent panels with access to classified information, that looked at these programs and found that in not a single case had mass surveillance produced information that made a concrete difference in any terrorism investigation. AMY GOODMAN: That is Edward Snowden speaking in—well, he’s in—he has political asylum in Russia, in Moscow. Glenn Greenwald, you met with him in Hong Kong. You were the one, with Laura Poitras, who revealed the documents that he was able to get as an NSA subcontractor. President Obama said this debate would have happened anyway, without Ed Snowden’s revelations. Do you see what has taken place in these last hours as directly—that Ed Snowden is directly responsible for this debate? GLENN GREENWALD: Of course. First of all, President Obama’s claim that the debate was about to happen anyway, he was all revving up to get the debate going before he even heard of Edward Snowden, is the most laughable thing ever. By the time Edward Snowden came forward, President Obama was in office for five full years, and not only had he never started any such a debate, he actively blocked any debate from happening by sending the Justice Department over and over into court. When the ACLU would sue and say these programs of surveillance are unconstitutional, President Obama’s Justice Department would say, “You have no idea what it is we’re even doing. You can’t prove that your clients have been subjected to them, and therefore no court can rule on whether these programs are constitutional or legal.” And so they did everything possible to suppress the debate, not to make it happen. Of course, the only reason we’re having this debate, the only reason that this is an issue, the only reason why the PATRIOT Act is going to be reformed is because one person was courageous enough, in an act of conscience, to come forward and tell his fellow citizens about what his government was doing that should have been known all along, even knowing that it would unravel his life in all sorts of unimaginable ways. And so, that’s why I think, you know, it’s clearly the case, and it’s really worth thinking about today. And I think other people who previously were attacking Snowden and condemning him have come out in the last month and said, “You know what? I was wrong about that. I actually think that what he did was patriotic.” And we all should realize that we do owe him a genuine debt of gratitude and not threats of lifetime in prison. AMY GOODMAN: An article last week in The New York Times also argued for reauthorization of the PATRIOT Act, citing unnamed Obama administration officials saying such security measures cannot be suspended at a time of, quote, “mounting terrorism threats.” In the piece headlined “White House Presses for Deal on Phone Data Bill,” the author goes on to quote an unnamed senior official saying, “What you’re doing, essentially, is you’re playing national security Russian roulette.” Another source is quoted as saying, “We’re in uncharted waters. … We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.” These are unnamed quotes in The New York Times. Glenn, your piece in The Intercept not only goes after the USA PATRIOT Act and the White House, but goes afterThe New York Times. GLENN GREENWALD: I mean, The New York Times, the biggest disgrace journalistically in their history was the fact that they helped the Bush administration sell the Iraq War to the American public by disseminating false claims. And the way they did that was by giving anonymity to government officials to make utterly false claims with no accountability and then laundering it to the public. And after that all happened and it got exposed, they said they had learned their lesson and that they would no longer allow government officials to scare the public while hiding behind anonymity. And yet nothing has changed at The New York Times. That article that you just referenced is a pure illustration of exactly what Judy Miller got scapegoated and fired for, which is giving anonymity to government officials to scare the public in order to get what they want. And what’s most amazing about it, Amy, is not that this—this wasn’t even a case where some government official called a reporter at The New York Times and said, “Oh, I have some information for you,” and pretended to be leaking something that was unauthorized and said, “I’ll only give it to you if you give me anonymity.” It was a White House call, where multiple reporters were invited to appear on this conference call. The officials were at the White House making these claims, and they said, “The only way we’re going to let you do the reporting is if you keep our names suppressed from your readers.” And these subservient journalists said, “OK, we agree to those conditions. We will write down and print what you say, but we’ll hide the identity of who the person is who’s saying it so that there’s no accountability for you.” And what makes it even worse is, in that article where they said people who were opposing the PATRIOT Act were playing national security Russian roulette and were ignoring mounting terror threats, they didn’t quote a single critic of the PATRIOT Act. There was nobody to say what I just said this morning, what Edward Snowden said in that clip that you played, which is that all of this evidence shows that these programs play no role in stopping terrorism at all. It was a one-sided, pro-Obama-administration press release, where anonymity was given to scare the public into endorsing the PATRIOT Act—exactly what The New York Times itself admits is journalistic recklessness, and yet they continue to do it, which would raise a real question about what The New York Timeswants its role to be and what it sees its function as being. AMY GOODMAN: Now, Glenn, for people who are still having trouble understanding, you’ve got these key provisions of the USA PATRIOT Act that have sunset, that have expired. But the USA FREEDOM Act, which Kentucky senator and the Senate majority leader, Mitch McConnell, didn’t want to first consider, is now going to be voted on by the Senate. It was passed by the House. What are the key differences? And what are your concerns with the USA FREEDOM Act? GLENN GREENWALD: Right, so there’s basically three factions in the Congress. One is the Rand Paul-led faction that says that this new law, the USA FREEDOM Act, doesn’t go far enough in limiting the NSA and that in some cases it actually strengthens the NSA, which is a classic Washington tactic, to call something a reform when it in reality is strengthening the institution to be reformed. Then you have this other faction, the right-wing kind of neocons in the Republican Party, the national security hawks, who say, “We don’t want any reform at all of the NSA, and therefore we’re opposed to the USA FREEDOM Act, because we don’t think anything should be reformed.” And then you have the big bipartisan coalition in the middle, that includes the Obama White House, that says, “We like this new law, the USA FREEDOM Act. We think it provides just enough reform to limit some of the abuses of the NSA, while at the same time keeping the NSAstrong and vibrant.” The big change in the USA FREEDOM Act that is being heralded is that it ends the domestic metadata program, so the NSA will no longer collect all of the phone records showing all of the Americans who are talking and who they’re talking to. Instead, those records will be kept by the private telephone companies. So if you make a call through Sprint, it will be Sprint that keeps that record. They already do that. And if the government wants to access some of those records, instead of just being able to look on their own in their own private stash, they now have to go to the phone companies and ask the phone companies for these records. There’s a slightly higher standard that they have to meet in order to access it, so it does provide some additional safeguards. It also provides some added transparency in what the FISA court does. Some of the FISA court proceedings will now be open. It will require that there be someone present at the FISA court proceeding—besides the government—who can advocate on behalf of the person who the government wants to spy on. So there definitely are some mild reforms in the USA FREEDOM Act. The problem is, is that it leaves overwhelmingly undisturbed the vast bulk of what theNSA does, and it’s very unlikely that there will be another reform bill, which means that the NSA’s core mission and core activities will remain unreformed and unchanged. And in some sense, it does actually expand the NSA’s capability, because a federal court just two weeks ago said, under the PATRIOT Act, they never had the authority to engage in any kind of bulk collection at all, it was illegal for them to be doing it, and the USA FREEDOM Act, to some degree, allows some kind of bulk collection, in a way that arguably is an increase over even what the current law allows. So, there’s a real debate—and I am sort of ambivalent about where I fall on it—about whether the USA FREEDOMAct, on balance, is a good or bad thing. But it is true that there are some things in it that are real reform. It’s certainly a step in the right direction. And I think symbolically it’s important that for the first time we’re taking powers away from the government after 9/11 rather than giving them more. And I think that can be built on to someday get real reform. AMY GOODMAN: And finally, as we are in an expanded presidential season, we heard what Jeb Bush had to say, who’s expected to be a Republican presidential hopeful. Bernie Sanders announced on the Democratic side, said he opposed the USA PATRIOT Act, is pretty sure he’ll vote for the USA FREEDOM Act at this point, but voted against the—against keeping the reauthorization of the USA PATRIOT Act. Hillary Clinton, where does she stand, Glenn Greenwald? GLENN GREENWALD: It’s a huge mystery. You know, her tactic seems to be to take no position on anything controversial until she’s absolutely forced to. But, you know, if you look at Hillary Clinton’s record over the past decade, she is 100 percent in the camp of the Democratic Party hawks. She was behind PATRIOT Act reauthorization in 2005 and then again in 2010. She was part of an administration that oversaw a massive expansion of NSA spying. She has never uttered a word to suggest that she’s at all bothered by any of it. So, although she has, consistent with her general tactics, cowardly refused to say what she thinks on this matter, I think you can infer from her long history, not in the past, but in the very recent past, that she’s fully supportive of this regime of spying. AMY GOODMAN: I want to thank you very much for being with us, Glenn Greenwald, a Pulitzer Prize-winning journalist. One of his recent pieces for The Intercept, we’ll link to, “Anonymous Fearmongering About the PATRIOT Act from the White house and New York Times.” Glenn Greenwald was speaking to us from Rio de Janeiro, Brazil. When we come back, the graduation speech that the high school valedictorian did not get to give. You’ll hear it here first on Democracy Now! Stay with us.
Protesters rally against mass surveillance during an event organized by the group Stop Watching Us in Washington, DC, October 26, 2013. (Photo: Rena Schild / Shutterstock.com)This story was co-published with the New York Times. Without public notice or debate, the Obama administration has expanded the National Security Agency’s warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking, according to classified NSA documents. In mid-2012, Justice Department lawyers wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad – including traffic that flows to suspicious Internet addresses or contains malware, the documents show. The Justice Department allowed the agency to monitor only addresses and “cybersignatures” – patterns associated with computer intrusions – that it could tie to foreign governments. But the documents also note that the NSA sought to target hackers even when it could not establish any links to foreign powers. The disclosures, based on documents provided by Edward J. Snowden, the former NSA contractor, and shared with the New York Times and ProPublica, come at a time of unprecedented cyberattacks on American financial institutions, businesses and government agencies, but also of greater scrutiny of secret legal justifications for broader government surveillance. While the Senate passed legislation this week limiting some of the NSA’s authority, it involved provisions in the USA. Patriot Act and did not apply to the warrantless wiretapping program. Government officials defended the NSA’s monitoring of suspected hackers as necessary to shield Americans from the increasingly aggressive activities of foreign governments. But critics say it raises difficult trade-offs that should be subject to public debate. The NSA’s activities run “smack into law enforcement land,” said Jonathan Mayer, a cybersecurity scholar at Stanford Law School who has researched privacy issues and who reviewed several of the documents. “That’s a major policy decision about how to structure cybersecurity in the US and not a conversation that has been had in public.” It is not clear what standards the agency is using to select targets. It can be hard to know for sure who is behind a particular intrusion – a foreign government or a criminal gang – and the NSA is supposed to focus on foreign intelligence, not law enforcement. The government can also gather significant volumes of Americans’ information – anything from private emails to trade secrets and business dealings – through Internet surveillance because monitoring the data flowing to a hacker involves copying that information as the hacker steals it. One internal NSA document notes that agency surveillance activities through “hacker signatures pull in a lot.” Brian Hale, the spokesman for the Office of the Director of National Intelligence, said, “It should come as no surprise that the US government gathers intelligence on foreign powers that attempt to penetrate US networks and steal the private information of US citizens and companies.” He added that “targeting overseas individuals engaging in hostile cyberactivities on behalf of a foreign power is a lawful foreign intelligence purpose.” The effort is the latest known expansion of the NSA’s warrantless surveillance program, which allows the government to intercept Americans’ cross-border communications if the target is a foreigner abroad. While the NSA has long searched for specific email addresses and phone numbers of foreign intelligence targets, the Obama administration three years ago started allowing the agency to search its communications streams for less-identifying Internet protocol addresses or strings of harmful computer code. The surveillance activity traces to changes that began after the Sept. 11 terrorist attacks. The government tore down a so-called wall that prevented intelligence and criminal investigators from sharing information about suspected spies and terrorists. The barrier had been erected to protect Americans’ rights because intelligence investigations use lower legal standards than criminal inquiries, but policy makers decided it was too much of an obstacle to terrorism investigations. The NSA also started the warrantless wiretapping program, which caused an outcry when it was disclosed in 2005. In 2008, under the FISA Amendments Act, Congress legalized the surveillance program so long as the agency targeted only noncitizens abroad. A year later, the new Obama administration began crafting a new cybersecurity policy – including weighing whether the Internet had made the distinction between a spy and a criminal obsolete. “Reliance on legal authorities that make theoretical distinctions between armed attacks, terrorism and criminal activity may prove impractical,” the White House National Security Council wrote in a classified annex to a policy report in May 2009, which was included in the NSA’s internal files. About that time, the documents show, the NSA – whose mission includes protecting military and intelligence networks against intruders – proposed using the warrantless surveillance program for cybersecurity purposes. The agency received “guidance on targeting using the signatures” from the Foreign Intelligence Surveillance Court, according to an internal newsletter. In May and July 2012, according to an internal timeline, the Justice Department granted its secret approval for the searches of cybersignatures and Internet addresses. The Justice Department tied that authority to a pre-existing approval by the secret surveillance court permitting the government to use the program to monitor foreign governments. That limit meant the NSA had to have some evidence for believing that the hackers were working for a specific foreign power. That rule, the NSA soon complained, left a “huge collection gap against cyberthreats to the nation” because it is often hard to know exactly who is behind an intrusion, according to an agency newsletter. Different computer intruders can use the same piece of malware, take steps to hide their location or pretend to be someone else. So the NSA, in 2012, began pressing to go back to the surveillance court and seek permission to use the program explicitly for cybersecurity purposes. That way, it could monitor international communications for any “malicious cyberactivity,” even if it did not yet know who was behind the attack. The newsletter described the further expansion as one of “highest priorities” of the NSA director, Gen. Keith B. Alexander. However, a former senior intelligence official said that the government never asked the court to grant that authority. Meanwhile, the FBI in 2011 had obtained a new kind of wiretap order from the secret surveillance court for cybersecurity investigations, permitting it to target Internet data flowing to or from specific Internet addresses linked to certain governments. To carry out the orders, the FBI negotiated in 2012 to use the NSA’s system for monitoring Internet traffic crossing “chokepoints operated by US providers through which international communications enter and leave the United States,” according to a 2012 NSA document. The NSA would send the intercepted traffic to the bureau’s “cyberdata repository” in Quantico, Virginia. The disclosure that the NSA and the FBI have expanded their cybersurveillance adds a dimension to a recurring debate over the post-Sept. 11 expansion of government spying powers: Information about Americans sometimes gets swept up incidentally when foreigners are targeted, and prosecutors can use that information in criminal cases. Citing the potential for a copy of data “exfiltrated” by a hacker to contain “so much” information about Americans, one NSA lawyer suggested keeping the stolen data out of the agency’s regular repository for information collected by surveillance so that analysts working on unrelated issues could not query it, a 2010 training document showed. But it is not clear whether the agency or the FBI has imposed any additional limits on the data of hacking victims. In a response to questions for this article, the FBI pointed to its existing procedures for protecting victims’ data acquired during investigations, but also said it continually reviewed its policies “to adapt to these changing threats while protecting civil liberties and the interests of victims of cybercrimes.” None of these actions or proposals had been disclosed to the public. As recently as February, when President Obama spoke about cybersecurity at an event at Stanford University, he lauded the importance of transparency but did not mention this change. “The technology so often outstrips whatever rules and structures and standards have been put in place, which means that government has to be constantly self-critical and we have to be able to have an open debate about it,” Obama said. Laura Poitras contributed reporting.
James Bamford, Bill Binney and Edward Snowden risked all to convince the public and Congress that the NSA is spying on us, and now, a push is on to further discourage whistleblowers. Protesters rally against mass surveillance during an event organized by the group Stop Watching Us in Washington, DC, October, 2013. (Photo: Rena Schild / Shutterstock.com)There’s a little-known backstory to Director of National Intelligence James Clapper’s famous “not wittingly” lie, in response to Sen. Ron Wyden’s March 2013 question, “Does the NSA collect any type of data at all on ‘millions or hundreds of millions of Americans’?” that demonstrates the importance of whistleblowers to our democratic control over the national security establishment. The backstory is worth remembering, as Congress debates what to do about the dragnet Clapper tried to hide. It stems from on-the-record statements Bill Binney (one of the highest-level whistleblowers to ever emerge from the NSA) made to former NSA whistleblower and historian James Bamford for a March 2012 Wired article. In addition to explaining that the collection points for President George W. Bush’s illegal wiretap program, Stellar Wind, were positioned to collect domestic data, Binney revealed that the US had access to “AT&T’s [and Verizon’s] vast trove of domestic and international billing records, detailed information about who called whom in the US and around the world.” Binney also explained how the NSA can suck up targeted content from around the world using something like a Google search in a program we have since learned is called XKeyscore. Four months later, NSA Director Keith Alexander donned a hacker costume and spoke at the DefCon hacker’s conference in Las Vegas. DefCon Founder Jeff Moss asked General Alexander about Binney’s claims. “Does the NSA really keep a file on everyone?” “Absolutely no,” Alexander responded. “Anybody who would tell you that we’re keeping files or dossiers on the American people knows that’s not true.” Less than a year later, Edward Snowden would provide proof that Alexander’s response – not Binney’s original claim – was the false statement. Alexander’s DefCon comments led Senator Wyden to set out on a months-long effort to get Alexander or James Clapper to publicly correct this false claim. In an October 2012 letter, Wyden asked Alexander to answer the same question the Senator would eventually pose to Clapper in a public hearing. “Since you made your remarks in an unclassified forum,” Wyden said, specifically raising the general’s comments at DefCon, “we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public and not interpreted in a misleading way.” But Alexander continued to obfuscate. That’s what led Wyden to – with fair warning – try to force Clapper to correct the record at an open Intelligence Committee hearing. Clapper refused to correct Alexander’s lies; he chose, instead, to keep Americans in the dark and continue Alexander’s obfuscation. But Clapper’s dishonest response was key to convincing Edward Snowden to leak a trove of documents to several journalists. “I think I was reading it in the paper the next day, talking to coworkers, saying, can you believe this shit?” Snowden told Bamford, explaining what led him to leak in a 2014 interview. James Bamford, reporting on domestic surveillance to the Church Committee decades ago and then spending his life illuminating the NSA’s work; Bill Binney, alerting Congressional staffer Diane Roark and years later the press about the details of Stellar Wind; and now Edward Snowden, sharing documents with the press; only all three together finally forced the government to confess it was collecting data on every American. It took years and multiple whistleblowers following each other before the government admitted it had been lying about the spying NSA does on Americans, while still hiding many other ways it collects Americans records. Only because of that series of whistleblowers was the Second Circuit Court able to review that spying program and declare it unlawful in early May. Even in spite of that court decision, some in Congress are fighting to retain or expand aspects of domestic spying, even as a majority of Congress supports requiring the government to make more tailored requests to communications providers. The Senate will try for a second time in just over a week to pass the USA Freedom Act Sunday night, a reform that – though weak – would get the government out of the business of holding onto all Americans’ phone records. Perhaps more troubling than the weak reform or bid to expand the dragnet, both Senate Intelligence chair Richard Burr and his Democratic counterpart, Dianne Feinstein, want to make sure the kind of whistleblowing that informed Americans about the dragnet ensnaring their communications won’t happen in the future. Both introduced bills in the past week that would provide for new penalties for whistleblowing about this law, in particular. Should the public assume, from this draconian effort to hide what this program does, that it will do more than the government has been claiming? Whatever the case, at this moment of history, with Congress poised to take baby steps toward reining in an abusive dragnet, it’s worth remembering that it took years of effort to expose the dragnet before Snowden’s leak forced the government to admit it was spying on all Americans. And worth noting that the top overseers for the intelligence community would like to discourage any similar whistleblowing going forward. Bill Binney and Marcy Wheeler will speak Tuesday night, June 2, at 7 pm at Chicago’s North Park University at an event celebrating the importance of whistleblowers. Go here for more details.