Ep. 249: “The End of the Constitution Had to Start Somewhere”

“What the Hack?” is DeleteMe’s true cybercrime podcast hosted by Beau Friedlander

Floor Statement on the Foreign Intelligence Surveillance Act (FISA) – June 25, 2008: Madam President, soon the Senate will take up the Foreign Intelligence Surveillance Act. It, of course, is known as FISA and FISA may not be a household word to most Americans, but a properly written FISA reauthorization is exceptionally important to the wellbeing of our country…. 

Beau: That was Senator Ron Wyden of Oregon in 2008. It is April 26th, 2026 as I sit here on a Sunday worrying about what’s going to happen on Tuesday when Congress will to decide if it’s going to reauthorize one of the most powerful surveillance tools in American history. Most Americans have never heard of FISA, much less Section 702 of it. By the end of this episode, you’ll understand what it is, why it matters, and what’s at stake if Congress gets this wrong. I’m Beau Friedlander, and this is What the Hack, the podcast that asks, in a world where your data is everywhere, how do you stay safe online?

President Nixon Announces Resignation – C-SPAN: I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as president at that hour in this office. As I recall the high hopes for America…

Beau: FISA. The Foreign Intelligence Surveillance Act was born out of a scandal. After President Richard Nixon used the intelligence community to spy on his political enemies, congress decided there needed to be a law that put limits on government surveillance. That was 1978. The idea was simple. If the government wants to spy on someone, they have to go to a special court and make their case. The court is called the Foreign Intelligence Surveillance Court. It was designed to be the check on executive power that Nixon proved we needed.

Coats outlines ‘section 702’ surveillance law – Washington Post: At the outset, I wanna stress three things as a backdrop to everything else that my colleagues and I are presenting today. First, as I mentioned at the outset, collection under 702 has produced and continues to produce intelligence that is vital to protect the nation against international terrorism and other threats.

Beau: That was Dan Coats, Trump’s Director of National Intelligence, once upon a time, laying out what section 702 is legally allowed to do. He outlines four limitations, and they’re all true. The surveillance that’s going on is restricted to foreign targets only. No U.S. persons, nobody inside the United States, no reverse targeting, which means, which tells you something. Law enforcement surveils a foreign target. They can’t do that just to gather intelligence on an American they communicate with, which is a little back door. If that were the whole story though, I’d be having a chill Sunday. Section 702 was added to FISA in 2008. There was a reason for it, of course. It was 2001. You know, it started as something else, but it morphed into this and yeah, there was a real use case. Terrorists and foreign adversaries were using American email servers, American phone networks, American internet infrastructure to target Americans. Under the old rules, the government had to go to the FISA court and get an individual order for every single foreign target using those systems. It was slow, it was resource intensive, and it was putting people at risk. ‘Cause that’s not the speed at which these things need to move. So Congress said, instead of individual orders, the government gets annual blanket authorization to surveil foreign targets overseas, using American communications infrastructure. It’s really very narrow. That was the deal. And there are people in Congress who will tell you it’s a deal worth keeping.

Sen Tedd Budd – News Nation Clip: Do you think Americans will be less safe if that surveillance tool expires, sir?

Clip: Oh, a hundred percent. Look, FISA had major reforms 18 months ago that we helped lead. There’s 56 specific reforms that are in RISA, RISA that we have passed. And this authority is coming up for renewal right now.

Beau: This is Senator Ted Budd of North Carolina arguing in favor of reauthorization of FISA and specifically section 702.

Sen Tedd Budd – News Nation Clip: We have taken from hundreds of thousands down to just a handful of U.S. person queries. All that is transparent. It’s reportable to congress. It has to have internal checkoffs so that that happens. It was not done like it’s done under Obama, or it was done under Joe Biden. We need these authorities and I see the evidence in the content that this stuff produces and how it helps keep us safe. Things that we never hear about in our country, and allow 350 million people to sleep well at night. A lot of it is because of 702. So I hope we get this renewed.

Beau: When FISA comes up for reauthorization, that’s the only time congress has any real say over what the intelligence community is doing. That’s a big deal. If reforms don’t get attached now, they don’t get attached at all. A warrant requirement before the FBI can search 702 databases for information about Americans… seems like a good idea, right? Closing the data broker loophole so law enforcement can’t buy data that they’d otherwise need a warrant to collect. That seems really simple and like common sense. Rebuilding the wall between intelligence and law enforcement inside the FBI also. Well, that’s a little more complicated, but we’re gonna get into it. And disclosure to criminal defendants when 702-collected information was used against them. Now to get a feel for what we’re talking about here, we’re gonna talk to Senator Ron Wyden of Oregon, who was in office when 702 passed. Senator Wyden, welcome to What the Hack.

Wyden: Hey, thanks for having me. 

Beau: Alright, now, you’ve been on the Senate Intelligence Committee since Section 702 was written, longer than anyone else serving. What do you know about how this law has actually been used that the American public still doesn’t know?

Wyden: Well, the fact is there have been a whole host of abuses and in fact, I’ve actually put something in that’s classified that says people are going to be staggered if they find out what’s really been done by the government. Now, there are three developments that are encouraging for our side that we haven’t seen before. The first is there are about 20 Republicans in the House of Representatives who’ve shown a real inclination to be for reform. That’s something we haven’t had. The second is in the House particularly because a lot of Democrats are concerned about Donald Trump having all this authority, we’ve kept almost everybody in the House Democratic Caucus on the side of reform. So big circumstances, really opportunity for reform, and we’re pushing hard.

Beau: All right. Can you explain for our listeners the backdoor search loophole? In plain terms, just what does it allow the government to do and why is it a problem?

Wyden: Well, it basically gives the government an opportunity to get around having a warrant and going in and getting all this information, and it’s really personal and intimate. Once you get that kind of information, you can really hurt people and healthcare data, that sort of thing.

Beau: Yeah, and I mean, and it has been already used. We know it’s been used to search for Black Lives Matter protestors, political campaign donors. How widespread is it? I mean, do you have some visibility into how widespread the practice is right now?

Wyden: We think under Donald Trump, it has grown. I mean, certainly we’ve had data over the years, but the last reform bill didn’t do much reform, and we think it’s grown.

Beau: So on March 17th, the the FISA court found major compliance problems and then I know that Trump has since appealed this, and now we have this vote coming up. But how can y’all vote on something when you don’t have, when everybody doesn’t have visibility into what the complaint was from the court?

Wyden: You are being logical and heaven forbid that should ever happen in D.C., but particularly when Donald Trump is involved. Donald Trump has taken advantage of something where the courts have already indicated that there’s a weakness in terms of protections for individuals, and it’s wrong that he’s doing it.

Beau: Well, let’s back up a little bit. So we’re talking about gigantic amounts of information. I mean, FISA was originally, it started because of Nixon recording people and it first had to do with that kind of signal control. Where are we now with the… if you were to just tell an American who didn’t know the situation about their information and where it stands with the government, what would you tell ’em?

Wyden: Well, I’d build on what you just said and I’d talk about AI. I mean, we’ve had AI officials say that AI-driven surveillance makes it possible to take all this scattered data and turn it into a comprehensive picture of anybody’s personal life. We’re talking about something that is automatic, it’s at massive scale and I’ve been trying to make sure that people understand that’s why we need real reform this time and not just pretend. What you’ve got essentially today is fake reform. Basically, we are not doing much other than taking what was done last time, and that was inadequate.

Beau: Well, what’s driving it? What’s driving this interest in throwing Americans’ privacy to the wayside?

Wyden: Donald Trump is pulling out all the stops. He’s always been interested in his personal power. That’s what drives him. This would give him a chance to have people that are sympathetic to him with very few guardrails.

Beau: What is at stake? How does this hurt people?

Wyden: What’s at stake is that Donald Trump is basically trampling on what the founding fathers had in mind. Ben Franklin said anybody who gives up their liberty to have security really doesn’t deserve either. That’s essentially what Donald Trump has taken away. Donald Trump is saying, this is about me. And I wanna be able to use this personal data on people, say Planned Parenthood or something like that, to my advantage.

Beau: Anthropic’s CEO Dario Amodei made a statement when he was pulling out of his contract with the government saying that AI mass surveillance poses a serious and novel risk to fundamental liberties. And I think what this boils down to is the fact that there is an enormous amount of information being grabbed willy-nilly from a lot of sources and never before in the history of technology have we had the ability to parse all of that and make sense of it and actually make it actionable. That’s what’s happening right now. We know that ICE has access to this. What else should we be thinking about as you head into —

Wyden: What we ought to think about is new tools require new rules and without new rules, with respect to AI, you give the executive branch the authority to run roughshod over the privacy rights of Americans, and that’s why the stakes are so high. I would tell you that the legislation is important under any circumstances, but in terms of what’s going on with bulk surveillance and how AI would change that and change it to expand Donald Trump’s rights without the checks I’m calling for, would be a prescription for trouble for people.

Beau: And will the checks that you’re calling for stop this loophole where ICE and CBP and other agencies can just purchase the data that would otherwise require a warrant?

Wyden: Absolutely. That’s at the heart of my legislation. It’s been bipartisan and you know, this idea that people are just using a credit card and going in and buying data and everything in sight is wrong, and my legislation would check it. It’s a huge privacy problem, but it’s also surveillance issue because of what it leads to.

Beau: Right, so where are we now with regard to getting some of this under control with the loophole, at least the workaround?

Wyden: I’m going to offer an amendment to reform this, to fix the problem you and I are talking about on the floor of the United States Senate. And that’s why I think it’s great that your program is talking about it because it’ll gimme a chance to get the word out more readily.

Beau: Can you tell me a little bit about that?

Wyden: Well, what we do is, you know, the Senate goes in on Monday, most of the senators are coming back, but by Monday afternoon I’ll be on the floor talking about these issues, what it means with AI, what the risk is in terms of Donald Trump being left unchecked, and I think we’re going to do better than a lot of people think. I mean, in the House, they’re also dealing with the fact that procedurally they have to get something called a rule to even get started. And I’ve been talking to house members over this weekend, and it looks like they don’t have the votes for a rule.

Beau: Now, is any of this related to the Fourth Amendment is Not for Sale in that legislation?

Wyden: Very, very much so. The Fourth Amendment is Not For Sale is connected to how loose the system is, and basically if you got a credit card, you can get around it.

Beau: It seems very, like you said, I guess unreasonable, but it seems very simple that that is not what our founding fathers had in mind when they wrote the Constitution about the fourth Amendment.

Wyden: The founding fathers were very explicit on this. They had a big debate on this, and Ben Franklin, you know, led this. I don’t believe that security and liberty are mutually exclusive. You and I are talking about some of the policies that we ought to be dealing with. Good policies will get us more liberty and more security. And crummy policies like these unchecked opportunities for Donald Trump to scoop up, hoover up all our information, bad policies will give us less security and less liberty.

Beau: Well, and less innovation too. I mean, I would like you to talk about that because the surveillance when, if everyone thinks they’re being watched, it’s really gonna put a hamper on what people think they are even thinking about.

Wyden: There’s no question about this. The Trump approach is anti-innovation. It’s anti-personal rights, and it’s basically Donald Trump just trying to be able to scoop up everything in sight and invade people’s privacy.

Beau: Can you talk a little bit about what it was like when Section 702 was being passed? Like, you were there. What was it about and why is it so messed up now?

Wyden: What it was about was fairly straightforward. You were going to deal with what the government said were foreign threats. In other words, we were talking about people overseas. And then as technology got more and more advanced, these searches that were looking at targets overseas started scooping up what’s called incidental collection. You know, scooping up the rights of all kinds of people who were journalists or business people or people with contacts around the world. And it grew and grew and grew. And given the fact that the executive branch said, Hey, this is good for us, particularly over the years Donald Trump said, well, I wanted to check it before I became king. And now that I’m king, I ought to be able to do anything I want. And that’s what he’s trying to do here.

Beau: But the NSA, I mean, these dragnets of data that were being scooped up under the name of protecting the country from foreign adversaries, it did include a lot of Americans’ information. And was there an expectation, at least in the beginning with 702 that, well, that’s true, but they’re not gonna go after journalists, they’re not gonna go after professors?

Wyden: Right. And every year the collection grew and grew. In fact, in the last bill, they said, well, we’re gonna be very careful about sensitive collections. We’re gonna be very careful about this. And then they weren’t. They put on people like Dan Bongino and the like, who really ripped it off. The best way to think about this is we need to modernize the tools for doing this. We’re looking at, I just quoted and you came back to the whole question of AI. The exact circumstances of what’s going to happen if there’s unchecked bulk surveillance and collection of that data as we move to AI, and I think people across the political spectrum are starting now to recognize this. I talked to you about the developments that were different than anything I’d seen in the past, but we’ve got a long way to go. And look, we’re up against what I call the status quo caucus. You know, you’ve got the people in the executive branch who just say, you know, business as usual. We’re gonna have dangerous problems if we don’t do this right away. Have just a classic, you know, straightforward expansion. And I’m saying not so fast. We’re gonna have problems if we don’t do these kinds of practical things that’ll protect people, and you just gave the argument for how this is gonna hurt innovation. And I’ll be making that one too on the floor of the Senate. Thanks for speaking up on it.

Beau: I think it’s a huge thing. The more people think they’re being watched, the more they’re going to be careful about what they’re doing and they’re not… You know? It’s like dancing by yourself, Senator Wyden. If you’re by yourself, you don’t care, but if you think you’re being watched, you’re not gonna come up with a good move.

Wyden: You are not. You’re not gonna innovate, and there’s a lot of need right now to compete with China, and this is gonna be making it harder.

Beau: Well, I look forward to getting the tape of you dancing by yourself that you sent willingly.

Wyden: But I have people dancing with me now for the first time in the house. Republicans, like Congressman Grayson, he’s, you know, been…a lot of those guys are real libertarians and they’re true to principles. They’re pretty conservative. Wouldn’t probably agree with you and I on a lot of stuff, but they wanna check these abuses.

Beau: Well, I think that’s the thing, and I tell you, I’m mystified by Republicans who in the seventies would’ve been appalled by the depredations of privacy that are happening in this country and now are just all for it because they have a political agenda that is well-served by hurting people’s privacy.

Wyden: For the most part, they’re not involved. In the Senate, there aren’t a whole lot of senators formally involved. And then Donald Trump says, I’ve gotta have this. We’ve got a war with Iran. All of these things that sort of threaten these problems and when people like us say, this is going to make it worse, this is gonna make it harder to find a balance so we can have both liberty and security, that’s our best way to check ’em.

Beau: All right. Thank you so much. I really appreciate your time.

Wyden: Lot of fun. Good talking.

Beau: Take care.

Beau: Okay, next up is Kia Hamadanchy, senior Policy Council, ACLU, National Political Advocacy Division. Kia. Thank you so much for joining me on a Sunday.

Kia: Of course. Happy to be here.

Beau: I’m just gonna run you through a bunch of questions real quick, because I know you don’t have a lot of time. The first one, you know, you gave me a statement. And in that statement, you said that the oversight systems have been gutted. What specifically is gone that was there before?

Kia: I mean, to be clear, I mean the previous oversight systems weren’t good enough. Right? But there’s a lot of guardrails that had been removed that I think previously made a lot of Democrats comfortable voting for 702 reauthorization under Joe Biden. One of the big ones is that most of the Privacy and Civil Liberties Oversight Board has been fired. Also, and the FBI’s Kash Patel has closed the office of internal auditing, which has previously been credited for helping to reduce some improper queries. Other things we’ve seen is, the Department of Justice Inspector General is… there are allegations that they are just completely ignoring all sorts of misconduct. Which, you know, raises concerns that, you know, in terms that like if there was a problem with 702, that they would just ignore it. And of course, you know, there’s been purges across FBI and ODNI and all these agencies for like political loyalty, as we’ve seen. Basically, not that we thought these oversight systems were adequate before, but like to the extent that they were helpful, they’ve been completely gutted. And you know, I think that we, you know, just more generally the entire 702 system is based on certifications that Department of Justice makes to FISA court, and this is a Department of Justice that around the country in multiple courts has made misleading and inaccurate representations. And I don’t know why you would trust them here to tell the truth.

Beau: Well, I don’t, and that’s why I’m here on a Sunday and you know, the certifications for sure come up for me because– the one that’s really tricky is the cyber certification because we don’t know if it’s there or not. We don’t know if they ever did get that cyber certification. So there’s things that we don’t have visibility into with regard to how FISA’s is being used. Is that an issue?

Kia: I mean, I think the other thing is because this program is like very classified, like there’s almost always a lag, right? So they just got a new certification for the next year. We’ve heard that there are some problems in the program, but we’ve not seen the certification and we’re not gonna see the certification for months. And so this is the same thing– whenever there’s abuses, they don’t tell us about it till much longer after the fact. So it’s really hard to know what’s going on in real time and Congress is gonna be making decisions about this without knowing this information.

Beau: Now again, it’s a secret court so they don’t have to tell us what their certifications are. You mentioned ongoing violations the government is still actively covering up. Is this like the Black Lives Matter stuff?

Kia: No, so-

Beau: The way ICE is using-

Kia: Basically they’ve been using this tool to do queries, which has led to… that FBI and CIA and NSA. They’ve not been tracking their U.S. person searches. And so that means, one, they’re not complying with the various requirements. Like when it comes to those, like at FBI, they’re supposed to do an audit after the fact of every U.S. person query, you’re supposed to write down the justification for that query. It needs the approval of an FBI attorney. Again, none of those I think are adequate, but they’re not even doing those things. And so not only do we not know how many U.S. person searches they’re doing, we don’t actually know if the abuses are happening because they’re not even tracking the searches. Or they’re not tracking like a subset of the searches essentially. That’s in the certification that’s not public. And all we know about it is basically that and that they’re trying to appeal that to the appeal, the FISA court’s decision.

Beau: What would reform look like in that area?

Kia: I mean, I think it’s pretty simple. It’s get a warrant. 

Beau: Yeah. 

Kia: The Fourth Amendment. The Fourth Amendment applies. You gotta go to a judge and you gotta get a warrant and a probable cause standard.

Beau: All right. So you use this phrase blank check. What does a president like Trump actually do with that blank check that he couldn’t do before because of the way we are right where we are right now?

Kia: Yeah, I mean, I think the truth is we’ve seen this abused across president of both parties. But I mean, I think like the biggest red flag for me is that the strongest proponent inside the administration for authorizing the program is Steven Miller. ‘Cause he views it as essential to what he defines as, you know, his protecting the homeland. This is the sort of person who has been spending a lot of time talking about like the enemy within. And, you know, I’m concerned that in terms of how he might wanna use the program. And you know, one other thing that I note is one of the requirements under current law is that sensitive searches, so those are searches involving journalists and like political figures and and whatnot, need the approval of the FBI deputy director. I will note for you the current FBI deputy director is someone who is an election denier who has last recently seen, you know, overseeing raids of ballots in Fulton County. That’s whose job it is to sign off on these sensitive searches, and that’s not someone I would trust to make those decisions.

Beau: Well, that kind of raises a question. Isn’t the Constitution supposed to be something that operates above personalities? It operates at the level of principles. So like whether or not there’s a bad guy in a certain position, the law is the law.

Kia: Yeah. I forget the exact quote from the Federalist papers, but it was something about if men were angels, we wouldn’t need a government.

Beau: Yeah.

Kia: And that’s why we have things like the Fourth Amendment because men are not angels and-

Beau: And agencies nowadays have proven themselves to be quite the opposite. 

Kia: There’s a Supreme Court case, I think it was 2014. Riley v. California had to do with a search, searching a cell phone that the government had. But there’s a quote in there from John Roberts who said that he is basically, and I’m paraphrasing, but the founders didn’t fight a revolution for the right to government agency protocol, right?

Beau: Yeah.

Kia: So like we have these protections and people should get them.

Beau: So I’m definitely thinking a lot about the data broker loophole out there. And that is how ICE figures and getting data right now, and it has nothing to do with 702, but there are ways in which 702 can be applied to ICE. Can you talk about those?

Kia: Yeah. So, there’s essentially within each, everyone who has access to the database, so that’s like FBI, CIA, NSA, and NCTC, they have like, basically protocols in place. And in terms of if another agency wants to have a search [inaudible] There’s like rules in terms of how they’re supposed to do it, but those rules are quite low. And so ICE could be asking FBI to perform searches for them. And the standard is fairly low to do so. But the problem, and this goes back into the classified part of this is we have no idea if that’s happening or not. 

Beau: Well, we do. I mean, honestly, like we don’t. Like, here on this, we’re being both professional people don’t know that. But me personally, living out here where I live in Connecticut, knowing a cop, I know, they are. I’m sorry.

Kia: I would say everything that we’ve seen with the Trump administration lends to the idea that they’re likely to do so, but I could not, I cannot definitively tell you they are. And again, that’s exactly the sort of thing Congress should be asking about before they reauthorize this program. Like, they should, that there’s an answer to that question. And Congress and Democrats in Congress should not reauthorize this program without among other things, making sure they know the answer to that.

Beau: Well, no, but any, but the problem is they don’t want an answer to that because that’s like opening the walls up in an old house. They’re gonna find things they don’t wanna find.

Kia: That’s exactly true.

Beau: Now, on AI. I want you to be really specific about what changes, you know, when you combine bulk surveillance with AI scale. Like, I don’t think people understand what can happen now.

Kia: Yeah, I mean, the first thing I’m gonna say is that this is an area where we don’t have nearly enough information in terms of how they’re using AI when it comes to 702 holdings. And there was a story today where Anthropic specifically said that there are some of their customers within national security agencies who are using their data on some of the classified holdings, which includes 702. But you know, I mean, I think the thing is when you take these large language models and you’re applying it to these huge data sets, which includes a bunch of U.S. person information, it’s drawing all sorts of inferences and pulling all sorts of things together that we can’t even like fathom, right? Because this technology is brand new and it’s completely just blowing a hole through the Fourth Amendment. And the problem is, if we don’t put a stop to this like right now, once the cat’s out of the bag, it’s gonna be impossible to draw it back in. What Congress should do is put a moratorium on the use of AI when it comes to 702, until they can get more information about how the government wants to use it and decide if that’s in line with people’s rights or not.

Beau: I think that seems to me like something that should and can, should be easy to tack on to this reauthorization. Just the AI thing. Just like, how about this? Until we know exactly how, or you know, data can be recombined and organized by a large language model, let’s leave it alone.

Kia: Yeah. Well, that’s what I say. Until you come to Congress and ask for their permission. And Right? And you know, obviously we wanna know how they wanna use it and make sure that’s in compliance with the Constitution, but also that’s not something the executive branch should be deciding by itself.

Beau: Yeah, of course. Now, the FBI is a special case because they’re both an intelligence agency and a law enforcement agency. So the way that the 702 data enters into their system is a little different from other agencies. And because of that, there are questions about the way they access it and ask and query it. 

Kia: There have been proposals to, in terms of like just cutting the FBI off entirely from this database because of how many problems there’s been. Now we, I mean, which we would be fine with of course, but I, in terms of U.S. person information, but I was gonna say like, but at the end of the day, what we really want here is to make sure that if you wanna access a U.S. person’s [inaudible], you gotta get a warrant. It’s what the Fourth Amendment requires. And like, we gotta stop saying just trust the people in charge. They’re not gonna abuse anything. Because we’ve seen time and time again that that’s not true.

Beau: No. I mean, laws were made because people are imperfect. You’ve been on the hill fighting for a warrant requirement. What do you think’s gonna happen this time around?

Kia: It’s gonna come down to what our friends in the House of Freedom Caucus decide when this comes up for a vote. Probably Tuesday, right? I mean, I think that the last time around, obviously the White House is pushing for this, and Trump was on Fox this morning talking about FISA. And this came, when this came up last night, there were about 20 house Republicans who held the line and said no, and said, you know, we think you should get a warrant. And you know, I think that they stood up to the pressure from the White House on that and they should be commended for that. And what they’re gonna do on Tuesday, I have no idea. I think, I hope that they’re gonna continue to stay strong and we’ve worked with a lot of those offices and if they do, I think that opens up the path to getting reforms like a warrant.

Beau: So I heard, you know, I know that Ron Wyden wrote a classified document and it’s in a skiff right now. What do you know about it, Kia?

Kia: So there is a classified legal opinion in terms of how 702 is being used. And Ron Wyden has said this is really concerning. You know, me myself, I know absolutely nothing about what it means and about it, but the fact that Ron Wyden says it’s concerning raises red flag for me. And it’s absolutely the sort of thing that should be public before Congress votes to reauthorize this program. Right? That this is something that implicates the rights of Americans and like it shouldn’t be done in the dark. We should know what we’re doing. And you know, it’s a legal opinion, like legal opinions, questions of the law should never be classified. Right? This is about how they’re interpreting the law.

Beau: Yeah. I mean, and there, I don’t know if it has anything to do with the March 17th finding by the FISA court that there was compliance problems, but like, if there’s compliance problems right now and they’re not being disclosed, how are you supposed to vote?

Kia: Exactly. And the thing is, right, like it’s one of those things that you don’t necessarily learn about unless you’re on the intelligence committees, right? And so your rank and file member of Congress, this is not something they spend a lot of time with. And thankfully we have someone like Senator Wyden on the Senate Intelligence Committee who is really, you know, working hard to get this stuff out there. But unfortunately, a lot of the members on the Intel committees tend to be in the pocket of the intelligence community.

Beau: Ron Wyden has been fighting this fight for 20 years, two decades. Kia Hamadanchy is in D.C. fighting in the trenches right now on the hill over these issues, but I wanted to understand how the whole thing actually works under the hood, or at least part of the whole thing. And for that, I needed somebody who knows that kind of stuff, an empty wheel, speaking of hoods, I don’t think that’s the same kind of wheel. Somebody I’ve followed for many, many years immediately came to mind. I called Marcy Wheeler.

Marcy: I mean, like, the difficulty comes because there has never been, and this is both in the law enforcement and the intelligence side, there has never been a rethinking of what a database search means, right? So the FBI and the entire intelligence community is sitting on all of this data and also ICE, right? Are sitting on vast swaths of data and some of it’s from old criminal cases and some of it’s from 702 and we don’t have a fourth amendment framework for the intrusiveness of that query of a query that checks databases of all of this information. And so we talk about this risk in terms of 702. We talk about it in terms of, it’s a search. And that is really where the disjunct between the intelligence community and real people starts, is that the intelligence community doesn’t consider that a search. They consider it just a database query. Whereas, you know, for all intents and purposes, if you take my name and put it into a database, you’re doing a search. You wanna see all of the suspect ties I might have in the FBI’s database records, and that’s where things start to fall apart. And that disjuncture has never even been attempted to be addressed ever. You know, it’s like we always avoid this when we do 702 reauthorization. There’s not a Fourth Amendment context to address that. And it would be nice to have– that that would do more, in my opinion, to protect privacy than having this ongoing debate about warrants to do queries on Americans. And here’s another thing that I would do. You know, I think that this is like so high level that, but again, the FISA context, either you reinforce the wall between intelligence and law enforcement, or you get rid of the FISA court altogether. Because one of the things about having a FISA court, about being able to appeal fast track, about being able to keep these decisions classified– And we’ve seen this with classified applications of location for a while– this is gonna surprise people, but for a while it was easier to get location data on the FBI criminal side than it was on the FISA side because the way the FISA court- But there are two different sets of legal precedents, and that is one of the reasons why they like to keep things on FISA because they don’t have to– you can’t challenge legal precedent if you don’t know it exists.

Beau: They can’t. And they can’t. And that’s gonna keep the law enforcement side from getting separated from the intelligence side. That’s what’s gonna keep it from happening. ‘Cause we don’t have visibility into the problem and people aren’t– 

Marcy: I mean like if there is a problem like buying location data. You know, when ICE buys location data, here’s the other problem with it. When ICE buys location data to snatch grannies from Mexico, that is never going to get challenged in a court because that granny from Mexico has far fewer due process rights than a criminal defendant. Because she is not being prosecuted as a criminal, she won’t get def- she won’t get discovery of how they snatched her, and so her attorneys won’t be able to challenge the means by which they snatched her.

Beau: A hundred percent. All right, well, we’ll see what happens on Tuesday. Marcy Wheeler, thank you so much for talking to me today.

Marcy: Yeah. Good to talk to you.

Beau: Okay, so you got that? I know it was a lot of information to take in, but I think what you need to understand is that the stakes are really, really gigantic and they have to do with your privacy. And so if you’re concerned at all or you want to know where your local lawmakers stand on this, today is the day to call them up. Call up the office of your local representative and say you’re concerned about the reauthorization of FISA and in particular section 702. You want to make sure that you are not going to get targeted and that no American is going to be targeted in a way that is very much protected by the US Constitution. Kia Hamadanchy from the ACLU put it really well.

Kia: So tomorrow if this program didn’t exist and you heard tomorrow that Donald Trump wants not the authority to collect communications, a lot of them which will be Americans; we won’t even know the number of how many Americans communications are getting pulled up under this program. And then he’s gonna be able to go through those communications and search them without a warrant of any of the Americans whose communications has been gathered. No one in their right mind would vote to do that. And that’s essentially what’s on the table right now.

Beau: Before we go, there’s one question nobody in this debate will answer, and I reached out to Bob Lord, who worked at CISA and Lauren Zabierek. They couldn’t make it today, but it’s really digging at me, and I don’t think there’s a knowable, I don’t think there’s a way to know what is going on here. But what we don’t know is whether there’s an active certification authorizing upstream collection specifically for cyber purposes. And that matters. What does that mean? It means like, well, the certificate means that all the intelligence community can take a phenomenal amount of data in order to track cybersecurity risks. That’s malware. It’s code. It could be… in other words, they would have an excuse to just do a dragnet and suck everything into their system. But we don’t know if that certificate exists. If there is, the government central claim that 702 doesn’t result in mass surveillance becomes very hard to sustain because the upstream cyber collection doesn’t work like targeting a terrorist email address, right? It works like, well, think about how Stuxnet, the worm that got into, around the world, into everyone’s machine until it infiltrated Iran’s centrifuges. Think about how that worked. It works on a bigger level, and the surveillance would be bigger and more inclusive. It means monitoring traffic across the internet, all of it. Which means monitoring American communications, infrastructure, all of it. Congress is being asked to reauthorize this program without knowing the answer to that question. And that’s not oversight. That is a totally different kind of blank check. But again, like, it’s a blank check in theory because we don’t even know if that certificate exists. And this is the thing, is like the less we know, the more I know it’s unsettling. It’s really unsettling. And now it’s time for the Tinfoil Swan, our paranoid takeaway to keep you safe on and offline. Everything you just heard about is the government’s ability to collect your communications without a warrant, at least in theory. This week’s takeaway is really simple: download Signal. It’s an app. The Signal app. It’s super important. It’s free encrypted messaging. That means even if your communications get swept up in a dragnet, there’s nothing there to read. End to end encryption means only you and the person you’re talking to on the other end can see what’s being said. Not your carrier, not your ISP. And as far as we know, not the NSA. So be open, be careful. Be ready. Stay safe and see you next week. Thanks so much for listening. This episode of What the Hack was produced by me and Andrew Steven, who also did the editing. What the Hack is a production of DeleteMe, which was picked by the New York Times’ Wirecutter as the number one personal information removal service. You should be using it already. If you’re not and you want to, well, you can. Here’s what to do. Go to joindeleteme.com/wth. That’s joindeleteme.com/wth and get 20% off. I kid you not. 20%, 20% off. That’s joindeleteme.com/wth. Now, stay safe out there. See you around.

Learn More:

• See where your data is exposed with our free scan.
• Learn more about data brokers and how they misuse your data.
• Read the companion article for this episode from Beau Friedlander.