A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center in the Washington suburb of Fort Meade, Maryland.

A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center in the Washington suburb of Fort Meade, Maryland.

Two years ago, leaks by former NSA contractor Edward Snowden revealed the agency was using the Patriot Act to justify collecting the phone records of millions of Americans. Defenders of the program say bulk collection of metadata is needed to prevent terrorist attacks. But critics of the program say it’s been largely ineffective and violates privacy rights. On Sunday, the Senate voted to move forward with a House bill that would replace the Patriot Act and end the NSA’s bulk data collection as we know it. We look at what’s in the new law and the debate over how to balance national security and the privacy rights of Americans.

Guests

  • Shane Harris Senior correspondent, The Daily Beast; Future of War fellow, New America; author of "At War: The Rise of the Military-Internet Complex" and "The Watchers: The Rise of America's Surveillance State."
  • Stewart Baker Attorney at Steptoe and Johnson, former general counsel at National Security Agency, former assistant secretary of policy at Department of Homeland Security.
  • Marc Rotenberg Executive director, Electronic Privacy Information Center; professor of information privacy law at Georgetown University Law Center
  • Rep. Jane Harman Director, president and CEO of the Wilson Center; former chair, House Homeland Security Subcommittee on Intelligence

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Last night, the Senate voted to move forward on a House bill that would end the NSA's controversial bulk data collection program. Under the new plan, phone records would remain in the hands of phone companies and could only be accessed with a court order.

  • 10:07:17

    MS. DIANE REHMHere to talk about what's in the House bill, chances of passage in the Senate and the future of the NSA's surveillance program, Marc Rotenberg. He's with the Electronic Privacy Information Center. Shane Harris of "The Daily Beast" and Stewart Baker of Steptoe and Johnson. I invite you to be part of the program as always. Give us a call at 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or send us a tweet.

  • 10:07:57

    MS. DIANE REHMThank you all for being here.

  • 10:07:59

    MR. MARC ROTENBERGGood morning, Diane.

  • 10:07:59

    MR. STEWART BAKERGood morning.

  • 10:07:59

    MR. SHANE HARRISGood morning.

  • 10:08:00

    REHMGood to see you all. Shane Harris, take us back to last week. What happened then and what happened last night?

  • 10:08:10

    HARRISRight. So last week, the Senate tried to muster enough votes to move forward on this House bill, the USA Freedom Act, which would end the NSA's bulk collection of telephone data and modify the Patriot Act in other ways. And at that point, they were about a week out from the expiration of these key provisions of the Patriot Act. Well, they could not muster enough votes to get what's called cloture, which would've shut down any attempts by Senator Rand Paul to filibuster or to go on at great length and try and procedurally just sort of tick the clock down.

  • 10:08:39

    HARRISSo the Senate sort of look at this and said, well, we don't have the votes to get cloture. There's no clear alternative path over here for us right now. We're gonna go on recess for a week. And Mitch McConnell said, we're gonna come back a day early, so that was last Sunday night, and literally with hours on the clock ticking down before these provisions of the Patriot Act expired. And what was clear, I think, when they came in last night is that there was really no other way forward short of letting these authorities expire indefinitely than to take up the House measure and to vote to move forward with that.

  • 10:09:10

    HARRISSenator Paul tried some procedural motions to continue running out the clock and then ultimately Mitch McConnell looked at his fellow senators and said, look, this is where we are. We need to move forward on this. And they took up the same vote on cloture again and this time, got 77 votes for it, as opposed to 57 the previous time. So overwhelmingly in favor of moving forward and I think it's probably a foregone conclusion, at this point, they'll come back on Tuesday or Wednesday and finally pass the USA Freedom Act.

  • 10:09:37

    REHMSo explain briefly how the USA Freedom Act differs from the Patriot Act.

  • 10:09:46

    HARRISRight. So the big changes are that it ends what's called this bulk collection of, you know, in this case, mainly of phone records, but any other bulk collection that might be going on pursuant to these different provisions of the Patriot Act. And it will also inject some more transparency features into the Patriot Act so the government will be required to disclose when this intelligence surveillance court that meets in secret, when it comes up with interpretations or the rulings that are novel or present new interpretations of the law and it will also appoint individuals who will go before the court to sort of act in a little bit more of an adversarial position, sort of arguing the other side when matters that impinge on privacy or constitutional issues come up.

  • 10:10:28

    HARRISBut by and large, it leaves intact, I think, a lot of what was in the Patriot Act before, including provisions called roving wiretaps and this so-called lone wolf provision, which I'm sure we'll get into, that have not been as controversial as the bulk phone collection, but really have been lightning rods for the entire existence of the Patriot Act for civil libertarians and privacy activists who say these are authorities that the government doesn't need and that go too far. Those will stay intact under the USA Freedom Act.

  • 10:10:55

    REHMStewart Baker, what do you think of these changes?

  • 10:10:59

    BAKERI think most of these changes are for the worse. They will make it much harder to break up the kinds of plots that we had on 9/11, which is a very elaborately planned attack where you get very little warning. The bulk metadata program was designed to provide warning of that kind of an attack launched by someone who has a safe haven. There hasn't been a safe haven until the last couple of years for terrorists, but now there is and we're getting rid of one of our warning mechanisms just as the threat has increased.

  • 10:11:35

    REHMAnd what do you think, Marc Rotenberg?

  • 10:11:39

    ROTENBERGWell, I think this is not so much a debate between those who favor national security and those who favor privacy. I think this really comes down to the careful review that many expert groups have pursued over the last couple of years. And they've all reached the same conclusion and that is that the NSA's bulk record collection program was simply not effective. That was the conclusion of the civil liberties oversight board, the president's review group, the Senate judiciary committee, which held several hearings last year and even the inspector general for the FBI.

  • 10:12:08

    ROTENBERGThere's really no evidence here that this program has made Americans any safer and I think that explains why there was such support in the House to pass the USA Freedom Act. Lots of Democrats, lots of Republicans. Now, I will say as Shane indicated, the civil liberties and privacy groups are not entirely happy about the Freedom Act because one of the ways that the surveillance capability is carried forward is it's moved away from the NSA, which is a step in the right direction, but now places a mandate on the telephone companies, basically, to make their call detail records surveillance friendly so that they're easily accessible by the government pursuant to a legal authority.

  • 10:12:52

    ROTENBERGNow, as I said, I think that's better than the NSA sitting on top of all the telephone records, but it's hardly ideal and the risk of ongoing privacy intrusion in this model under the Freedom Act is still quite significant.

  • 10:13:06

    REHMShane, you mentioned the lone wolf provision and the roving wiretap provision. Are they going to be maintained?

  • 10:13:19

    HARRISThey will if the Senate comes back as expected and votes for the USA Freedom Act. So as we speak right now, they have expired. So the authority to go get new roving wiretaps, new lone wolf provisions under the Patriot Act is gone. They can't go do that right now. Any investigations that began prior to the expiration are still moving. And there are other ways that the government could, if they really had an emergency, I think, come in with existing surveillance authorities and collect information, but those provisions will come back if the Senate votes for USA Freedom.

  • 10:13:48

    REHMHow much of all this is Rand Paul's true concern about the Patriot Act and how much was it politics?

  • 10:13:59

    HARRISYeah, I think that's really one of the great and very hard questions to answer here. I do think that -- I mean, having followed Rand Paul on this and reported on this for some time -- that he does have genuine concerns about the extent of surveillance and what he sees as overreach by the federal government. It is also the case that he is running for president and that this sort of libertarian position resonates with his base and has sort of uniquely distinguished him, I think, among a very crowded Republican field.

  • 10:14:26

    HARRISYou know, I would love to be able to sit down with him and ask him truly and honestly, you know, last night, were you basically going to the barricades for this because you really believe it or because you feel that you had no choice politically but to push this all the way to the edge. It may be a little bit of a mixture of both, as it is with all these things.

  • 10:14:41

    REHMWhat do you think, Stewart Baker?

  • 10:14:43

    BAKEROh, I think this is the one thing that he really believes in and the one thing he would do as president is get rid of these surveillance programs and, in my view, would be an irresponsible act and this suggests that maybe the apple doesn't fall very far from the tree, that he's more his father's son than we had imagined.

  • 10:15:04

    REHMYou agree, Marc?

  • 10:15:06

    ROTENBERGWell, I think Senator Paul has been a courageous leader on this issue, but even more so than thinking about his statement as a particular position, which I know we have a tendency to do here in Washington, I think Senator Paul is actually speaking to what it means to be an American. And in a debate over civil liberties and the scope of national surveillance, you do talk about the constitution. You do talk about what the framers intended.

  • 10:15:28

    ROTENBERGYou do talk about the fact that Benjamin Franklin wrote a privacy law, that Thomas Jefferson was a cryptologist and it's a very powerful way to understand the importance of privacy in this country.

  • 10:15:39

    REHMAnd Stewart Baker, what do you say to those Americans who've been really, really concerned about their bulk data being collected?

  • 10:15:50

    BAKERSo this data is gathered by law enforcement a million times a year and the reason it was gathered in bulk was because it will not exist when we need it if we simply let that phone companies hang onto it and won't be easy to search. It's the difference between using Google, which is what the current program or the just lapsed program allows, and being told, well, that's all right. You can go to the library and look up whatever you needed to find on Google. It just won't work as well.

  • 10:16:22

    REHMSo how quickly or how long will it take to gather data, suspicious data?

  • 10:16:31

    BAKERIt will require -- as far as I can tell, it will require the government to go to all the carriers and potentially give them a list of every single number that we believe is a terrorist number in the Middle East or elsewhere in the world, hand them that immensely sensitive information and ask them to let us know if there have been any calls to those numbers and then to try to combine all of that information and send information about who was called by someone who used those numbers in order to construct a picture of who they might be conspiring with.

  • 10:17:08

    BAKERIt's a very difficult IT task that, as far as I can see, we haven't fully solved.

  • 10:17:14

    REHMYou're wrinkling your nose, Shane.

  • 10:17:15

    HARRISWell, I mean, I don't want to contradict Stewart too much on some of this, but I mean, when I talk to intelligence officials about this, this is a compromise they can live with. That's the other thing we should emphasize. Is this a perfect solution? No. Would they rather have the data? Absolutely, yes. But I think, from their point of view, if, in the revelations of Edward Snowden and all of these controversies that this is the one program that they lose, they consider themselves very lucky because the metadata program actually was not used that much.

  • 10:17:41

    HARRISAnd officials I've talked to have said that it's more trouble than it's worth. It's become a political liability and putting the data at the phone companies, while not ideal from their perspective, is not as bad as they think it could have been.

  • 10:17:53

    REHMShane Harris, he's senior correspondent for "The Daily Beast" and author of "The Watchers: The Rise of America's Surveillance State." When we come back, former Congresswoman Jane Harman joins us. Stay with us.

  • 10:20:01

    REHMAnd joining us now from her office here in Washington, D.C., Jane Harman. She's director, president and CEO of the Wilson Center, former chair of the House Homeland Security Subcommittee on Intelligence when she represented California's 36th District. Welcome Jane Harman. Good to have you with us.

  • 10:20:30

    REP. JANE HARMANHi, Diane. Always good to hear you. This is a fabulous program.

  • 10:20:34

    REHMThank you.

  • 10:20:34

    HARMANAnd I'm honored to be on it.

  • 10:20:35

    REHMOh, thank you, Jane. You served on the committee that drafted the original Patriot Act. What's your reaction to the Senate vote last night?

  • 10:20:47

    HARMANWell, let me, if I could, just back up because there's some prehistory that is relevant and I haven't seen it anywhere. And that is, that after 9/11, the Bush Administration, in its first term, invented a program to collect metadata but did so in a highly secret way, not in conformance with the Foreign Intelligence Surveillance Act. That was important because there was no public debate about that program at the time. I was the senior Democrat on the intelligence committee, was in the so-called Gang of Eight and briefed on this program.

  • 10:21:24

    HARMANBut I was told in these briefings it was legal. Legal meant, however -- I learned later, once the program was declassified -- meant it conformed to some legal opinions at the Justice Department. It did not conform to the Foreign Intelligence Surveillance Act. So we came to the 2008 events in the Senate, in the Congress, with this background. And we tried -- we changed FISA to include the program that had already been invented. There wasn't enough debate at the time. And I want to make that point. And I'm happy that we're having a complete debate now. It's important. The country needs to buy in to programs like this. And I think the country will.

  • 10:22:04

    HARMANThe vote last night was important because it now sets up, Tuesday or Wednesday, the consideration by the Senate and the possible amendment by the Senate of this House bill, the USA Freedom Act, which passed by an overwhelming majority in the House. That's a significant achievement. I think the Freedom Act is a good bill. Could it be better? Sure. But the legislative process is an imperfect process. And so I hope that the Senate, Tuesday or Wednesday, will accept the House bill or offer some amendments which the House will accept.

  • 10:22:39

    REHMGoing back a bit, when did you first become alarmed at the damage the NSA was doing via the bulk collection program.

  • 10:22:51

    HARMANWell, I don't know that I would call it damage, if what you mean by that is using the law that Congress passed in a broader way than Congress envisioned. I became aware of that, I believe, after I left Congress. I left Congress in 2011, in my ninth term, to head the Wilson Center. But the -- I don't want to characterize it. The expansion of the program was something that the FISA Court understood. And again, there is no evidence that I'm aware of, of abuse of this bulk collection. I said already that I support the House bill, which would move collection or move the retention of metadata back to the telephone companies. And I think that's a good idea.

  • 10:23:43

    HARMANI also am well aware that the courts have ruled that the collection was over-broad. And I think the end result is going to be, at the end of a public debate, a law that people are much more...

  • 10:23:56

    REHMHmm.

  • 10:23:56

    HARMAN...comfortable with, and a set of practices that will still get us necessary information. And so I think that's a win for the country.

  • 10:24:03

    REHMBut I gather the Snowden leaks certainly perked your ears up.

  • 10:24:12

    HARMANYeah. Yeah. I don't condone what Snowden did. I don't call him a whistleblower. And I think he stole our technology playbook and that made it much easier for bad guys to do things that they are now doing. They have engaged in robust use of social media and other ways to recruit. And this is hugely dangerous. So the only thing that I view as an upside of what Snowden did is that now the public is clued-in, in a way they weren't in 2008, to these programs. And we are having a robust debate that we should have had at the beginning of the Bush 43, first term, right after 9/11, when these programs or the metadata program was conceived of in secret by a few people in the White House.

  • 10:25:08

    REHMI think Shane Harris has a question.

  • 10:25:10

    HARRISWell, I think the -- and Jane Harman just sort of answered it, which was, I mean, the question of -- the history of this as she laid out is accurate. That for a long time, Congress and certainly the American public did not know how the government was interpreting many of these authorities. And what I think is so notable about the Snowden leaks, regardless of where you come down -- whether you thought they were a good thing or a bad thing, that he was responsible or irresponsible -- exposing these programs changed the political climate in which we have these conversations.

  • 10:25:36

    HARMANYep.

  • 10:25:37

    HARRISAnd you can no longer just anticipate that Congress is going to sort of willingly go along with reauthorizing the Patriot Act, that they have in the past, or that the American public won't be deeply skeptical of these authorities and the benefit that the government claims that they derive from them.

  • 10:25:50

    HARMANI totally agree with that comment. I think there has to be public buy-in. We are, after all, a democracy. And the legislative process -- and this program is authorized under a law, the Foreign Intelligence Surveillance Act is one where there is public participation. So, yes, this is an upside. And should we all march in lockstep and say that what Congress passed in 2008 was perfect? No, it wasn't perfect. And could it be better? Yes. And I think the process we're going through now, sadly that has been a little more convoluted than I would have liked it, will get us to a better place. And I do believe that there will be an amended law that will pass Congress this week.

  • 10:26:32

    REHMMarc Rotenberg.

  • 10:26:34

    ROTENBERGWell, I think that's a hopeful outcome, of course. Because the NSA bulk collection program, I think, came to most of the public as a real surprise. And regarding Mr. Snowden's disclosure, it was in fact the very first disclosure, which was the order from the Foreign Intelligence Surveillance Court to Verizon that said, turn over all the telephone records of all your customers. People looked at that, they actually couldn't believe. Members of Congress, Representative, looked at that and said they couldn't believe that the law authorized it. And when we had that recent decision, a very good decision, from the Second Circuit Court of Appeals, you know, we felt vindicated. Because when that order came out, people said this is not what Congress intended.

  • 10:27:16

    BAKERI can't help pointing out that...

  • 10:27:18

    REHMStewart Baker.

  • 10:27:19

    BAKER...that what Snowden did and the journalists who worked with him, is they did -- they engaged in an abuse that they've often accused the intelligence community of engaging in. They withheld -- they released the most shocking order and withheld for two weeks, using classified information, the fact that it was classified, to all of the protections for privacy that had built -- been built into the program, shaping the debate for two weeks. And frankly, the program has never recovered from that very cynical misuse of classified information.

  • 10:27:52

    REHMJane Harman?

  • 10:27:54

    HARMANYes. Well, was that Stewart -- Stewart Baker?

  • 10:27:56

    BAKERYeah.

  • 10:27:56

    REHMYes. Stewart Baker.

  • 10:27:58

    HARMANHi, Stewart, a very careful and credible and important participant in the history of all this. Well, you heard me with my views on Snowden. I think the one plus of Snowden was -- is that we're having this robust debate that we should have had more than 10 years ago. Was the rollout by Snowden and his sympathizers orchestrated to achieve their objective? You bet it was. And I'm also still not persuaded that the two governments who have let him live among them, China and Russia, aren't exploiting this data in ways that are harmful to us. So I -- I view Snowden as largely negative. But to say again to the participants on this call, I view the public debate as largely positive.

  • 10:28:52

    HARMANAnd, no, I didn't anticipate that there would be this extensive collection of bulk data by the government. I did not, when I was one of the architects of the 2008 amendments to FISA. But on the other hand, there has been absolutely no proof that the -- that this bulk data was abused. I think we'll all be more comfortable, except for a few people in Congress, when it is transferred carefully from the government to the telephone companies and maybe some more protections are put in place -- also that the data is preserved and the transfer is protected. Those would be good additions. But I think the public has spoken and I applaud the public for speaking.

  • 10:29:35

    REHMMarc Rotenberg, you say there's an even larger constitutional issue here. What has the Supreme Court said about the NSA's collection?

  • 10:29:51

    ROTENBERGWell, the Supreme Court hasn't yet addressed the NSA's collection. And many of us, I think, on both sides of the debate will be interested when that happens. The NSA has relied, so far, on a 1977 case, Smith versus Maryland, where the court concluded that the reasonable expectation of privacy in our Fourth Amendment, which does protect the content of our communications, does not protect the record of our communications. It drew a line, in effect, between the content and the transactional data. That was a case, as I said, in the 1970s. It involved one individual. It was from the era of the rotary phone. It was, you know -- it's just hard...

  • 10:30:39

    REHMWay back when. Yeah.

  • 10:30:39

    ROTENBERGIt's just hard -- it's just hard to describe quite what an antique this is in the realm of constitutional law. But it is the decision upon which the NSA has rested the entire legal authority for the program, saying in effect that when we collect all of the telephone records on all Americans, we don't trigger any Fourth Amendment interest. And I think the view of many people today is that, if the court gets the opportunity to review that holding, which it likely will, I think it will reach a different decision.

  • 10:31:12

    REHMStewart Baker.

  • 10:31:13

    BAKERI think it's foolish to ask the court to judge this technology and to decide whether the move to touch-tone phones should change our sense of privacy. What has happened in many of these cases is, when a particular argument has seemed to the American people to go too far about what the government should have, Congress has stepped in and has written many laws regulating in a much more fine-tuned way than the Supreme Court using the blunt instrument of the Constitution could to what the government can get access to and what they can't.

  • 10:31:45

    HARMANI'd just like to add to that, if I could, that the technology has way outpaced even Congress' ability to legislate or even, P.S., to understand it. And this is something that's urgent. As the bad guys get more and more able to use public media. And as it's described to me, Diane, please shudder in place, they now have a form of NPR which is used as a recruiting tool to get people to their cause. Let's not call it NPR. Let's call it...

  • 10:32:20

    REHMNo, let's not.

  • 10:32:20

    HARMAN...something that has some relationship to a public broadcast -- but not yours, not the one we all love -- to recruit people to their cause. We have to think very carefully about what our laws are. And obviously they have to comport with the Constitution. That is the Supreme Court's role. And, yes, that old decision is antique. But to underscore one thing that everyone needs to know, the content of these calls is not kept. This is a record that they occurred. In order to listen to the content of calls, a warrant has to be secured under the Foreign Intelligence Surveillance Act, FISA, from the court, from the Foreign Intelligence Court, which is a federal court. And so the Fourth Amendment is protected.

  • 10:33:10

    HARMANI know some people on this broadcast think it isn't protected enough. And my answer to that is, we all have to work on this. The Constitution is a living document. Technology has way outstripped our ability to keep up with this. And we don't want -- nobody on this call wants people to have tools that they can use against us and we can't protect ourselves. So we've got to evolve something that protects privacy and security at the same time. It's not a zero-sum game here. It's a positive-sum or a negative-sum game.

  • 10:33:40

    REHMAnd you're listening to "The Diane Rehm Show." I want to open the phones, because there's a call here specifically in regard to you, Jane Harman, while you were in Congress. Rob, in D.C., you're on the air.

  • 10:34:03

    ROBHi, thanks for having me on the air. I appreciate the opportunity to bring up something that hasn't been raised yet. Diane, you and the folks there and your listeners may remember that when Jane Harman was in Congress, she was in fact the subject of an NSA wiretap. And, in fact, the situation at the time was that Ms. Harman was trying to become the House Intelligence Committee head. She was speaking to some folks who she was trying to get their support. She was recorded by a court-approved NSA wiretap. When the news about this came out, Ms. Harman was very upset about it and really decried that the FBI was looking into this. The FBI never brought any charges against her.

  • 10:34:55

    ROBThe New York Times, Time Magazine, a number of other outlets have reported that that's because of the close relationship that she had with the Bush Administration. And it was, in fact, Alberto Gonzales stepping in over the objections of FBI investigators that prevented any kind of action from happening. And I think that it's important to remind folks about that and encourage them to look it up.

  • 10:35:23

    HARMANWell, this is Jane Harman responding. Not only did the Justice Department tell me I was never the subject or target of any investigation, but the House Ethics Committee said the same thing. Those are allegations, Rob. They were never proved. I view this as a smear campaign against me. And I won five elections afterwards. The people in my district assessed the information. And, you know, my view is, yes, can government overreach. You bet. And this was a perfect example of it.

  • 10:35:54

    REHMMarc Rotenberg.

  • 10:35:56

    ROTENBERGI wanted to go back to an earlier point that Stewart had made. It's one of the rare opportunities, I think, where I get to agree with him. And so I want to seize this moment and note that Stewart said, this is really an issue. We were talking about the role of the Supreme Court and defining the Fourth Amendment. And he said this is really something that Congress needs to do. And I agree with you.

  • 10:36:14

    BAKERMm-hmm.

  • 10:36:14

    ROTENBERGI mean, I think -- I think the Supreme Court needs to make clear that there is a constitutional interest in our telephone records. But then Congress needs to step in, as they did with the Federal Wiretap Act, to make clear what that means. So there's our moment, Stewart.

  • 10:36:28

    REHMAll right. I want to ask you, Jane Harman, a final question. Since we have not, thank heaven, had a major terrorist attack in the U.S. since 9/11, how much do you think the Patriot Act played a role in that? Are we or could we be at greater risk now, with major parts expiring?

  • 10:36:57

    HARMANWell, you know, how do you prove a negative, Diane? This has been discussed in the last week or so. If this expires, is the country vulnerable? I know the White House is saying that. I think the country is vulnerable period. And I do think the possibility of lame -- lame duck -- lame wolf -- lone wolf copycat attacks is substantial, especially with these new recruiting tools on social media. I think these programs are important. I think, to remind others, that the other expiring sections are roving wiretaps, which most people agree are necessary. Once you get court approval to look at somebody's communication, if they throw their cell phone in the trash can and use another cell phone, you want to transfer that authority.

  • 10:37:42

    HARMANThe other piece is the lone-wolf protections. I think they should be...

  • 10:37:45

    REHMAgain, I'm afraid we're out of time. Jane Harman, thanks for joining us.

  • 10:40:02

    REHMWelcome back. It's time to open the phones. We'll go first to Spencer in Charlotte, North Carolina. You're on the air.

  • 10:40:13

    SPENCERI had some personal experience with this metadata.

  • 10:40:21

    REHMOkay.

  • 10:40:21

    SPENCERI worked for a bank that no longer exists and I programmed the telephone billing system. And we collected all the metadata. That's the call from, call to and duration and as we were buying other banks, I had to incorporate their data into it, and I had to look at the data every day. And sorting the data around, I came up with some numbers that looked kind of funny. There were 800 numbers. Some of them were 10 minutes, some of them were 20 minutes, some of them were 300 minutes.

  • 10:40:51

    SPENCERSo, I pick up the phone and I dial this number and this sultry voice comes on and asks for a credit card number. And I don't do anything, and then it clicks and then, she starts talking all this dirty stuff. Now, I didn't need to know what people were talking about. I didn't need a recording. All I needed to know was there was something funny going on. I went to my manager the following Monday. Three branches totally were fired. That data is very, very revealing. If I had the data that NSA has, I could make a couple hundred million people in the United States very uncomfortable.

  • 10:41:39

    REHMI should say.

  • 10:41:51

    ROTENBERGThat's actually a very good example. And going back to that Smith vs. Maryland case from the 1970s, there was a famous dissent in the case, where one of the justices said, you know, who we call says as much about us as what we say when we call. And it can be a business associate, it can be a therapist, it can be a minister. The fact that a phone number is so easily identified as your caller described with a person who you're calling underscores the privacy interest.

  • 10:42:16

    BAKERSo, my concern about this is that there's no doubt that metadata can tell you a lot about someone. That's why this program was so carefully restricted to only a few hundred searches conducted annually under great privacy protections. Including the fact that names were not associated with the numbers in the database. And I think the story also shows why it's sometimes important to have the metadata. He was trying to protect the bank's budget and the bank's reputation.

  • 10:42:16

    BAKERAnd if employees were calling these 800 numbers and having 300 minute sex discussions when they should be doing bank work, it's perfectly fair to investigate and fire them.

  • 10:43:03

    REHMAll right. To Jeff, who's in Cleveland, Ohio. You're on the air.

  • 10:43:10

    JEFFOh, hi Diane. Thanks for having me on the air.

  • 10:43:12

    REHMSure.

  • 10:43:14

    JEFFI just have a quick question about the USA Freedom Act.

  • 10:43:17

    REHMSure.

  • 10:43:17

    JEFFFor the court orders, do they require -- do they go through the FISA courts or do they go through traditional courts where probably cause has to be established? Cause FISA courts are notorious for being seen as a rubber stamp and I was just curious.

  • 10:43:32

    REHMShane.

  • 10:43:33

    HARRISYeah, under the Freedom Act, these requests still will go through the Foreign Intelligence Surveillance Court, which has a history of approving most of the requests that go before it. But it does send back, I think, roughly a quarter of the requests for modification. Now, importantly, what the USA Freedom Act will also do is require more reporting, both about the requests that are being send that affect company data and also any decisions that are novel or important that bear on legal interpretation that the court issues.

  • 10:44:02

    HARRISSo, the court will have to open up a little bit more about its sort of secret practices. And its opinions and rulings.

  • 10:44:08

    REHMHere's an email from Andrew. He says, why should I believe metadata stored at the phone company will be more secure than having it stored by the NSA?

  • 10:44:27

    ROTENBERGWell, that's the privacy concern, and I think that's the reason why people are still very troubled by the Freedom Act, even with some of the good provisions that Shane just mentioned a moment ago. We're still creating a situation where a lot of data will be kept on Americans, that the companies themselves wouldn't choose to keep and that the customers wouldn't choose to keep. So the question is, why is the data being kept? And of course, the argument is, in anticipation of some future investigation.

  • 10:44:50

    REHMBut here's another question along that line. What happens if the phone companies refuse to store the bulk collection of phone calls? Can the government force the phone companies to store it?

  • 10:45:06

    HARRISNot in the current language of the statute. There is nothing in the Freedom Act that says how long they have to keep it. Federal regulations require phone companies to keep some sets of records for regulatory purposes and billing purposes for about 18 months. But I talked to a number of intelligence officials in the past week who said, what's to stop these phone companies from, as soon as they can delete the data, deleting it, and then creating television commercials that come out and say, here at Company X, we value your privacy so much that we delete your records so that government can't get them.

  • 10:45:34

    HARRISThat is an anxiety, I think, among people in the intelligence community right now.

  • 10:45:40

    BAKERI think that's quite right and it doesn't even require that the industry take that view. It would only require two or three companies to start advertising, we get rid of your data and then anyone who's got terrorism on the mind will use those companies and not others to make their phone calls.

  • 10:45:57

    REHMNow, here's a different point of view, an email from Lee. Who says, number one, finding terrorists is like finding a needle in a hay stack. To find the needles, you find the hay stack. Bulk data collection is essential to our security. He follows that with this statement, a citizen's privacy rights are diminished by the citizen when they choose to appear in public. The internet is a public space. By logging on or posting data, citizen is entering a public space should expect that data to be public property. The same is true of the spectrum phone companies use for communications. Marc Rotenberg.

  • 10:46:52

    ROTENBERGWell, I simply think that's not right. I mean, we would all think of our telephone records as private and confidential. I know very few people, actually, who take their telephone records, scan them, post them on the internet and say, look at all the people I called during the last month. Our expectation is that they should be kept in private. And as to the hay stack and the needles, I think just about everybody has concluded we have way too much hay. You just cannot find needles when you're constantly being inundated by the amount of hay that the intelligence community has received from the US telephone companies. They've made the same point themselves.

  • 10:47:28

    REHMLet's go to Lewisville, Texas. Hi there, Brett. You're on the air.

  • 10:47:35

    BRETTHi Diane. Thanks for, you know, taking my question.

  • 10:47:38

    REHMSure.

  • 10:47:38

    BRETTOr my comment. This, to me, points to a much bigger problem that we're facing in America, and that's that Americans have really stopped trusting the American government. I mean, that, to me, is the real issue here. It's like, for the past few decades, I think the government has given us a lot of reasons not to trust them, and that, to me, is what the real issue is here.

  • 10:47:57

    REHMShane.

  • 10:47:57

    HARRISYeah, I agree with that. And I think that this, I mean, the just trust us line, if it was ever really that credible, I think no longer is. And I think that Senator Paul, while many people even in his own party, are upset with him for what they see as grandstanding and delaying (unintelligible) in the Senate, he is giving voice to a very significant portion, I think, of the American public that is very skeptical of government overreach and authority. And is only finding out that they learn about what the government's been doing through press leaks and through people coming forward like Edward Snowden.

  • 10:48:29

    HARRISSo, it's no longer the case that we can just expect that people are going to sort of willingly accept that these authorities are necessary. They're going to be a lot more skeptical.

  • 10:48:38

    BAKERI agree with this, if you're talking about the base of each political party. It has a substantial body of people who are just opposed to government, especially on civil liberty grounds. I continue to believe that the bulk of the American people do trust their government and want them, above all, to take action to protect them against terrorism. What, I think, the people who are listening to this call should derive from that is if you believe this is a governmental responsibility, you have to speak up. Because neither party, right now, is completely standing up for providing the protections that we want.

  • 10:49:18

    REHMAll right, to Cape Coral, Florida. Hi Steven.

  • 10:49:24

    STEVENHi Diane. My question is regarding people who are citizens of this country should not fear their government. But, and the government should fear the people. But I think with the surveillance methods that they have, quite frankly, I think citizens are afraid of their government. Dissent in this country is getting stifled and you can tell that by the reporters that were targeted during the Obama fiasco. And that the ability to release information that is classified, quote classified, is being curtailed.

  • 10:50:18

    HARRISYou know, there was an interesting study from Pugh that just came out. It was a poll on American surveillance views that found, this is the point that I found really interesting, a third of respondents said that in the wake of revelations by Snowden, they had taken some steps to try and shield their personal information from the government. Now, whether that's people just telling pollsters what they'd wish they'd done or that accurately reflects something.

  • 10:50:40

    HARRISIf a third of people in this country are really that distrustful of their government, that they're taking some kind of measure to shield their private information, I think that does speak to some anxiety that is here in the public right now.

  • 10:50:50

    REHMMarc.

  • 10:50:50

    ROTENBERGI think another key point to take away from your caller's comment and the Pugh Poll is that privacy is a cross cutting issue. It's an issue that Democrats and Republicans, left and the right, urban and rural people all across the country feel strongly about. Now, there's disagreement to be sure, but it's always been remarkable to me that when these debates come up in Washington, the groupings are not predictable. The people who come together on this debate, I mean, Senator Leahy in the Senate and Congressman Sensenbrenner in the House both felt quite strongly that this law did not authorize the bulk collection of American telephone records.

  • 10:51:29

    ROTENBERGAnd to Jane Harman's point earlier, I think there is also, you know, good news this week. There's good news in the end of the NSA bulk record collection program, which came about in part because of disclosure and public debate and our political process. And it may be an imperfect outcome, but it is an outcome that's made possible when we're given the opportunity to debate these issues.

  • 10:51:52

    BAKERI don't think you can really look at the debate we're having and say the people fear their own government. They're perfectly capable of insisting on changes that the government would not have made and my memory of the Pugh Study was not that people had made changes to protect their privacy from the government, but just that they had taken some steps to protect their online privacy, principally clearing their search cache. Which probably reflects more worry about what their spouse is going to be finding than what the government is going to find.

  • 10:52:26

    REHMBut Stewart, as to the House bill, do you believe it will make Americans less safe than the US Patriot Bill?

  • 10:52:40

    BAKERI'm afraid I do, because what we're doing is we're saying let's just throw out some haystacks, even though we know there are needles in there. And they really have no other way of quickly assembling that data and searching it. And for all the claim that we're doing the intelligence community a favor by giving them less data to process, this was a data processing task that was well within the capabilities of the community that now will simply cease to exist.

  • 10:53:10

    REHMAnd you're listening to "The Diane Rehm Show." Shane Harris, what do you say to Stewart's concerns?

  • 10:53:20

    HARRISWell, I mean, I can only say the sources that I've talked to on this will say a few things. First of all, the bulk metadata program, as I said earlier, is not one that NSA is necessarily shedding any tears over. It was rarely used. I think it sort of falls in the category of it's a nice tool to have. It's not essential for stopping terrorist attacks. As far as these other provisions that we've talking about, roving wire taps have been used sparingly. The most recent data we have is that 11 were used, I think, in 2013.

  • 10:53:48

    HARRISAgain, falls in the good to have, but there are other authorities you could probably use to get it. And as far as the lone wolf provision, it's never been used. The administration confirmed that last week, so I think that when we see, you know, the sort of limited nature of some of these tools, my personal view on this, my conclusion is that no, it does not make us remarkably less safe because the phone companies are now holding the data instead of the NSA.

  • 10:54:07

    REHMAnd finally, to Tyler in Baton Rouge, Louisiana. You're on the air.

  • 10:54:14

    TYLERThank you so much for having me. It's an honor to be on your show.

  • 10:54:16

    REHMThank you.

  • 10:54:17

    TYLERI had just a quick kind of comment/question. I think it's just funny that we constantly pass bills like the USA Freedom Act and the Patriot Act that have misleading names. It's taking away Americans' freedom to have the privacy of their own phone calls without anyone collecting it at all. And it just seems very unpatriotic to pass a bill that watches its citizens more than it really should. I mean, it just doesn't make that much sense to me that you would want to pass bills like this, that kind of just go counterintuitive of what the message is by the title.

  • 10:54:45

    REHMPoliticians are very clever that way, aren't they Marc?

  • 10:54:49

    ROTENBERGYes. I think George Orwell also had something to say about the use of language in situations like this.

  • 10:54:55

    REHMWhat do you think, Shane?

  • 10:54:56

    HARRISYeah. I mean, look, the Patriot Act, and I can't even remember what the actual acronym for it is, or what the USA Freedom Act stands for either, but clearly, you know, politicians are trying to wrap these laws in American values. Including just national security values and privacy values. So, I mean, there's an element of marketing that goes on with these bills.

  • 10:55:13

    REHMSo, how long is it going to take -- you call this the Zombie Patriot Act. Shane, what do you mean?

  • 10:55:22

    HARRISWell, there are provisions even within the bill, within the Patriot Act itself that would allow sort of retroactively using some of these authorities, so I mean, it's not as if at the stroke of midnight, last night, suddenly, the sky fell and we were going dark on terrorist targets. There are a lot of ways that this bill kind of continues going. What's going to happen now is that the Senate will come back Tuesday, maybe Wednesday, and ultimately vote on USA Freedom and there were 77 votes in favor of the cloture motion. I would predict you'll see a similarly wide margin of support to ultimately pass the bill.

  • 10:55:54

    REHMSo, why didn't they pass it last night?

  • 10:55:57

    HARRISWell, they didn't pass it last night because, I mean, A, Rand Paul sort of ran the clock down a bit, but this gets into really the weeds of Senate procedure here. But when the Senate puts forward a cloture motion to end debate, it has to sit for 30 hours, according to the rules of the Senate. So, basically, it was a foregone conclusion owing to the particular rules of the Senate, which is very particular, as you know. That you would not be able to reach a final closure and a final vote within the deadline.

  • 10:56:24

    REHMWell, I think we understand a little more about the differences and what's likely to happen. Thank you all for being here. Marc Rotenberg, executive director of the Electronic Privacy Information Center. He teaches Information Privacy Law at Georgetown University Law Center. Shane Harris of the Daily Beast. His book is "The Watchers: The Rise of America's Surveillance State." And Stewart Baker. He is the former General Counsel at the National Security Agency, former assistant secretary of policy at the Department of Homeland Security.

  • 10:57:18

    REHMAnd of course, Jane Harman, Director, President, and CEO of the Wilson Center. And thanks to all of you for listening. I'm Diane Rehm.

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