HH: One individual who is, is Conor Friedersdorf, staff writer for The Atlantic, been writing about this extensively. Conor, welcome back, always good to talk to you.
CF: Good to talk to you, too. Thanks for having me back.
HH: Well, let’s start with your premise. You were upset by the NSA and the PRISM. Both of them, or one or either of them?
CF: Certainly both of them.
HH: All right, now tell people why.
CF: Well, so many reasons. One of them is that the Obama administration has built this infrastructure that could be very easily abused by either a president or by even employees within the national security system who wanted to abuse the rights of Americans. It’s true that the program to spy on Verizon customers doesn’t actually take their, the content of what they’re saying, the voices and their phone conversations. But even the meta-data, the list of who is calling who, and when they’re calling and how long the calls are lasting, you know, that’s pretty sensitive information. And we’ve seen a lot of information leaking from the Obama administration and the Bush administration before it. Wikileaks is a pretty good example of that. We had a whole trove of very sensitive information that was just kind of put out on the internet en masse by one guy, by Bradley Manning, right? So imagine if the Chinese were to hack into the database of just years and years of the most private information about Americans’ communications. Their email, according to the stories about this PRISM program, files that they’ve sent over the internet, we’re talking about something that could enable massive blackmail, political manipulation, industrial espionage for foreign companies if they were to get their hands on this data. And you have to ask yourself, do you trust the federal government that wasn’t able to protect the secret that this was happening, that wasn’t able to protect the Wikileaks deal. Do you trust them from being able to protect this data indefinitely, because they plant to keep it indefinitely, store it on a server somewhere?
HH: So Conor, if, let’s use the PRC as your example of a potential looter of the private archives, if the PRC was interested, for example, in Conor Friedersdorf, wouldn’t they just go after Conor Friedersdorf as opposed to trying to break into the NSA? Wouldn’t targeting you be much easier than targeting it?
CF: Well, we’re talking about a data set that is all inclusive, at least we know of that’s all inclusive of Verizon customers. And it would seem strange if the Obama administration just sent an order like this to Verizon.
HH: I know, but that’s not responsive to my question. If you’re worried about a Chinese hack of a data set, wouldn’t they go after the individual that they want to surveil, because if, as you know, if you’re going to steal something, if you want to burglarize a house, you don’t go in and take everything out of the house and sort through it later. You go in and get what you want. So isn’t it easier to go after Conor Friedersdorf as opposed to the NSA if you’re the PRC?
CF: Look, going after me just gets my measly one email account, right? Certainly, it would be more valuable to have, you know, so the unit that we have the order for, that we know they went after, is Verizon Business, right?
HH: Well, I assume they’ve got everything. I think that’s a red herring. Just assume they’ve got everything.
HH: …and that they’ve got every phone call and every piece of transmission. Just assume it’s in PRISM, and I’m just not worried about it, because I assume that the problem you’re thinking about is a problem that exists to anyone who uses any electronic communications, because bad guys, like the PRC, go and get that stuff.
CF: Right, but there’s a difference between having to go and get individual information on every single individual and having it all in one big trove. And I’m not sure why you’re not worried about the government’s ability to protect this whole big trove of everyone’s data that could be got in one hack.
HH: Because if the Chinese are the ultimate bad guy here, if they’re Dr. Strangelove on the cyberwar, they’d just go get Verizon’s, and they’d get AT&T’s, and they’d go get Apple’s, and they’d go get Google’s, because if you can hack NSA, you can hack anybody. And in fact, it would be probably a bad thing for the Chinese to go after NSA, because that would alert the NSA that the Chinese are doing that. So I’m not worried about foreign governments with regards to this. But tell me if you are worried about the United States government abusing, Conor Friedersdorf.
CF: Of course. You know, I don’t know that the Obama administration is going to abuse it tomorrow, or that the next administration, two administrations from now, who knows who’s going to be president. We’re talking about a data set that they’re planning to keep permanently. And as we’ve seen with the IRS, there are people in the federal government who are willing to abuse data. It wouldn’t be the first time it happened. It’s just that the particular data that they would have access to would be a lot more damaging.
HH: Sure, but there are bad cops. Once in a while, you’ll get a bad cop, and that doesn’t mean we have to stop having police. And so while there might be a rogue IRS group, or groups, and it looks like it’s very high up, and it looks like it may be in the White House, but it is one agency, and then you could point to the DOJ and Holder lying under oath, or you could point to…
CF: Right, right, but the flaw in your analogy is that if we didn’t have any cops, we would have a society that descended into anarchy. If we didn’t have a massive database of all of the private communications in the United States, we would return to a status quo that we’ve lived under and prospered under for the whole history of our nation.
HH: Well, that actually brings me to what I’ll be talking about with Andrew McCarthy after the break. Quazi Mohammed, Rezwanul Ahsan Nafis wanted to blow up the New York Federal Reserve in October of last year. Mark Anthony Grady wanted to blow up the Wainwright Building in August of last year. Amine El Khalifi wanted to blow up the Capitol in February of last year. Sami Osmakac wanted to blow up various targets in Tampa, Florida in January of last year. In September of 2011, Rezwan Ferdaus wanted to blow up the Pentagon and the Capitol. These are just Obama era. Farooque Ahmed wanted to blow up the Washington area subways in October of 2010. Do you not believe there are threats in the United States, Conor, by Islamist terrorists who are trying to kill people?
CF: Of course, there are threats, and of course, we need to spend a lot of money in order to stop all of the terrorist attacks that we can, so long as we do so in a way that’s consistent with living as a free society, with rights to privacy and rights to Constitutional protections.
HH: Well, the Supreme Court’s already ruled, and so did the Foreign Intelligence Surveillance Court, that these are legal collections of data. So if we go along…
CF: But that isn’t entirely clear to me. The author of the Patriot Act, Sensenbrenner, says that he doesn’t think that these are legal collections of data.
HH: Sensenbrenner has no standing to make that claim outside of a court proceeding. We have a system set up to do this. I don’t like their decisions sometimes. I’m probably not going to like their decisions on the marriage cases. I didn’t like their decision on Obamacare. But the courts decide these things, not ex-chairs of Judiciary committees.
CF: Well, the Court has not reviewed this particular action, and I don’t think we know enough about it to know…
HH: Well look, the Foreign Intelligence Surveillance Court is the court that does this, and I was the Attorney General’s special assistant for a year on that, and they’re very serious about what they do, and they take it very, very seriously. So for the time being, there is no Constitutional argument to make. That may be made eventually…
CF: Wait, wait, hold on. Of course, there is. The FISA court, like all courts, can make a mistake and be overruled by a higher court.
HH: Sure. But for the time being…
So there is a Constitutional argument to be made.
HH: That’s just wild speculation for the time being, Conor. If you go over and read at Volokh, there are a lot of the Con Law professors who are debating, and they’ve all come to the conclusion for the time being there is simply no basis to argue it’s unconstitutional. You can argue you might not like it, but assume for the moment that they are right and FISA is right, and not The Atlantic staff writer or the talk radio host. Just…
CF: Well, look, the case that the Volokh people are making is premised partly on the notion that we don’t have all of the facts, and that the Obama administration is doing a lot of this in secret. And we only have this one order that leaked to the Guardian. So no, we can’t conclusively say that it was unconstitutional.
HH: Well, yes, we can.
CF: …in part, because it’s…
HH: We can presumptively…I’m not saying conclusively. Until the Supreme Court gets it, you can’t say conclusively. Presumptively, it is Constitutional, because it has been issued by a court. Now that may be turned around. I just want to know policy-wise, you could change it. And my question is, how serious do you think our security will be compromised if we stop doing this, because I think it would be a massive blow to our domestic security. And I am unaware of a single instance where this information has been abused by the government to hurt an individual, although of course, Bradley Manning…
CF: Well, we just found about it this week. How would you know of the instances when it’s been abused?
HH: Well, you know, if someone had stepped forward and said earlier than this, this is a leak of a classified program, I’ve always objected to that, but if anyone existed, we would know that story of the government using and abusing someone with privately used information. I’m unaware of it. Do you? Are you aware of one instance?
CF: If there is someone in the National Security Administration who tapped into someone’s data wrongly, even though they weren’t suspected of any terrorist acts, if they stepped around the strictures of the program, why would you possibly know about that?
HH: Well, that would be wrong.
CF: It’s a secret.
HH: I’m just saying, you’re absolutely right, we may not know that it happened, but I am unaware of a single case in which it has happened that has been discovered to date, and this has been around for seven years. Are you aware of other than in fiction or novels of this ever actually happening to hurt an individual?
CF: No. It would be much easier to hide the fact that it happened to an individual than it would be to hide the whole program. They succeeded in hiding the whole program for years. So I assume that they would have a very easy time hiding an individual…
HH: Thousands of people knew this program existed. Thousands. Do you think none of them would have turned in, not one would have been a whistleblower if it had been abused, Conor?
CF: There have certainly been abuses in the government that went unexposed longer than were in the NSA…
HH: Non-responsive. I’m telling you, I think you’re going Chicken Little on me, Conor, real Chicken Little on me. But come back in a couple of weeks and we’ll update it.
End of interview.