Yesterday, you reported some more details from these documents that Snowden has been sharing, including the fact that “Microsoft has helped NSA to circumvent its encryption to address concerns that the agency would be able to intercept web chats.” I’m quoting directly from the story. So it’s not just that NSA is intercepting emails and data, but there’s actually more and more proof that these companies have been working hand-in-hand with the NSA.
Right. The relationship between the private telecoms and Internet companies and the NSA is one of the crucial components of this entire story. The NSA really can’t do that much spying domestically or internationally without the ongoing cooperation of these private corporations. So with the revelations that we’ve published in the past week and a half – with Laura Poitras reporting in Der Spiegel about mass spying in Germany, in Europe, and the reporting that I did with O Globo in Brazil about a similar collection of communications in Brazil and Latin America, more broadly – the linchpin of all of this is that there’s some large telecommunication company, an American company, exploiting their partnership with foreign telecommunications companies to use their access to those countries’ systems to direct traffic back to NSA repositories. Domestically, the same thing is happening. All these companies like to say they only cooperate with the bare minimum way under the law with the NSA, but what the documents we published yesterday and reported on demonstrate is that Microsoft has continuous and ongoing meetings with the NSA about how to build and construct new methods for enabling unfettered access to the calls and emails and Internet communications that the NSA specifies that they want, and the technicians at Microsoft work hand-in-hand with the technicians at NSA to enable that, and that is really at odds with the public statements Microsoft and Skype and Outlook have made to their users about what they’re doing to protect their privacy.
Are these actions technically legal? What’s the implication that we should be walking away with? That there was “just” hand-in-hand cooperation, or that there was something illegal that’s being done?
Well, first of all, hovering over everything is always the Fourth Amendment, regardless of what Congress says is legal. The Fourth Amendment constrains what Congress and the government are permitted to do. One of the arguments from privacy activists and the ACLU and other groups has always been that the new FISA law, which was passed in 2008 with the support of all parties in Congress including President Obama, which was designed essentially to legalize the illegal Bush-Cheney warrantless eavesdropping program, is unconstitutional. And there have been all sorts of lawsuits brought to argue that this law that Congress passed is unconstitutional, and yet no court has been able to rule on the merits of it, because the Obama administration has gone into court repeatedly and said two things: Number 1: All this is too secret to allow courts to rule on, and Number 2: Because we keep everything so secret, nobody can prove that they’ve been subjected to this spying, and therefore nobody has standing to contest the constitutionality of it. So there’s this huge argument out there, which is that all of this is illegal because it’s a violation of the Constitution, that the Obama DOJ has succeeded in preventing a judicial answer to.
Secondly, under the law, the U.S. government is free to intercept the communications of anybody they believe with 51 percent probability is not a U.S. citizen and is not on U.S. soil. So they’re free to go to any of these Internet companies or just simply take off the cables and fiber-optic wires that they have access to, whatever communications they want of anybody outside the United States who’s not a U.S. person, and oftentimes those people are speaking to American citizens. The NSA is free to invade those communications without having to go into a FISA court and get a specific warrant, which is why when President Obama said nobody’s listening to your calls without a warrant, he was simply not telling the truth. That was completely false and deceitful, what he said, because even under the law, the NSA is allowed to intercept communications with American citizens without getting a warrant. The only time they need a warrant is when they’re specifically targeting a U.S. person, an American citizen or somebody on U.S. soil. So it’s a scandal in that – not just that they’re violating the Constitution, but also what the law allows, because of the level of abuse that it entails.
As you’ve pointed out in the last few weeks as well, this is about American citizens, but it’s also about non-American citizens, right? It’s about world citizens. A number of people have written stories about how it really tends to affect those who are much more vulnerable under American foreign policy and domestic policy – Muslims of various backgrounds. But it also affects Brazilians, the French, the Germans, and so it’s an international scandal. What has been happening in Brazil with regards to these revelations?
Right, so let me just say one quick thing about domestic versus international. Even domestically, there are indications that the law has been violated. I mean, the bulk collection of telephone records of all Americans, for example, has been done under Section 215 of the Patriot Act, which even the Republican author of that [Jim Sensenbrenner] has said they never imagined it would enable bulk collection of records. It was only supposed to lower the threshold to be able to get specific records of people who were targeted with investigations.
But internationally, the response is so much different than it is in the U.S., you know in the U.S. there’s this obsession with what are Edward Snowden’s personality flaws: Why is he choosing the countries that he seems to be wanting to seek asylum from? Should the journalists involved in reporting these stories be arrested?
Everywhere else in the world, the focus is on the actual substance of the revelations, which is why should we allow the U.S. and its allied governments to construct a ubiquitous spying system that basically destroys privacy globally for everyone on the planet who uses electronic means to communicate. And in Brazil, ever since we published these stories last weekend about mass spying on Brazilians by the millions, in terms of emails and phone calls, it has completely dominated the news cycle of the political class. Not just in Brazil, but in Latin America generally there are formal criminal investigations underway to determine the culpability of Brazilian telecoms, to find out the identity of the U.S. telecom who enabled all this mass access into the telecommunication systems of Latin America. There’s real indignation and a genuine debate over privacy that is taking place throughout the world, much, much more serious and more substantive and profound than the one that has been led by American journalists inside the U.S.
I noticed the president and other high-level political officials in Brazil said that there were chills running down their spines when they were reading that Brazilians were being spied on [note: Actually, it was stated by Argentine President Cristina Kirchner]. Presumably the French government and the German government were also startled about it, but they don’t seem to have had as strong a reaction. Do you think that there’s a definite difference in degree or quality of response from the Brazilian government versus some of the Europeans, or that it’s pretty much on the same level?
I think that a lot of the indignation expressed by European governments is completely artificial and manipulative, designed to show their populations that they’re angry about this, when in reality they’re not. In part because they participate in many of these U.S. spying programs, and in part because Eur
opean governments are incredibly and completely subservient to the dictates of the U.S. So, we saw that very vividly, when the French and the other EU states spent a week, you know, parading around, showing how angry they were at what the U.S. had done, but then immediately obeyed American orders to deny airspace rights to a plane that they thought was carrying the person who had allowed them to learn about this—Edward Snowden. And they did it by taking the very extreme step of denying airspace rights to a plane carrying the president of a sovereign state, Bolivia, and sparking anger in the continent, over what felt to them — Latin Americans — like the standard type of racism, colonialism and imperialism that they have been subjected to by the U.S. and its Western allies for… for centuries. And so, I think that the true colors of the E.U. states with regard to all of these issues was revealed very clearly in that incident, although the populations of the E.U. are genuinely angry. The contrast of Latin American governments is very stark. They are genuinely angry, because they weren’t aware of any of this; they weren’t participating in it, and often they were the targets of it. And so I think the repercussions of these stories is going to be very long term, and still has yet to be really appreciated, just in terms of the wedge that it has placed between the U.S. and these governments, and the change in how populations around the world think of the U.S. government.
So, Microsoft is still evil. Okay, that’s not so much news. It is interesting to learn that the reason Skype sucks so much worse is, in part, due to ensuring that every call is a conference call with the NSA. Greenwald deserves a Pulitzer Prize, at the very least.
