NSA: Tip of the ICEBERG so far

NSA: Tip of the ICEBERG so far

THE ABSURD TIMES

 

We’ve been pretty quiet lately for a number of reasons.  For one thing, the weather has become a bit more tolerable.  But more important, so many things have been going on that there was no way for us to keep you up with them and we have also assumed that many of you had other avenues of information anyway.  Finally, not much of it has been very funny.

The paramount disclosure still has to do with the #nsa and the monitoring of everything.  There was a great stir caused by the Snowden disclosures and we know that more is to come.  None of this has been surprising to us and any reader of this publication could hardly have been surprised.  However, the recent revelations about the British being involved were a bit new.  The fact that our government pays them to do spying for us is not all that shocking, but it is something we had never really thought much about.

Recently a source in Ron Wyden’s office said that what has been revealed was just the “tip of the iceberg”.    Assuming that he was not merely using a handy cliché, it indicates that there is 90% remaining.

For example, if we had even thought about it, we would have assumed that the British and the Germans, probably the French and all of NATO sends us information.  The idea that we would actually SHARE anything with anybody never really occurred to us, although we would not have been surprised after a bit of thought.

After all, all of this is being done for the benefit of international capitalism and that knows no borders.  Putin in the Russian Federation is no stranger to capitalism at all, but he did grant asylum to Snowden.  We can only wonder why and one answer is that it makes him look macho to his constituency.  In addition, when both Russia and China were double-crossed by the United States in the UN, they became much more hesitant to allow for invasions of other countries – the case of Libya.

Yes, we know about Snowden and only a part of what he divulged has been made public.  After the Brits kept Glenn Greenwald’s partner for 9 hours in Heathrow under an anti-terrorism law (it did not apply, btw.), they then went to the Guardian Newspaper and made the paper destroy all their hard drives pertaining to the NSA. 

Clearly, they are idiots.  These files are digitally stored, copied, and distributed all over the world in various places.  Destroying a few physical hard drives could do nothing at all to do anything but make them look more ridiculous.  Some of their material was encrypted.  Obviously, they can decrypt them and probably have done so.  Encryption is much like an old adage about locking a locker in a Chicago High School – it keeps the honest people from stealing things.  The only possible reason from doing this destruction of hard drives could be to get it in the papers that the British people are now safe from, whatever.

Well, Glenn Greenwald has established himself and needs no publicity or further mention here.  What we have are a could of other interviews establishing the same pattern. 

And guys: do you think the #nsa knows how long your dick is?  Gals:  do you think the … .  [You fill it in -- I can’t come up with anything profane or funny enough use here.]

Here are the interviews, Applebaum is the most germane, but all of this is good:

TUESDAY, AUGUST 20, 2013

UK Media Crackdown: Greenwald’s Partner Detained, Guardian Forced to Destroy Snowden Files

The Obama administration has acknowledged it had advance notice British officials were going to detain David Miranda, the partner of Guardian journalist Glenn Greenwald, who has revealed the National Security Agency’s massive spy practices. Miranda was held Sunday at London’s Heathrow Airport under Section 7 of the British Terrorism Act for nine hours — the maximum time he could be detained without charge. Miranda has just announced legal action against the British Home Office for his detention. Meanwhile, The Guardian has revealed the British government threatened legal action against the newspaper unless it either destroyed Snowden’s classified documents or handed them to British authorities. "At its core, what is at stake is the ability for a human being to have dignity and for journalists to have integrity with their sources, [threatening] the whole concept of a free democracy," says computer security researcher Jacob Appelbaum, who has been detained and questioned numerous times at airports. "And I don’t mean that as hyperbole, but if everything is under surveillance, how is it that you can have a democracy? How is it that you can organize a political function, or have confidentiality with a constituent, or a source, or with a friend or a lover? That’s an erasure of fundamental things that we have had for quite some time." We’re also joined by longtime British attorney Gareth Peirce.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AARON MATÉ: As we talk about the issue of student loans, we’re actually going to turn now to the issue of the NSA and the revelations that have just come out with the British government. The British government now is under fire for its detention of David Miranda, the partner of journalist Glenn Greenwald, who has exposed all of these stories on NSA surveillance based on the leaks of Edward Snowden. Miranda has just announced legal action against the British Home Office for his detention at London’s Heathrow Airport. He was held on Sunday as he passed through Heathrow on his way home to Brazil, where he and Greenwald live. Miranda was detained under Schedule 7 of Britain’s Terrorism Act, which allows police to hold someone at an airport for up to nine hours for questioning about whether they’re involved in acts of terrorism. He was detained for the full nine hours allowed and finally released after British authorities seized his mobile phone, laptop, cellphone and USB thumb drives.

Miranda had been in Germany visiting U.S. filmmaker Laura Poitras, who works with Greenwald in reporting on the files leaked to them by Edward Snowden. His flights were paid for by The Guardian, and a spokesperson for the newspaper says he "often assists" with Glenn Greenwald’s work. Glenn Greenwald told The New York TimesMiranda was in Berlin to deliver documents to Poitras related to his investigation into government surveillance and get other documents from Poitras to bring back home.

AMY GOODMAN: On Monday, Miranda described his ordeal upon his return to Brazil.

DAVID MIRANDA: [translated] I stayed in a room with three different agents that were entering and exiting. They spoke to me, asking me questions about my whole life. They took my computer, my video game, cellphone, everything.

AMY GOODMAN: In a statement, the Brazilian government said Miranda’s detention is, quote "without justification." What they said was—what they said, the statement, was—is "without justification, since it involves an individual against whom there are no charges that can legitimate the use of that legislation. The Brazilian Government expects that incidents such as the one that happened to [Miranda] today do not repeat." Greenwald himself said the detention would not deter him from future reports.

GLENN GREENWALD: [translated] I will be far more aggressive in my reporting from now on. I’m going to publish many more documents. I’m going to publish things on England, too. I have many documents on England’s spy system.

AARON MATÉ: The press freedom group Reporters Without Borders issued a statement in response to Miranda’s detention that read, quote, "The world’s most repressive states often identify journalism with terrorism and now the British authorities have crossed a red line by resorting to this practice. ... By acting in this arbitrary way, the British authorities have just emphasized how necessary and legitimate Snowden’s and Greenwald’s revelations were."

Meanwhile, on Monday, the White House confirmed it was notified before Miranda was taken into custody. This is White House Deputy Secretary Josh Earnest.

DEPUTY PRESS SECRETARY JOSH EARNEST: There was a heads-up that was provided by the British government. So this—again, this is something that we had an indication was likely to occur, but it’s not something that we’ve requested. And it’s something that was done specifically by the—by the British law enforcement officials there. The United States was not involved in that decision or in that action, so if you have questions about—if you have questions about it, then I would refer you to the British government.

AMY GOODMAN: The detention of Glenn Greenwald’s partner led his newspaper,The Guardian, to reveal another explosive revelation of media intimidation by the British government. On Monday, The Guardian editor, Alan Rusbridger, revealed the British government threatened legal action against the newspaper unless it either destroyed Snowden’s classified documents or handed them to British authorities. Rusbridger says that after The Guardian published several stories based on Snowden’s material, a British official advised him, quote, "You’ve had your fun. Now we want the stuff back." Two officials from the GCHQ, the NSA’s British counterpart, then visited The Guardian's London offices and looked on as computers containing Snowden's material were physically destroyed. Rusbridger said The Guardian agreed to destroy the hard drives knowing the paper’s reporters can continue their work abroad. He wrote, quote, "We will continue to do patient, painstaking reporting on the Snowden documents, we just won’t do it in London."

Well, for more, we’re joined by Jacob Appelbaum, computer security researcher, developer and advocate for the Tor Project, a system enabling its users to communicate anonymously on the Internet. He has been stopped and questioned numerous times while traveling. We will also be joined by the longtime British attorney Gareth Peirce, who is on the phone with us.

But, Jacob Appelbaum, let’s begin with you. Can you respond to what happened to David Miranda at Heathrow Airport?

JACOB APPELBAUM: Sure. Effectively, what we know right now is that the British government has used antiterrorism legislation inappropriately, as it specifically is the case that when they hold someone under this legislation, they are only supposed to do so to determine if in fact they can make an arrest. The fact that he was flagged before he even got on the airplane and that the U.S. was notified suggests that it was a completely unlawful detention, even under this legislation. So they’re even breaking their egregiously unethical, immoral laws, which is terrible. And for David, I feel for him, having experienced that many times.

AARON MATÉ: Well, Jacob, can you tell us about your own story, your own experience? And, in fact, in this case, you have particular insight because you’ve been detained, and also your partner has been detained, as well, as also occurred to Glenn Greenwald.

JACOB APPELBAUM: Yeah. I mean, so, you know, to describe this process, this is a process of intimidation. Right. And working with Der Spiegel here in Germany, where I am now, I would not want to undergo this process again, so I, for example, am not with you in New York today, specifically because these kinds of intimidation tactics, they work, to a degree. And that is to say, when you’re held in a room, told that you’re a terrorist, your property is stolen, you are denied access to your lawyer, as is the case with David, these kinds of things, they really impact you. And they impact family members. They impact friends and friendships. And they, of course, impact the relationship with a source. It’s extremely difficult to maintain source confidentiality and to be able to keep a promise—which is the core of journalistic integrity—when these types of things are taking place.

AMY GOODMAN: I wanted to bring Gareth Peirce into this conversation. Gareth Peirce is the British attorney who has represented a number of Guantánamo prisoners, speaking to us on the telephone now. Can you explain what this Schedule 7, this Section 7, of the British law is and how it was that David Miranda was held under this terrorism clause?

GARETH PEIRCE: From what one can judge, the stopping and use of the Schedule 7 provision of the Terrorism Act in his case is completely unlawful—was unlawful, is unlawful. The power given at a point of entry, at a port—and only at a port—is for a police officer or an immigration officer to have an unusual degree of power; however, it’s limited. It allows that officer to satisfy himself or herself that the person he’s examining is not involved, directly involved, in the instigation, commission of acts of terrorism. It’s very specific. And that person has to be the suspect. It’s an unusual power in that it doesn’t allow the person to have a right against self-incrimination. It’s the one point within the jurisdiction in which you are required, if you are the interrogatee, to answer questions, on pain of a criminal penalty if you fail to answer. So you’re required to answer, and it’s for that very specific purpose.

Now, if it’s used for an ulterior motive, then it’s unlawful. And there have been succession of legal challenges to its use. It’s not the first time that those stopping someone have done so to put questions from another agency or for the purpose of trying to put right an inquiry that was based upon torture of that individual abroad, trying to effectively launder the interrogation through some more jurisdictionally friendly means. But the courts have said an ulterior motive and an ulterior purpose is not permitted. And it’s absolutely clear how come those who stopped Mr. Miranda—how can they possibly, possibly have said that they required to satisfy themselves he was not directly involved in instigation or commission of acts of terrorism?

AMY GOODMAN: Gareth Peirce—

GARETH PEIRCE: It’s a million miles from—

AMY GOODMAN: I wanted to go to yesterday’s news conference at the White House. This is a reporter questioning Josh Earnest, the White House spokesperson.

REPORTER: You talked about the Mubarak detention as being an Egyptian legal matter. You talk about Morsi—politically motivated detention. And then with regard to Mr. Greenwald’s partner, you called it a mere law enforcement action. Given that the White House has never been shy about criticizing detention policies overseas, do you have any concerns at all about the U.K.’s law enforcement action in this case?

DEPUTY PRESS SECRETARY JOSH EARNEST: Well, what I can say is I don’t have a specific reaction other than to observe to you that this is a decision that was made by the British government and not one that was made at the request or with the involvement of the United States government.

REPORTER: So—but you’re not going to go as far as to say it’s wrong or it’s cause for concern? You’re just separating yourself entirely from it?

DEPUTY PRESS SECRETARY JOSH EARNEST: Well, I’m separating—what I’m suggesting is that this is a decision that was made by the British government without—you know, not at—without the involvement and not at the request of the United States government.

AMY GOODMAN: That was the spokesperson at the White House, Josh Earnest. Gareth Peirce, if you could respond to that and also this extraordinary story that The Guardian has just revealed, that they were forced to destroy the hard drives that had the Snowden documents on them, the documents that he had leaked.

GARETH PEIRCE: Well, I think that the attempt to—the denial, the deniability of the involvement of our two governments jointly or mutually lacks credibility now, at this point of time, given the primacy with which our intelligence agencies have been unlawfully conducting surveillance on all of our citizens. However, it is an improper purpose if another government is feeding in questions and obtaining the product of those questions for purposes that are not defined by the statute, and these cannot have been defined. But you can bet your boots that Mr. Miranda’s phone was taken, its contents copied. Any computer he had would have been taken, its contents copied. And even if they’re given right back at the conclusion of the nine-hour detention—it’s not arrest. It’s not arrest. It’s a detaining, keeping someone for the purpose of examining them. If the police have a reasonable suspicion, they arrest you and have to arrest within nine hours. But that didn’t happen here.

And any challenge, any challenge to this detention would undoubtedly involve the questioning as to the purpose. And if the purpose were revealed, as it has been in more than one legal challenge, to be simply for the purpose of obtaining information of a wide-ranging kind, that makes it unlawful, and will be an interesting exercise were Mr. Miranda to pursue it from now on in. As to The Guardian, maybe they—maybe they are conducting a tactical maneuver—I know not—in order to—it wouldn’t be the first time that the authorities have gone for—took Guardian documentation. They did it a long time ago and used a particularly clumsy mechanism of a production order that The Guardian successfully withstood. However, I don’t know their reasoning, and I wouldn’t comment on that.

AMY GOODMAN: We’re going to break and come back to this discussion. And we’re—Gareth Peirce, we want to thank you very much for being with us, a well-known British attorney, has represented a number of prisoners at Guantánamo, among others. We’re also speaking with Jacob Appelbaum, who is in Berlin, which is where David Miranda was, which is where Laura Poitras is working. As Jacob points out, he cannot come into the United States right now, or is concerned, if he does, what will happen to him. He is a computer security researcher. We’ll be back with him in a moment.

[break]

AMY GOODMAN: We turn right now to a show we did about a year ago that among our guests was Jacob Appelbaum, our guest today, who’s in Berlin, and Laura Poitras. On Sunday, The New York Times Magazine profiled Laura Poitras, the journalist who filmed the Guardian interview with Edward Snowden in Hong Kong and had a byline on two of the key articles about the ongoing NSA revelations. Snowden first reached out to Laura Poitras before Glenn Greenwald. She’s an award-winning filmmaker who’s been discussing issues of privacy and state surveillance for years. Last April, Juan González and I spoke to Laura and asked her to describe the difficulties she faces with immigration officers here in the United States when she returns to the country.

LAURA POITRAS: I’ve been stopped at the border since 2006, since I started working on a series of films looking at U.S. post-9/11. And so, I’ve been—I’ve actually lost count of how many times I’ve been detained at the border, but it’s, I think, around 40 times. And—

AMY GOODMAN: Four-zero.

LAURA POITRAS: Four-zero, right. And on this particular trip, lately they’ve been actually sending someone from the Department of Homeland Security to question me in the departing city, so I was questioned in London about what I was doing. I told them I was a journalist and that, you know, my work is protected, and I wasn’t going to discuss it. And then, on this particular occasion, I landed at Newark Airport, and they—what they do when I’m flying, they do passport control inspection at the gate. So they make everyone who’s deplaning show their passport. And so, that’s how they—

JUAN GONZÁLEZ: So they don’t even wait for you to get to Immigration.

LAURA POITRAS: No, I don’t get—I don’t get into Immigration. I get the escorted treatment from—

AMY GOODMAN: So they make everyone show the passport, until they get to you.

LAURA POITRAS: Right.

AMY GOODMAN: And then they take you off the plane.

LAURA POITRAS: And then they take me away.

AMY GOODMAN: That’s Laura Poitras. What she went on to say is that what infuriated them the most and what they said she couldn’t do was take notes on her detention and the questions she was being asked. That was a fascinating hour, which I encourage people to go to at democracynow.org, which was with Laura Poitras, with Jacob Appelbaum, our guest now in Berlin, and William Binney, who was a top NSAanalyst who quit, another whistleblower, who also—the federal authorities moved in on his house, on his wife, his kid and himself, put a gun to him in the shower, when he was there. Jacob Appelbaum, you are in Berlin right now, where Laura Poitras is. Are you working together? You also did an interview with Edward Snowden for Der Spiegel about a month ago that was published.

JACOB APPELBAUM: Yeah, that’s right. I’m working with Der Spiegel, as well as a number of other publications here in Berlin, as an investigative journalist, while also continuing my work with the Tor Project—two hats. It’s a little complicated, but that’s essentially correct.

AMY GOODMAN: And what do you think is most significant about what Edward Snowden has revealed, and also the treatment of him, as well as others, including yourself, before and since?

JACOB APPELBAUM: Well, as far as what Snowden has revealed, I think when Ron Wyden suggests that what has been revealed is merely the tip of the iceberg, that suggests something extremely terrifying, and that suggests that what Snowden has revealed is in fact just the tip of the iceberg. And what he’s revealed so far is planetary-wide surveillance without warrants, without due process, without just cause, where most of the legislation is either secret or secretly interpreted. And in a few cases where there may be something that resembles judicial oversight, it’s a kangaroo court with no opposition. And the people that are supposed to do oversight in the United States are either corrupted by the process, or they simply do not understand it and are unqualified to be involved in that oversight.

So, for me, when I think of these things, what I see right now is the birth of a generation of, unfortunately, dissidence. When Alan Rusbridger suggests that his journalists must work abroad, that is a terrifying and chilling thought. I mean, there’s a reason that the American government was started, and there’s a reason that the American Revolution shot the British. But let’s be clear. The United Kingdom is a modern, reasonable democracy, in many ways. And the idea that you would, as a journalist, need to work abroad is appalling. But this is also true for other journalists working abroad on this, in the sense that Glenn is in Brazil and Laura is in Germany, I am in Germany. Many people who care about telling these stories are honestly afraid of illegal action, or supposedly legal action, that could result in devastating and horrible outcomes, merely by the fact that the people starting them have a lot to lose and they’re willing to take any action, especially classist action, where you would have to spend your life’s savings, for example, on legal support. So this, to me, is the scariest thing, because what Snowden has revealed is in the public interest, and that, to me, suggests that when the public is in fact interested and the press is suppressed, that is terrifying to imagine it as the tip of the iceberg.

AARON MATÉ: Jacob, as we talk about David Miranda, the partner of Glenn Greenwald, can you talk about what happened to your fiancée in your home?

JACOB APPELBAUM: Sure. I tend to not talk much about this, because it’s not my story. But many people around me, including my partner, have experienced some different kinds of extrajudicial harassment. In her case, it’s the case that she woke up with two men prowling outside of her house wearing night vision goggles, watching her sleep at 3:00 in the morning for about half an hour. We believe that someone was trying to plant a bug inside of her house. And I think this was intimidation. And I feel like either they are the worst, most bungling FBI or other intelligence agents in Seattle, or perhaps they didn’t realize the intimidation would backfire. But this is a kind of state terrorism. And when she attempted to file a police report in Seattle, in fact, the Seattle police laughed her off until we were able to involve the ACLU. And it was only when the ACLU was involved would they even take a police report. That was the third time she tried. And, of course, attempts to FOIA information about this do not return information. We’re being stonewalled even for processing notes about our FOIAs, so the so-called meta-FOIA. And, yeah, I mean, it’s clear that it’s political harassment.

And when I’ve gone through borders, similar to what David has experienced, you know, I’ve actually been, literally, for a time, disappeared by Immigration and Customs Enforcement. For example, when we were returning from Serbia, where I was giving a lecture and she was doing an art performance, the U.S. government literally told her that I did not exist, after they had taken me, and they would not—yeah, it was horrible for her. They would not let her even see me. They wouldn’t acknowledge that they had taken me. They told her she was mistaken, maybe even that she was crazy. And that’s a targeted, specific thing, where they are allowed to lie to you, where they suggest that you do not have a right to a lawyer, where they will withhold a bathroom, where they will threaten you with suggestions of rape in prison. And then your loved ones will also be targeted by this in various ways, especially if they’re traveling with you. They will experience some serious terror.

AMY GOODMAN: Jacob Appelbaum, what is at stake here? Can you explain, for people who are confused? I mean, in the United States, overwhelmingly people think that Edward Snowden is a whistleblower, not a traitor. But talk about what is at stake in the United States and around the world right now.

JACOB APPELBAUM: Sure. I think, at its core, what is at stake is the ability for a human being to have dignity and for journalists to have integrity with their sources. And from that, I believe that it threatens the whole concept of a free democracy. This is, I think, in a sense, being shown in the last 48 hours to the extreme. And I don’t mean that as hyperbole. But if everything is under surveillance, how is it that you can have a democracy? How is it that you can organize a political function or have confidentiality with a constituent or with a source, or with a friend or with a lover? That’s fundamentally an erasure of fundamental things that we have had for quite some time.

And planetary surveillance has very serious concerns, not the least of which is economic espionage, and not the least of which, I think, for me, personally, is about journalistic source protection. I mean, how is it that we will be able to protect our sources if there’s no way to securely meet, no way to communicate about having a meeting, no way to actually communicate about basic facts? There’s no such thing as on or off the record, when in fact you don’t control the record. And it’s not merely a matter of whether or not we have something to hide, because it is not us that will decide whether we have something to hide. It is an analyst somewhere. It is a machine learning algorithm somewhere.

And this is the thing that is perhaps the most terrifying: Because people are flagged, then other people are dispatched. Each person plays their role, and more and more a machine plays that role, a machine that does not understand constitutional protections, does not understand the Magna Carta or the Bill of Rights, does not understand humanity. It’s a machine. And the humans, they behave like machines, too, which is a great fear, that humans will start to behave like machines. And so, what is at stake is in fact democracy, where we still have it, and the free press.

AMY GOODMAN: Jacob Appelbaum, I want to thank you very much for being with us, computer security researcher who himself started to be harassed by government authorities after working with WikiLeaks.

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EXCLUSIVE: Owner of Snowden’s Email Service on Why He Closed Lavabit Rather Than Comply With Gov’t

Lavabit, an encrypted email service believed to have been used by National Security Agency leaker Edward Snowden, has abruptly shut down. The move came amidst a legal fight that appeared to involve U.S. government attempts to win access to customer information. In a Democracy Now! broadcast exclusive, we are joined by Lavabit owner Ladar Levison and his lawyer, Jesse Binnall. "Unfortunately, I can’t talk about it. I would like to, believe me," Levison says. "I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore." In a message to his customers last week, Levison said: "I have been forced to make a difficult decision: to become complicit in crimes against the American people, or walk away from nearly 10 years of hard work by shutting down Lavabit." Levison said he was barred from discussing the events over the past six weeks that led to his decision. Soon after, another secure email provider called Silent Circle also announced it was shutting down.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AARON MATÉ: We turn now to the news an encrypted email service believed to have been used by National Security Agency leaker Edward Snowden has abruptly shut down. The move came amidst a legal fight that appeared to involve U.S. government attempts to win access to customer information.

The owner of Lavabit, Ladar Levison, wrote a message online saying, quote, "I have been forced to make a difficult decision: to become complicit in crimes against the American people, or walk away from nearly 10 years of hard work by shutting down Lavabit." Ladar Levison said he was barred from discussing the events over the past six weeks that led to his decision.

He went on to write, quote, "This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States."

Later on Thursday, another secure email provider called Silent Circle also announced it was shutting down.

AMY GOODMAN: Now, in a Democracy Now! broadcast exclusive, we go to Washington, D.C., where we’re joined by Ladar Levison, founder, owner and operator of Lavabit. We’re also joined by his lawyer, Jesse Binnall.

We welcome you both to Democracy Now! Ladar Levison, let’s begin with you. Explain the decision you made.

LADAR LEVISON: Yeah, well, I’ve—thank you, Amy. I’ve compared the decision to that of, you know, putting a beloved pet to sleep, you know, faced with the choice of watching it suffer or putting it to sleep quietly. It was a very difficult decision. But I felt that in the end I had to pick between the lesser of two evils and that shutting down the service, if it was no longer secure, was the better option. It was, in effect, the lesser of the two evils.

AMY GOODMAN: What are you facing? When you say "the lesser of two evils," what was the other choice?

LADAR LEVISON: Unfortunately, I can’t talk about that. I would like to, believe me. I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore, which is why I’m here in D.C. today speaking to you. My hope is that, you know, the media can uncover what’s going on, without my assistance, and, you know, sort of pressure both Congress and our efforts through the court system to, in effect, put a cap on what it is the government is entitled to in terms of our private communications.

AARON MATÉ: For those who aren’t familiar with what encrypted email is, can you walk us through that and talk about what your service provided?

LADAR LEVISON: Certainly. You know, I’ve always liked to say my service was by geeks, for geeks. It’s grown up over the last 10 years, it’s sort of settled itself into serving those that are very privacy-conscious and security-focused. We offered secure access via high-grade encryption. And at least for our paid users, not for our free accounts—I think that’s an important distinction—we offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user’s password, so that, you know, even myself couldn’t retrieve those emails. And that’s what we meant by encrypted email. That’s a term that’s sort of been thrown around because there are so many different standards for encryption, but in our case it was encrypted in secure storage, because, as a third party, you know, I didn’t want to be put in a situation where I had to turn over private information. I just didn’t have it. I didn’t have access to it. And that was sort of—may have been the situation that I was facing. You know, obviously, I can’t speak to the details of any specific case, but—I’ll just leave it at that.

AMY GOODMAN: NSA leaker Edward Snowden recently described your decision to shut down Lavabit as, quote, "inspiring." He told The Guardian's Glenn Greenwald, quote, "America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not."

Snowden went on to say, quote, "When Congress returns to session in September, let us take note of whether the internet industry’s statements and lobbyists—which were invisible in the lead-up to the Conyers-Amash vote—emerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress."

Ladar, you were the service provider for Edward Snowden?

LADAR LEVISON: I believe that’s correct. Obviously, I didn’t know him personally, but it’s been widely reported, and there was an email account bearing his name on my system, as I’ve been made well aware of recently.

AMY GOODMAN: Glenn Greenwald also wrote, "What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it."

Greenwald goes on to write, quote, "Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told [that] they would face serious criminal sanctions if they publicly discuss what is being done to their company."

Ladar Levison, why did you start Lavabit?

LADAR LEVISON: Well, just to add one thing to Greenwald’s comments, I mean, there’s information that I can’t even share with my lawyer, let alone with the American public. So if we’re talking about secrecy, you know, it’s really been taken to the extreme. And I think it’s really being used by the current administration to cover up tactics that they may be ashamed of.

But just to answer your question, why did I start Lavabit? It was right out of college. I was sitting around with a group of my friends. I owned the domain name nerdshack.com, and we thought it would be cool to offer, you know, a free private email with a large quota, just like Gmail, and we sort of built the service along those lines. And as I was designing and developing the custom platform, it was right around when the PATRIOT Act came out. And that’s really what colored my opinion and my philosophy, and why I chose to take the extra effort and build in the secure storage features and sort of focus on the privacy niche and the security focus niche. And it’s really grown up from there. We’ve seen a lot of demand for, you know, people who want email but don’t necessarily want it lumped in and profiled along with their searches or their browsing history or any of their other Internet activities. And that’s really where we’ve focused and really how we’ve grown over the years, up to when I shut down 410,000 registered users.

AARON MATÉ: And, Ladar, during this time, you’ve complied with other government subpoenas. Is that correct?

LADAR LEVISON: Yeah, we’ve probably had at least two dozen subpoenas over the last 10 years, from local sheriffs’ offices all the way up to federal courts. And obviously I can’t speak to any particular one, but we’ve always complied with them. I think it’s important to note that, you know, I’ve always complied with the law. It’s just in this particular case I felt that complying with the law—

JESSE BINNALL: And we do have to be careful at this point.

LADAR LEVISON: Yeah, I—

JESSE BINNALL: But I think he can speak philosophically about the—his philosophy behind Lavabit and why it would lead to his decision to shut down.

LADAR LEVISON: Yeah, I have—

AMY GOODMAN: That’s Jesse Binnall, by the way. And, Jesse, how difficult is this for Ladar Levison, what he can say, what he can’t say? How high are the stakes here?

JESSE BINNALL: The stakes are very high. It’s a very unfortunate situation that, as Americans, we really are not supposed to have to worry about. But Ladar is in a situation where he has to watch every word he says when he’s talking to the press, for fear of being imprisoned. And we can’t even talk about what the legal requirements are that make it so he has to watch his words. But the simple fact is, I’m really here with him only because there are some very fine lines that he can’t cross, for fear of being dragged away in handcuffs. And that’s pretty much the exact fears that led the founders to give us the First Amendment in the first place. So it’s high stakes.

LADAR LEVISON: Yeah.

AARON MATÉ: And, Ladar, in your letter, you write that "A favorable decision would allow me to resurrect Lavabit as an American company." So, are you suggesting perhaps that you would consider moving it abroad?

LADAR LEVISON: I don’t think I can continue to run Lavabit abroad as an American citizen. I would have to move abroad, effectively, to administer the service. As an American citizen, I’m still subject to the laws and jurisdiction of the United States, particularly as long as I continue to live here. You know, that’s why I have a lot of respect for Snowden, because he gave up his entire life, the life that he’s known his entire life, so that he could speak out. I haven’t gotten to that point. I still hope that it’s possible to run a private service, private cloud data service, here in the United States without necessarily being forced to conduct surveillance on your users by the American government.

AMY GOODMAN: Can you say, Ladar, if you’ve received a national security letter?

LADAR LEVISON: No.

JESSE BINNALL: Unfortunately, he can’t.

AMY GOODMAN: We’re going to talk about that in a minute, the overall issue of what these are, for listeners and viewers who are not familiar with this. But, Ladar Levison, soon after you pulled the plug on Lavabit, another encrypted email provider called Silent Circle also shut down. Mike Janke, Silent Circle’s CEO and co-founder, said, quote, "There was no 12-hour heads up. If we announced it, it would have given authorities time to file a national security letter. We decided to destroy it before we were asked to turn (information) over. We had to do scorched earth." Ladar, your response?

LADAR LEVISON: I can certainly understand his position. If the government had learned that I was shutting my service down—can I say that?

JESSE BINNALL: Well, I think it’s best to kind of avoid that topic, unfortunately. But I think it is fair to say that Silent Circle was probably in a very different situation than Lavabit was, and which is probably why they took the steps that they did, which I think were admirable.

LADAR LEVISON: Yeah. But I will say that I don’t think I had a choice but to shut it down without notice. I felt that was my only option. And I’ll have to leave it to your listeners to understand why. But it’s important to note that, you know, Lavabit wasn’t the first service provider to receive a government request, and we’re not the first service provider to fight it. We’re just the first service provider to take a different approach. And it could very well be because of our size that we have that option. We’re wholly focused on secure email. Without it, we have no business. You take a much larger provider with a greater number of employees, and shutting down a major section of their company, when they have to answer to shareholders, may not be a viable option.

AMY GOODMAN: Why have you decided to speak out today, Ladar?

LADAR LEVISON: Because my biggest fear when I shut down the service was that no good would come of it. And I’m hoping that by speaking out, I can prompt, hopefully, Congress to act and change the laws that put me in this circumstance to begin with. I know that’s a little ironic, considering I can’t speak about the specific laws that put me in this position, but, you know, there’s a real need in this country to establish what the rights are of our cloud providers. And unless we take actions to ensure that, you know, we can continue to operate secure, private services, I think we’re going to lose a lot of business over the next few years. And I think all the major providers, not just Lavabit, have gone on record to say the same.

AMY GOODMAN: Do you think people should use email?

LADAR LEVISON: Yeah, I think it’s a great way to communicate. I think we’re entering a world where we have any number of ways of communicating, from postal mail to Twitter, to text messaging, to Facebook, to instant messenger, to email, to telephone, to video chat. They all kind of blend together. They all sort of fit their own niche, their own purpose. And I think email still has a very important role to play in communication between people.

AMY GOODMAN: Should we just assume it’s all being read?

LADAR LEVISON: I think you should assume any communication that is electronic is being monitored.

AMY GOODMAN: We’re going to break and then come back to our discussion. And we’ll be joined by a service provider who did get a national security letter and is now able to talk about it. We’ve been speaking with Ladar Levison, Lavabit owner, who just shut down the—as a service provider, provided services to Edward Snowden; and Jesse Binnall, his lawyer. We’ll be back in a minute.

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Former Internet Provider Gagged by National Security Letter Recounts How He Was Silenced for 6 Years

We continue our discussion of government surveillance and Internet privacy with someone who was under an FBI gag order for six years. In early 2004, Nicholas Merrill, who was running an Internet service provider in New York called Calyx, was issued a national security letter that ordered him to hand over detailed private records about some of his customers. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI. While Merrill was not the first American to be gagged after receiving a national security letter, he was the first to challenge the FBI’s secret tactics. Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Merrill was simply identified as John Doe. It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity. "[The case] resulted in the national security letter provision of thePATRIOT Act being ruled unconstitutional twice," Merrill says. "The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. ... The concern about cybersecurity and the concerns about privacy are really two sides of the same coin. There are a lot of really uncontroversial examples in which organizations and people need confidentiality: Medicine is one, journalism is another, human rights organizations is an obvious third. We’re trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it’s going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world."

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We continue our discussion of the shutdown of Lavabit, Edward Snowden’s email provider. We’re now joined by someone who was under an FBI gag order for six years after receiving a national security letter that ordered him to hand over detailed private records about some his customers. In early 2004, an FBI agent visited Nicholas Merrill, who was running an Internet service provider in New York called Calyx. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI.

While Nicholas Merrill was not the first American to be gagged after receiving a national security letter, an NSL, he was the first to challenge the FBI’s secret tactics. After receiving the national security letter, Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Nick Merrill was simply identified as "John Doe." It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity.

Nick Merrill, we welcome you back to Democracy Now! Still with us, Ladar Levison, founder, owner and operator of Lavabit, which he just shut down, and his lawyer, Jesse Binnall. They’re both joining us from Washington.

Nick, as you listened to the story of our guest, of Ladar Levison, talk about what you received and what that caused you to do, this NSL.

NICHOLAS MERRILL: I got a visit, personally, from an FBI agent in my offices in 2004. The agent delivered to me a letter, and the letter demanded that I hand over a lot of information about one of the clients of the company. It caused me great concern, because the first thing that sort of really shocked me was that this was not a court order. This was a letter from the FBI signed by an attorney. And it seemed to me that it was not a legal order, and it seemed that it was pretty clearly not constitutional on its face. The FBI had not gone to court. It had not proven probable cause before a judge. And so, the other problem, though, with the letter was that it told me that I could never tell any person that I had received the letter, which pretty obviously precluded me from speaking to a lawyer or to anyone else in my company or to anyone about it. And I was quite afraid to disobey the letter. But after I took a bit of time and thought about it, I decided, you know, we always have the right to speak to an attorney, so I called my private attorney. We then went together to the ACLU, and then we ended up embroiled in this really long court saga which has lasted almost seven years.

AMY GOODMAN: Which also involved four librarians from Connecticut—right?—who were also given an NSL, national security letter, when they were asked for information about Internet users in the library systems of Connecticut.

NICHOLAS MERRILL: Yeah, somewhere about two years into the case, the librarians became co-plaintiffs along with me, although at that time they were just known as "Connecticut Doe," and I was "New York Doe," and we didn’t know who each other were until many years later. But, yes, the librarians had also received a national security letter in Connecticut for library patron records, also a very upsetting issue.

The case, though, it was an interesting case because it resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice. And actually, recently, I think, in California in the Ninth Circuit, there was a similar ruling. The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. And to be honest, it felt to me like the government wasn’t really acting in good faith, that when it seemed like they were going to lose, they would back out of all these cases. It seemed to me that they were afraid to have the Supreme Court rule on the issue itself.

AMY GOODMAN: Why is this important?

NICHOLAS MERRILL: It’s really important because what’s at the heart of this matter here, the 800-pound gorilla in the room, is warrantless wiretapping and surveillance of Americans without any suspicion of wrongdoing. As we’ve heard with the revelations from Edward Snowden, this is a very widespread problem. And what I started to get a sense was happening back in 2004 was that essentially the rule of law was being eroded by a combination of the Department of Justice acting without proper checks and balances overseeing what they were doing. By evading the courts and by evading the court oversight and by issuing these national security letters themselves, they were able to gather huge amounts of information on Americans. And then, also by putting everyone under gag orders who received them, they were able to prevent anyone from talking about what was happening.

AMY GOODMAN: If you even talk about getting a national security letter, you face five years in prison.

NICHOLAS MERRILL: Right.

AMY GOODMAN: If you even mention it to a co-worker. Why don’t we turn to President Obama speaking in 2005 about national security letters. At that time that he was speaking, he was still a U.S. senator.

SEN. BARACK OBAMA: This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That’s it. Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they’re even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order. If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you’ve done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You’ve got to tell the FBI that you’re consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it’s justified here. And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you’ve made, the emails that you’ve sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.

AMY GOODMAN: That was Barack Obama speaking in 2005 when he was a U.S. senator, speaking about national security letters. Ladar Levison, I know you can’t say if you’ve received a national security letter, but what are your thoughts on hearing this?

LADAR LEVISON: I think it’s important to note that, you know, it’s possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there’s no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.

AARON MATÉ: And, Nick, can you talk about the work around privacy that you’re doing today?

NICHOLAS MERRILL: Sure.

AARON MATÉ: And if you were shaping policy on Internet privacy, what would it look like to you?

NICHOLAS MERRILL: One of the points that we’re trying to make is that the concern about cybersecurity and the concerns about privacy are really two sides of the same coin, and that there are a lot of really uncontroversial examples in which organizations and people need confidentiality. Medicine is one. Journalism is another. Human rights organizations is an obvious third. We’re trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it’s going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world. There has also been a study recently saying that the government’s policies weakening the right to privacy and the right to use encryption is going to cost American cloud service providers upwards of $35 billion over the next few years. So I think it’s going to have really terrible economic effects. And these are some issues that we need to consider when we look at the policies that the government is taking.

AMY GOODMAN: Ladar Levison, you’ve shut down Lavabit. What would it mean if Google and Microsoft and Yahoo took a similar stand?

LADAR LEVISON: I think a major portion of the U.S. economy would shut down with it. Now, whether that would cause Barack Obama to reconsider his policies, I don’t know.

AMY GOODMAN: You think of the web blackout protesting SOPA.

LADAR LEVISON: Yeah, yeah, but those didn’t actually shut down—well, they did shut down services, some non-critical services, for a day. But that was more of a visual protest. Our economy depends upon email, and more now than ever before, it depends upon Gmail, because Gmail is used to host so many corporate email accounts, along with Outlook 365, which is the Microsoft service, Microsoft cloud service. And those shutting down would effectively force millions of Americans to find a new way to communicate.

AMY GOODMAN: Well, I want—we have to leave it there, unfortunately. Ladar Levison, thank you very much for being with us—has just decided to shut down his service provider, his Lavabit—Jesse Binnall, attorney, and Nick Merrill of the Calyx Institute.

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