Revolution Interview
Shayana Kadidal, of the Center for Constitutional Rights, on the Government's Massive Phone and Internet Spying
June 17, 2013 | Revolution Newspaper | revcom.us
Revolution Interview
A special feature of Revolution to acquaint our readers with the views of significant figures in art, theater, music and literature, science, sports and politics. The views expressed by those we interview are, of course, their own; and they are not responsible for the views published elsewhere in our paper.
The exposures that have come out since the first week of June, first reported by investigative journalist Glenn Greenwald, have brought to light large-scale spying by the U.S. National Security Agency (NSA) on the phone and Internet activity of billions of people in this country and around the world. This is a dangerous and ominous assault by the U.S. government against people's basic rights, aimed at monitoring and controlling everyone's thinking, communications, and activity. (See "Five Basic Points of Orientation on the Revelations of Government Surveillance" at revcom.us.)
In this light, Revolution talked to Shayana Kadidal, senior managing attorney for the Guantánamo Global Justice Initiative at the Center for Constitutional Rights (CCR) in New York City, to learn more about this massive surveillance by the U.S. government. Among the cases Kadidal has been involved in at CCR are legal challenges to the NSA's warrantless surveillance program.
In this interview, Kadidal links the current revelations of the huge spying going on under Obama to the government surveillance exposed during the George W. Bush years, and to the PATRIOT Act, the law passed in the wake of the 9/11 attacks that vastly expanded the government's repressive powers. In particular, he points to Section 215 of that law, which allowed the government to obtain all kinds of records of people's activity—including books borrowed from libraries, with the libraries prohibited from even notifying their patrons that they are being spied on. Section 215 is now being used as the "legal" basis for some of the vast spying being carried out.
Revolution: Would you give us a picture of what has emerged, since the current exposures first began recently, about the vast spying by the U.S. government on phone calls and on Internet activity?
Shayana Kadidal: The first set of stories indicated something that we had heard of in general in the past, as far back as May 2006, which is that the government is building a huge database of basically all the calling records from all the major phone companies in the United States. So, the story included an order from the secret Foreign Intelligence Surveillance (FISA) court mandating that Verizon Business, basically the old MCI, turn over all calling records of its customers—who called you, and who you called, when those calls happened, and if there’s cell phone location data, and all that kind of thing. Turn that all to the government for a three-month period.
Now, when it came out, people were thinking, a three-month period, maybe this was triggered by the Boston bomb attacks that happened only 10 days before. But that didn’t make much sense, because the investigation was over after 10 days and this was a three-month warrant and wasn’t in any way narrowed down to things that were linked to Boston. Eventually [Senator] Dianne Feinstein confirmed this was just a renewal order—every 90 days they get the same order, going back all the way seven years now to 2006. So it basically is the same program that USA Today reported on in '06. And USA Today reported they were getting this from a whole bunch of other phone companies as well.
So pretty much we know now that the government has a huge database of all phone records. They did get this court order under Section 215 of the PATRIOT Act—known often as the "Library Provision," because this was a provision that was very controversial when it was passed, not because it let the government do this kind of craziness but they could get people's library records—they could tell what books you’ve taken out.
It turns out they haven’t used it very much for that. But they got an order that was much broader than what the statute seems to permit from some compliant FISA judges to let them do this program. A couple things about that: When Congress passed the PATRIOT Act, it wasn’t exactly a great moment for civil liberties but they at least thought there was some level of accountability that was gonna come from the fact that these FISA judges were supposed to review the government’s surveillance requests to make sure that they were relevant to ongoing investigation. And that the relevance requirement would at least mean that any order that got approved would be somewhat narrow. You know, not just all calls in, all calls out for a whole company, for a long period of time. So that was one measure of oversight, the FISA court, right? Which we know rubber-stamps most orders. It’s staffed with judges hand picked by the Chief Justice, so either Roberts or Rehnquist picked all these folks. They operate in secret. They never publish any of their opinions. They’ve historically been a rubber stamp—they didn’t reject a single one, I think, out of the first like 20 years of requests that the government gave them. I think five rejections out of first 19,000 orders or something like that. Not a lot of review there.
The other thing that was supposed to be an accountability mechanism was that at the end of the year, Congress was supposed to get a report on how many times this libraries provision had been used. But if they get one order that covers an entire 10-million-subscriber phone company, for every single call that anyone makes, it’s gonna be very deceptive reporting. They could report at the end of the year, we had five orders, and that could cover 95 percent of the American phone-using public.
So all the accountability mechanisms failed, and already relatively broad surveillance authority passed in the PATRIOT Act was used much broader than it should have been used, in part because of these failures of the accountability mechanism.
Revolution: And what about the surveillance on people's Internet activity—the NSA's PRISM program?
Kadidal: Yes, but one more point, in terms of why anyone should care. Look, you can tell an awful lot about the content of communications by noticing the patterns of when they happen. So if an AP reporter phoned three people in the House of Representatives and the next day publishes an embarrassing story, revealing some embarrassing government secrets, it’s not too hard for government to put together what that journalist was talking about on the phone with his sources, right? The metadata is almost more important than content there. Similarly, if some Congressperson, it turns out, was calling phone-sex lines repeatedly over the course of several years, that becomes sort of J. Edgar Hoover territory in terms of what the intelligence agencies would be able to blackmail that Congressperson with.
Revolution: This data is collected and stored. So they can go back over time.
Kadidal: Right. They certainly can. The administration’s main defense on this has been that, well, they need another order to go back and search the database. [Speaking of the government,] "You guys can’t tell from the document that was leaked, but there are a whole bunch of other rules that govern this program, it's been around for seven years, so the judges don’t write it all out in orders. But in order to search this database there are different things that are required."
Is that plausible? It doesn’t seem plausible on the basis of what's in the order. Would it be a plausible arrangement? These are the kind of things we need to investigate and figure out, right? The Congress needs to dig into it. The American public needs to demand answers to it. That’s pretty much the phone thing in a nutshell.
One last thing about this. Because this went through PATRIOT Act 215, which requires a court order from this rubber-stamp court, a lot of people don't realize this, but in order to get your phone records, they don’t need a warrant. All they need to issue is a subpoena. The Supreme Court decided in a case called Smith v. Maryland in 1979, that the numbers you dial are not protected in the same way the contents are. For the content they need a warrant from a judge. They need to be able for a domestic call to prove probable cause you’re involved in some crime, that they need the wiretap in order to investigate. To get your phone records, all they need to do is to submit an affidavit that says they're interested in getting your phone calling records for purposes of some investigation. It's a very easy standard to hit. The government uses these subpoenas much more often than they use actual traditional warrants.
So just to give you an example, it not only applies to phone records but to anything that's like that—kind of akin to the address written on the outside of a letter rather than the contents of the letter. And the theory of the Supreme Court was, well you're turning this information over to the phone company, a third party, in order for them to use it in routing your calls so you don't expect that it's going to be private. Plus it shows up on your billing records and that kind of thing, it's just not private in the same kind of way because it's turned over to a third party. So what else is turned over to a third party? Your banking records. Your credit information. Emails that you count on your ISPs to move around, right? They're only protected by an additional statute that Congress created after the Smith decision. What else? Documents in cloud storage. Certain types of chat. There are a whole slew of things people would assume they need a warrant to get, and yet they don't. So that's kind of an important point, I think.
Here you've got this ridiculously broad surveillance authority through a court order, but they don't even need that much. And obviously if they're just subpoenas to the phone companies, the only way that'll ever come out is if the phone companies tell, right? But phone companies are usually gagged from revealing that order. They were gagged with a 215 order, for instance. That's right in the text of the order, that they can only tell their own lawyers, that's the only outsiders they can tell, if the lawyers want to challenge it on behalf of the phone company. But they can’t tell their customers whose records are being turned over.
In terms of the subpoenas, there are different rules. Some of them are called national security letters. There may be similar gag rules there. But the important point is that the telephone companies are in such a heavily regulated industry, and antitrust laws on the rates they can charge, in terms of taxation on certain types of services, bandwidth, that they have no incentive whatsoever to stand up to the government, they have even less than a typical corporation does.
Revolution: All this is outrageous enough—but then came the revelations about PRISM, the Internet spying by the NSA.
Kadidal: In terms of the PRISM thing. The crazy aspect of this seems to be, we know the government has some sort of hard-wiring into the systems of the phone companies. Now there were some indications of this from very far back. If you'll remember, Electronic Frontier Foundation brought a case in spring of 2006 that was based on some inside whistleblower type of documents they had gotten from a guy named Mark Klein who worked at AT&T. And Klein indicated that basically, in the San Francisco switching station where these huge fiber optic cables would come up from under the ocean and then network into the domestic network, the NSA had a special room inside AT&T's big switching facility on Folsom Street. And in that room they basically siphoned off one whole copy of everything that was coming off of these massive fiber optic cables that carry all these international communications. So basically they were sucking in everything, from right inside the phone company.
Given that, it shouldn't be that surprising that they seem to have some kind of hard-wired capacity to plug right into the systems of Google and Apple and Microsoft and whoever else, right?
Revolution: The companies say they have not given the government a "back door" to their systems.
Kadidal: The companies' CEOs and other spokesperson types have denied knowing this. But, look, the program itself is going to be classified. So the people who know about the technical details are going to be sort of the low-level tech managers who actually handle the implementation, and maybe some of the lawyers. They're not going to be the chief executives. Even if that guy or woman did have a security clearance, they're not going to be able to talk about it. So I don't know why anyone is surprised by these denials. It's probably just something that's coming out of ignorance more than anything else, which is again a consequence of the classification system.
So in terms of PRISM, further revelations from the government in defense of their position have basically said, look, this is just a technical system we have set up to implement surveillance under the FISA Amendment Act, the changes to the Foreign Intelligence Surveillance Act in the summer of 2008. Key points there are that that Act was essentially passed basically to codify the NSA program that the New York Times revealed in 2005—this very sweeping, almost gather everything, anything the government wants with any minimal degree of suspicion without too much individualized intervention by the FISA court. And this is basically the same thing. You go to FISA court, and the court approves not a single warrant at a single target but a whole program of surveillance. You put in your criteria—this is roughly what we're going to look for. Could be as broad as "all calls to Israel" or "all calls back and forth to Venezuela" or whatever. And as long as it's aimed mostly at gathering the communications of foreigners, the court rubber-stamps it, and then they go off and implement it.
So this statute, unlike the phone thing—where the statute was read more broadly than it should have been, the court shouldn't have granted the order and Congress should have gotten better reporting—here, the statute itself was ludicrously broad. And who was a key player in getting it passed? Basically Senator Obama switched his vote on it, and that took surveillance completely out of the political arena. Obviously, he was preparing to finalize his presidential campaign in summer of 2008, and he didn't want this to be a disputed issue, I guess. But that really took a lot of the steam out of the movement that had built up when the NSA disclosures first happened in late 2005, because now it wasn't a political issue anymore between the parties.
Revolution: How much of all this surveillance that has now come out do you think is directed expressly at monitoring and even suppressing political dissent and opposition?
Kadidal: Well, there are plenty of political movements that are already regarded as quasi-"terrorist" by the government, right? So all sorts of activism relating to Gaza, relating to Cuba, relating to various revolutions in the Middle East over the last few years, are already on the government's radar. The question almost should be how much does the government even distinguish between terrorism and political activism. But then there's the chilling effect too. I mean, just knowing that the government has this database, and if they decide that your group is a threat in the future even if they don't believe that now, that they can pretty much figure out everything about your associational patterns, that's going to dissuade people from coming out and networking politically, right? So that in itself is a huge, huge problem. I might analogize it to the kind of, the efforts of various Confederacy states during the 1960s to get at the NAACP's membership lists.*
Revolution: What's come out so far already seems almost surreal in terms of how vast the surveillance is—but at the same time you get a sense that it may be just the tip of the iceberg. What's your thoughts on that?
Kadidal: Yeah, well, I don't think we've seen the end of Glenn Greenwald's reporting on this either. So hopefully there'll be a lot more. But part of that is the consequence of the fact that this agency, the NSA, we don't even probably know its budget breakdown. The top-line budget for the NSA and CIA is enormous—I think it's something like $40 billion for both of them. We know they have about 40,000 employees, so they're bigger than the CIA. We only know that because people have estimated from satellite photos of their parking lot. So there's very little knowledge about the capabilities that these folks are building. Very little oversight of that either, because everything about their budget and operation is completely off the public books. That in itself is a huge problem. There are reports—Wired magazine seems to run a story every month about the new facilities they're building, what they might be up to. But it comes to have a kind of a science fiction feel.
I think one of the great things about the phone records order [issued to Verizon] is that actually seeing the order really... as a lawyer it has an impact on you. You look at it, it looks like the boilerplate of a traditional warrant. But when you get to the point where they're supposed to make the specific description—you know, "this person talking on this line about this kind of criminal activity"—instead it just says, "Give us everything"... "Give us all phone records of foreigner calls"... and "all domestic calls." So from an emotional standpoint, just kind of realizing what it's all about, what's happening—having the actual document makes a great impact. It shows a little bit the value of even the most minimal form of transparency—you know, one order out of many, many, many.
* Note from Revolution: In the early 1960s, a number of former slave states—Alabama, Arkansas, Louisiana, Tennessee, Texas, and Virginia—ordered the NAACP to turn over their membership rolls under various legal pretexts. Given the tight relationship between the state governments and police on one hand and groups like the KKK on the other, it was clear that surrendering the lists would subject members to harassment, economic retaliation, and even lynchings. The NAACP waged a legal fight against the orders, but the orders and the threat of huge fines for non-compliance virtually put a stop to the activity of the organization in these states for years. [back]
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