At the end of the year, a surveillance program that was pitched, intended,
I suppose, to help security officials counter foreign threats, is set to expire.
And there's this big debate about whether it should whether it should be continued,
whether it should be amended.
So the Biden administration, as well as a number of different intel agencies that
rely on this, are pleading with Congress to extend the statute.
But there are some Republicans and some Democrats.
This is bipartisan effort if, although not necessarily for
the same reason that they're against it, are arguing against it.
So what we're talking about here is Section 702 of
the Foreign Intelligence Surveillance Act.
So that permits warrantless surveillance against foreign targets.
But occasionally, in the words of the Washington Post, they're saying,
occasionally collects communications with Americans which go into a database.
The law allows investigators to search that database by using US phone numbers,
email addresses, and other identifiers.
So the concern amongst some lawmakers is whether it should be amended to
require a warrant to access information about Americans.
Now, you might be a little bit confused here.
Since the program was pitched, supposedly designed to allow for
surveillance of people outside of the United States.
Why wouldn't it be baked in that there would be additional safeguards against
accessing the information of Americans?
Well, that's a good question.
I think that goes to the motivation of the people that set it up.
In any event, as of right now, the FBI can search the database when they have
evidence of crimes or for foreign intelligence purposes.
But it's documented that the process has been repeatedly abused.
And we wanna stress, repeatedly.
A court order that was unsealed last month showed that the FBI had improperly
searched the database for
Americans' information more than 278,000 times over several years.
Including, interestingly, for
details of people arrested during US protests against police violence.
And obviously, if you're doing some sort of foreign spying investigation,
you're gonna wanna search for people who are locked up for, like,
throwing a rock at a George Floyd protest.
I'm sure that's what their motivation was.
Now, they insist that since those early years, up until,
like, two years ago, they've made some major changes, and
you don't have to worry about the abuse anymore.
They say that procedural changes at the FBI from 2021 to 2022
have cut the number of searches of US individuals by 94%, okay?
So that's great.
And admittedly, I am not a mathematician, but that still leaves 6%.
And so over the same sort of period of time that we previously talked about,
that would still leave 16,680 illegitimate searches of Americans information.
I do not feel all that placated by this information.
Jordan, I know that this is something that you have certainly spent a great
deal of time thinking and talking about.
What do you think about the debate that they're having right now?
>> Well, you have to also consider the report in wired just a couple of days
ago about how the federal government is buying tons of data on Americans.
Now, it's not just what they're collecting,
it's also what they're buying in this data marketplace.
That's extremely murky.
The third party doctrine creates a really complicated legal framework for
this because sure, the government can't just spy on you directly.
I mean, they probably are, but let's just legally they're not supposed to be.
But let's say you give your information to Facebook,
you give your information to Etsy, you give your information to
all of these other companies and apps all across the internet.
You lose your expectation of privacy when you're dealing with that company,
and a lot of those companies also aggregate all that data and sell it.
There's been a lot of reporting and
really great books on this going back a decade plus now.
And again, this is something that Edward Snowden was warning about this mass
clandestine catch all surveillance.
You have to remember when asked about this,
the former DNI James Clapper in the Senate said that the government was not
willingly collecting all of this information on Americans.
With every story like this, it becomes clearer and
clear that he lied in the Senate and essentially committed perjury.
They'll never hold him to that, but they are lying about what they're doing.
So you have to compare these stories and juxtapose them and look at them together.
Because not just are they illegally collecting people's data, doing all of
these searches when they really shouldn't even been collected in the first place.
They're also going out independently and buying mass troves of data on Americans.
And you have to ask, why are they doing this?
What could be done with that?
In a future administration, a future government, if someone takes over who's
way more vindictive and way more authoritarian than Trump.
Look, we all wanna tell you what a threat he is, but
there could be worse people than him.
In that scenario, do you want all of your data in that person's hands?
I would say you don't.
And the defense always is, or kind of the lackadaisical approach is, well,
I've got nothing to hide.
What's it matter?
Plenty of people have nothing to hide.
That still doesn't give the government the right to violate your
constitutional rights to privacy.
It's just a basic constitutional principle and
that should be applied in a digital age.
But unfortunately, because our decision makers and our leaders and
our legislators lag behind technological advancements, it never will catch up.
>> Yeah, 100%.
By the way, the prospect of somebody like notably worse, that is a scary thing.
They could be out there, you're right.
It's hard for me to imagine.
But they could be out there working their way up through reality TV like Trump did.
I don't know who, I'm gonna guess the Property Brothers.
There's something about them that I just don't trust.
There is a hurdle constitutionally to two men holding one office.
But they're clever.
They're clever.
Anyway, look, this seems like having a warrant to access Americans
information in a database that is not supposed to be about collecting or
accessing Americans information.
I would classify as the privacy based legal bare minimum.
The fact that that is controversial, I find to be scary.
There are many on the side of the Biden administration that are arguing that this
is absolutely critical, that it needs to not only be renewed,
but it does not need to be hamstrung in literally any way.
Here is George Barnes, Deputy Director of the NSA,
talking during a senate judiciary hearing.
>> When the intelligence community compels the assistance of electronic communication
service providers under 702 authority.
We quickly get access to reliable,
detailed information that addresses key national security
information gaps affecting the safety and security of our nation.
The importance of this authority to our mission cannot be overstated.
We have spoken publicly many times about how 702 has supported our
counterterrorism mission.
From preventing an attack on New York City's subway in 2009 to
supporting the operation that took down Amen Zawahiri just last year.
But 702 has likewise become indispensable across NSA's other vital mission areas.
>> So look, some of that might even be true, but it will always be trotted
out to get Americans to comply with less of an expectation of privacy.
I know and I believe last week on the young Turks was going over a polling about
people's expectation of privacy when it comes to government surveillance,
which has just fundamentally changed.
I mean, Jordan, I know you're a good chunk younger than me, but when I think back to
when I started to get into politics, it was during the run up to the war in Iraq.
It was the patriot act and all that.
That seems like a world to go,
I think generationally in terms of the expectation of privacy.
I feel like the state making a case like you saw in that video.
They must feel like it is way easier to convince people
to live under these conditions at this point.
>> The way people use the internet and
the way people communicate has changed drastically.
It's almost all digital now.
So few people, especially our age, even have landlines,
so they only communicate on their cell phones or
online and nobody writes letters.
You've become so conditioned to it, it's kind of like the frog in the boiling pot.
You've just gotten so conditioned to only doing digital communication and
interaction with the understanding that some company or
some entity out there is collecting everything.
And it's just maybe too abstract that you don't really take time.
Most people don't take time to think about what's being done with my data,
where's it going.
We all feel weirded out when we say something or search something, and
then later on we get an ad for it.
The weirdest is when you verbally talk about it and get an ad for it.
That's uncomfortable, right?
Well, do you want the government collecting everything that,
say, you say in front of your smart home device.
And then that company bundles everything and
sells that metadata to a government that can then just apply multiple
layers based on what they've collected already and what they've bought.
And it's pretty easy after a couple of layers of metadata to identify somebody.
Do you want that archive in the possession of a government?
I would argue no.
I would argue that you don't even want that in a private company.
I would hope many people agree with me.
But because I think so many people have been conditioned to just accept these
terms, that everything is being collected and ultimately sold,
that they just don't care.
>> Yeah, look, I will end with this.
Some cause for optimism, perhaps.
There are obviously people who agree with you.
And like I implied in the intro to this, it's sort of a weird collection.
Sometimes you have the normal sort of privacy advocacy groups that you might
expect, some progressives, but then you also have some Republicans.
There have always been a few libertarians who might be uncomfortable about this.
But then there's also the Republicans who've spent the last like seven years
having to imply that the FBI and the NSA are all trying to get Trump or whatever.
So now they just kind of have to be against those groups,
even though they would have been, like,
banging the war drums for the Patriot Act the most back in the day.
So, strange bedfellows, but
maybe they'll at least get some of these amendments through.