Episode 249: The End of the Constitution Had to Start Somewhere

Summary

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What the Hack? – Episode 249: The End of the Constitution Had to Start Somewhere

Release Date: April 27, 2026
Host: Beau Friedlander (DeleteMe)
Guests:

• Senator Ron Wyden (D-OR) – U.S. Senate Intelligence Committee
• Kia Hamadanchi – Senior Policy Counsel, ACLU
• Marcy Wheeler – National security journalist ("emptywheel")

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Overview

In this urgent episode, Beau Friedlander explores the looming reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), a law enabling warrantless surveillance of foreign targets but frequently sweeping up Americans' data in the process. As Congress faces critical decisions, Beau speaks with Senator Ron Wyden, ACLU’s Kia Hamadanchi, and journalist Marcy Wheeler to unravel the law’s history, its real-world abuses, and the existential risks bulk surveillance and AI pose to American liberty.

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Key Topics & Insights

1. The Origins of FISA and Section 702

[02:36] – [06:06]

• FISA was born from scandal: Congressional oversight was established after President Nixon abused intelligence agencies to spy on political enemies.
• The FISA Court: Created to check executive power by requiring government agencies to seek judicial approval for targeted surveillance.
• Section 702 Added (2008): In response to post-9/11 threats and foreign use of U.S. digital infrastructure, Congress granted annual blanket authorizations, dramatically expanding surveillance powers.
• Scope & Limits (in theory): Officially restricted to foreign targets, with bans on targeting Americans or surveilling foreigners to spy on Americans ("reverse targeting").
  • “The surveillance that’s going on is restricted to foreign targets only. No US Persons, nobody inside the United States. No reverse targeting…” — Beau Friedlander [03:31]

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2. The Case for Reauthorization: Proponents Weigh In

[05:08] – [06:06]

• Senator Ted Budd’s Argument:

  • “FISA had major reforms 18 months ago… 56 specific reforms… from hundreds of thousands down to just a handful of US Person queries. All that is transparent. …We need these authorities. And I see the evidence in the content that this stuff produces and how it helps keep us safe… A lot of it is because of 702. So I hope we get this renewed.” — Senator Ted Budd (R-NC) [05:13–06:06]

• But Beau counters: Reauthorization is when Congress can attach meaningful reforms; otherwise, abuses persist.

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3. The Abuse and Loopholes of Section 702

[07:14] – [11:17]
Interview with Senator Ron Wyden

• Abuse Acknowledged:
  • “There have been a whole host of abuses. … I’ve actually put something in that’s classified that says people are going to be staggered if they find out what’s really been done by the government.” — Wyden [07:31]
• The Backdoor Search Loophole: Enables warrantless searches for Americans’ communications swept up “incidentally.”
  • “It basically gives the government an opportunity to get around having a warrant… Once you get that kind of information, you can really hurt people. Health care data, that sort of thing.” — Wyden [08:30]
• Specific Abuses: Used against BLM protesters, political donors, and other Americans.
  • “We know it’s been used to search for Black Lives Matter protesters, political campaign donors.” — Beau [08:49]
• Exponential Risk with AI: AI allows mass surveillance at unprecedented scale.
  • “AI driven surveillance makes it possible to take all this scattered, you know, data and turn it into a comprehensive picture of anyone’s personal life.” — Wyden [10:16]

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4. What’s at Stake: Personal Rights, Political Abuse & the Constitution

[11:01] – [15:44]
Interview continues with Wyden

• Motivations:
  • “Donald Trump is pulling out all the stops. He’s always been interested in his personal power. …This would give him a chance to have people that are sympathetic to him with very few guardrails.” — Wyden [11:01]
• Founders’ Warnings:
  • “Ben Franklin said, anybody who gives up their liberty to have security really doesn’t deserve either. That’s essentially what Donald Trump has taken away.” — Wyden [11:17]
• AI Magnifies Surveillance Risk: Modern tools require new rules to avoid trampling liberties.
• Data Broker Loophole: Agencies (ICE, CBP) buy Americans’ data from brokers, bypassing warrants.
  • “People are just using a credit card and going in and buying data and everything in sight is wrong. And my legislation would check it.” — Wyden [13:06]

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5. The Need for Real Reforms (and Bipartisan Challenges)

[13:32] – [19:32]

• Wyden’s Legislative Push:
  • He will introduce an amendment to close these loopholes, particularly as Congress returns.
  • The "Fourth Amendment is not for sale" is at the heart of this reform movement.
• Surveillance vs. Innovation:
  • “The more people think they’re being watched, the more they’re going to be careful about what they’re doing. …You’re not going to innovate.” — Beau/Wyden [18:30–18:51]

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6. Oversight Systems Gutted: The View from the ACLU

[20:43] – [31:37]
Interview with Kia Hamadanchi, ACLU

• Oversight Collapsed:
  • “Most of the Privacy and Civil Liberty Oversights Board has been fired. …[Within] FBI, Cash Patel has closed the Office of Internal Auditing… purges across FBI and ODNI for political loyalty.” — Hamadanchi [21:12]
• Opaque Certification:
  • Delays and intentional lack of transparency result in a lack of real-time oversight.
• No Warrant, No Visibility:
  • Agencies perform searches without adequate records or oversight.
  • “It’s pretty simple. Get a warrant. The Fourth Amendment applies.” — Hamadanchi [24:39]
• The “Blank Check” Problem:
  • Those pushing reauthorization most aggressively are political actors with histories of abuse (e.g., Stephen Miller).

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7. AI & Surveillance: Compression of Rights

[28:44] – [30:39]

• AI Supercharges Surveillance:
  • “You take these large language models and you’re applying it to these huge data sets… pulling all sorts of things together that we can’t even fathom.” — Hamadanchi [28:58]
  • “Until the cat’s out of the bag, it’s going to be impossible to draw it back in.” — Hamadanchi [29:39]
• Moratorium Needed: Suggestion for Congress to halt AI’s use in surveillance until it can be properly understood and regulated.

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8. The Query Problem – Technical and Legal Blindspots

[34:43] – [38:50]
Interview with Marcy Wheeler (“emptywheel”)

• Database Search as Fourth Amendment Void:
  • “There has never been a rethinking of what a database search means… the intelligence community doesn’t consider that a search. …If you take my name and put it into a database, you’re doing a search… That disjuncture has never even been attempted to be addressed ever.” — Wheeler [35:15]
• Two Sets of Precedents:
  • The FISA court creates secret legal precedents that can’t be challenged, keeping oversight impossible for most.
• ICE, Data Brokers, and Legal Recourse:
  • Non-citizens or targets of civil/immigration enforcement can’t challenge surveillance because they lack the protections or visibility afforded to criminal defendants.

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9. The Unanswered Questions – Legal Black Holes and Oversight

[40:32] – [42:03]

• Upstream “Cyber Certification”:
  • There may exist a secret legal order authorizing mass cyber collection — potentially enabling universal dragnet surveillance via U.S. telecom backbone — but the very existence of such authorization is unclear.
  • “If there is the government central claim that 702 doesn’t result in mass surveillance, that becomes very hard to sustain because the upstream cyber collection doesn’t work like targeting a terrorist’s email address. …It works like …monitoring traffic across the Internet, all of it, which means monitoring American communications infrastructure.” — Beau [41:33]

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Notable Quotes & Memorable Moments

• “There have been a whole host of abuses… People are going to be staggered if they find out what’s really been done by the government.” — Sen. Ron Wyden [07:31]
• “What’s really at stake is that Donald Trump is basically trampling on what the Founding Fathers had in mind… security and liberty are not mutually exclusive.” — Wyden [11:17, 14:47]
• “AI driven surveillance makes it possible to take all this scattered, you know, data and turn it into a comprehensive picture…” — Wyden [10:16]
• “Blank check powers for a president… No one in their right mind would vote to do that. And that’s essentially what’s on the table right now.” — Kia Hamadanchi [39:59]
• “…for all intents and purposes, if you take my name and put it into a database, you’re doing a search…” — Marcy Wheeler [35:15]

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Key Timestamps

• [01:26]: Setting the stakes—FISA’s upcoming reauthorization and public ignorance.
• [07:14]: Discussion with Senator Ron Wyden: abuses, reform movement, and legislative dynamics.
• [20:43]: Interview with Kia Hamadanchi (ACLU): oversight failures and legal black holes.
• [34:43]: Interview with Marcy Wheeler: technical and constitutional gaps in the surveillance debate.
• [39:59]: Kia Hamadanchi’s summary: what unrestricted surveillance means in practice for Americans.
• [42:03]: Unanswered cyber certification question; what bulk "upstream" surveillance really means.
• [42:55]: Tinfoil Swan Practical Tip: Use Signal encrypted messaging to protect communications.

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Practical Takeaways (Tinfoil Swan)

[42:55]

• Use Encrypted Messaging: Download Signal. End-to-end encryption means no carrier, ISP, or even the government (as far as is known) can read your messages—even if communications are swept up in mass surveillance.

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Conclusion & Call to Action

Beau stresses the unprecedented scope of government surveillance and the urgent need for public pressure on lawmakers as Congress is about to decide whether to rein in or further entrench Section 702 powers. He encourages listeners to call their representatives and demand real protections for American privacy.

“If tomorrow, if this program didn’t exist and Donald Trump wanted the authority to collect communications… a lot of them which will be Americans… and then search them without a warrant—no one in their right mind would vote to do that. And that’s essentially what’s on the table right now.” — Kia Hamadanchi [39:59]

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For listeners:
This episode is a crash course in how American privacy is imperiled by secret surveillance powers, technological advances, and political inertia—and why the current Congressional vote on Section 702 is likely to determine the fate of Fourth Amendment rights for years to come.

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Transcript

[A]

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[B]

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[C]

Partners of all time.

[B]

New friends. You are Gary the Snake.

[D]

And your last name.

[B]

The Snake Dream Team hid new habitats.

[A]

Zootopia has a secret reptile population.

[B]

You can watch the record breaking phenomenon at home.

[E]

You're clearly working at Zootopia 2.

[B]

Now available on Disney. Rated PG. Madam President, soon the Senate will take up the Foreign Intelligence Surveillance Act. It of course, is known as fisa. And FISA may not be a household word to most Americans, but a properly written FISA reauthorization is exceptionally important to the well being of our country.

[D]

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

[B]

I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as President at that hour in this office. I recall the high hopes for America.

[D]

Fisa, the Foreign Intelligence Surveillance act, was born out of a scandal. After President Richard Nixon used the intelligence community to spy on his political enemies. Congress decided there needed to be a law that put limits on government surveillance. That was 1978. The idea was simple. If the government wants to spy on someone, they have to go to a special court and make their case. The court is called the Foreign Intelligence Surveillance Court. It was designed to be the check on executive power that Nixon proved we needed at the outset, I want to stress three things as a backdrop to

[E]

everything else that my colleagues and I are presenting today.

[D]

First, as I mentioned at the outset,

[E]

collection under 702 has produced and continues

[D]

to produce intelligence that is vital to

[E]

protect the nation against international terrorism and other threats.

[D]

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

[A]

Do you think Americans will be less

[E]

safe if that surveillance tool expires, sir?

[F]

Oh, 100%. Look, FISA had major reforms 18 months ago that we helped lead. There's 56 specific reforms that are in Risa R I S A that we have passed. And this authority is coming up for renewal right now.

[D]

That's Senator Ted Budd of North Carolina arguing in favor of reauthorization of FISA. And specifically section 702 we have taken

[F]

from hundreds of thousands down to just a handful of US Person queries. All that is transparent. It's reportable to Congress. It has to have internal checkoffs so that that happens. It was not done like it's done under Obama or it was done under Joe Biden. We need these authorities. And I see the evidence in the content that this stuff produces and how it helps keep us safe, things that we never hear about in our country and allow 350 million people to sleep well at night. A lot of it is because of 702. So I hope we get this renewed

[D]

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

[B]

Hey, thanks for having me.

[D]

All right. Now, you've been on the Senate Intelligence committee since section 702 was written, longer than anyone else serving. What do you know about how this law has actually been used that the American public still doesn't know?

[B]

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

[D]

All right, can you explain for our listeners the backdoor search loophole in plain terms? Just what does it allow the government to do and why is it a problem?

[B]

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

[D]

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

[B]

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

[D]

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

[B]

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

[D]

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

[B]

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

[D]

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

[B]

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

[D]

What is at stake? How does this hurt people?

[B]

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

[D]

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

[B]

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

[D]

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

[B]

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

[D]

Right. So. So where are we now with regard to getting some of this under control with the loophole, at least the work, the work around.

[B]

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

[D]

Can you tell me a little bit about that?

[B]

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

[D]

Now, is any of this related to the Fourth Amendment Is not for sale. And that, and that legislation, very, very much so.

[B]

The Fourth Amendment is not for sale. It's connected to how loose the system is. And basically if you got a credit card you can get around.

[D]

Seems very like you said, I guess I'm reasonable. But it seems very simple that that is not what our founding fathers had in mind when they, when they wrote the Constitution about the Fourth Amendment.

[B]

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

[D]

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

[B]

There's no question about this. The, the Trump approach is anti innovation, it's anti personal rights. And it's basically Donald Trump just trying to be able to scoop up everything, incite and invade people in people's privacy.

[D]

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

[B]

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

[D]

But the nsa, I mean, this is these, these dragnets of data that, that were being scooped up under the name of protecting the country from, from foreign adversaries. It did include a lot of Americans information. And was there an expectation, at least in the beginning with 702 that well, that's true, but they're not going to go after journalists, they're not going to go after professors.

[B]

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

[D]

I think it's, I think it's a huge thing. The more people think they're being watched, the more they're going to be careful about what they're doing. And they're not. You. You know, it's like dancing by yourself, Senator Wyden. If you're by yourself, you don't care. But if you think you're being watched. You're not going to come up with a good move.

[B]

You're not going to innovate. And there's a lot of need, right, to compete with China. And this is going to be making it harder.

[D]

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

[B]

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

[D]

Well, I think that's the thing, and I don't, I, I tell you, I'm mystified by Republicans who in the 70s would have been appalled by the depredations of privacy that are happening in this country and now are just all for it because they have a political agenda that, that, that is well served by, by hurting people's privacy.

[B]

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

[D]

Thank you so much. I really appreciate your time.

[B]

A lot of fun. Good talking.

[D]

Take care.

[E]

Hey, Mama.

[A]

Thanks for making all my favorite recipes.

[B]

Hi, Ma. Thanks for your unfiltered advice.

[E]

Hi, Mom.

[D]

Thanks for always being by the phone.

[B]

Hey, Mom.

[D]

Happy Mother's Day.

[A]

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[D]

Okay, next up is Kia Hamandanchi, Senior Policy Counsel, ACLU National Political Advocacy Division. Kia, thank you so much for joining me on a Sunday.

[E]

Of course. Happy to be here.

[D]

I'm just going to run you through a bunch of questions real quick because I know you don't have a lot of time. The first one, you know, you gave me a statement, and in that statement you said that the oversight systems have been gutted what specifically is gone that was there before?

[E]

I mean, to be clear, I mean, the previous oversight systems weren't good enough. Right. But there's a lot of guardrails that have been removed that I think previously made a lot of Democrats comfortable voting for 702 reauthorization under Joe Biden. One of the big ones is most of the Privacy and Civil Liberty Oversights Board has been fired. Also in the FBI, Cash Patel has closed the Office of Internal Auditing, which has previously been credited for helping to reduce some improper queries. Other things we've seen is the Department of Justice Inspector General. There are allegations that are just completely ignoring all sorts of misconduct, which raises concerns that if there was a problem with 702, that they would just ignore it. And of course, there's been purges across FBI and ODNI and all these agencies for political loyalty.

[D]

Sure.

[E]

As we've seen. Basically. Not that we thought these oversight systems were adequate before, but to the extent that they were helpful, they've been completely gutted. And I think that just more Generally, the entire 702 system is based on certifications that Department of Justice makes the FISA port. And this is a Department of justice that around the country, the multiple courts has made misleading and inaccurate representations. And I don't know why you would trust them here. Tell the truth.

[D]

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

[E]

I think the other thing is because this program is very classified, there's almost always a lag. So they just got a new certification for the next year. We've heard that there are some problems in the program, but we've not seen the certification, and we're not going to see the certification for months. This is the same thing. Whenever there's abuses, they don't tell us about it until much, long after the fact. It's really hard to know what's going on in real time. And Congress is going to be making decisions about this without knowing this information.

[D]

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

[E]

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

[D]

What would reform look like in that area?

[E]

I mean, I think it's pretty simple. Get a warrant.

[D]

Yeah, right.

[E]

The Fourth Amendment applies. You got to go to a judge and you got to get a warrant. And at a probable cause standard.

[D]

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

[B]

Yeah.

[E]

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

[D]

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

[E]

Yeah, I forget the exact quote from the Federalist Papers, but it was something about if men were angels, we wouldn't need a government right. And that's why we have things like the Fourth Amendment. Because men are not angels. No.

[D]

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

[E]

There's a Supreme Court case I think was 2014 Riley, but could be California has to do with a search, searching a cell phone that the government had had. But there's a quote in there from John Roberts, who said he's basically like the founder. And I'm paraphrasing, but the founders didn't fight a revolution for the right to government agency protocol. Right.

[D]

Yeah.

[E]

So, like, we have these protections and people should.

[D]

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

[E]

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

[D]

I mean, I mean, honestly, like, we don't, like we here on this. We're being both professional people don't know that, but me personally living out here where I live in Connecticut, knowing a cop, I know they are.

[E]

I'm sorry, I would say everything that we've seen, when the Trump administration lends to the idea that they are, they're likely to do so. But I could not, I cannot definitively tell you. No, they are there. And again, that that's exactly the sort of thing Congress should be asking about before they reauthorize this program. Like, yeah, they should. That there's, there's, there's an answer to that question. And Congress, and Democrats in Congress should not reauthorize that this program without, among other things, making sure they know the answer to that.

[D]

Well, no, but any. But the problem is they don't want an answer to that because that's like opening the walls up in an old house. They're going to find things they don't want to find.

[E]

That's exactly true.

[D]

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

[E]

Yeah, the first thing I'm going to say is that this is an area where we don't have nearly enough information in terms of how they're using AI when it comes to 702 Holdings. And there was a story today where Anthropic specifically said that there are some of their customers within national security, like agencies who are using their data on some of the classified holdings, which includes 702. But I think the thing is, when you take these large language models and you're applying it to these huge data sets, which includes a bunch of US Person information, it's drawing all sorts of inferences and pulling all sorts of things together that we can't even fathom.

[B]

Right.

[E]

Because this technology is brand new and it's completely just blowing a hole through the fourth Amendment. And the problem is, if we don't put a stop to this right now, once the cat's out of the bag, it's going to be impossible to draw it back in. What Congress should do is put a moratorium on the use of AI when it comes to 702 until they can get more information about how the government wants to use it and decide if that's in line with people's rights or not.

[D]

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

[E]

Well, let's say until you come to Congress and ask for their permission and. Right. And Congress and hopeful, hopefully. And, you know, obviously one, we want to know how they want to use it and make sure that's in compliance with the Constitution. But also that's not something the executive branch should be deciding by itself.

[D]

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

[E]

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

[D]

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

[E]

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

[D]

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

[E]

KIA so there is a classified legal opinion in terms of how a 702 is being used. And Ron Wyden has said this is really concerning. You know, me, myself, I know absolutely nothing about what it means and how about it. But the fact that Ron Wyden says it's churning race is red flags for me. And it's absolutely the sort of thing that should be public before Congress votes to reauthorize this program. Right. This is something that implicates the rights of Americans and shouldn't be done in the dark. Right. We should know what we're doing. And it's a legal opinion, like legal Opinions, questions of the law should never be classified. Right. This is about how they're interpreting the law.

[D]

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

[E]

Exactly. And. And the thing is, right, like, it's one of those things that you don't. You don't necessarily learn about unless you're on the intelligence committees.

[D]

Right.

[E]

And so you rank and file a member of Congress. This is not something they spend a lot of time with. And thankfully, we have someone like Senator Wyden on the Senate Intelligence Committee who is really, you know, working hard to get this stuff out there. But unfortunately, a lot of the members on the intel committees tend to be in the pocket of the intelligence community.

[A]

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[D]

Ron Wyden has been fighting this fight for 20 years, two decades. Kia Hamandanchi is in D.C. fighting in the trenches right now on the Hill over these issues. But I wanted to understand how the whole thing actually works under the hood, or at least part of the whole thing. And for that, I needed somebody who knows that kind of stuff. An empty wheel. Speaking of hoods. I don't think it's that kind of wheel, though. Somebody I followed for many, many years immediately came to mind. I called Marcy Wheeler.

[C]

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

[D]

And they can't and they can't. And that's going to keep the law enforcement side from getting separated from the intelligence side. That's what's going to keep it from happening. Because we don't have visibility into the problem and people aren't right.

[C]

I mean like if there is a problem like buying location data, you know, when ICE buys location data, here's the other problem with it. When I spy's location data to snatch grannies from Mexico. Mexico, that is never going to get challenged in a court because that granny from Mexico has far fewer due process rights than a criminal defendant because she is not being prosecuted as a criminal. She won't get, she won't get discovery of how they snatched her and so her attorneys won't be able to challenge the means by which they snatched her 100%.

[D]

All right, well, we'll see what happens on Tuesday. Marcy Wheeler, thank you so much for talking to me today.

[C]

Yeah, good to talk to you.

[D]

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

[E]

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

[D]

Before we go, there's one question nobody in this debate will answer. I reached out to Bob Lord, who worked at cisa, and Lauren Zabiric. They couldn't make it today, but it's a qu. It's. It's really digging at me. And I don't think there's a knowable. I don't think there's. There's a way to know what. What is going on here. But what we don't know is whether there's an active certification authorizing upstream collection specifically for cyber purposes. And that matters. What does that mean? It means, like. Well, the certificate means that all the intelligence community can take a phenomenal amount of data in order to track cybersecurity risks. That's malware. That's code. It could be. In other words, they would have an excuse to just do a dragnet and suck everything into their system. But we don't know if that certificate exists. If there is the government Central claim that 702 doesn't result in mass surveillance that becomes very hard to sustain because the upstream cyber collection doesn't work like targeting a terrorist email address.

[B]

Right.

[D]

It works like. Well, think about how Stuxnet, the worm that got into around the world, into everyone's machine until it infiltrated Iran's centrifuges. Think about how that worked. It works on a bigger level. And the surveillance would be bigger and more inclusive. It means monitoring traffic across the Internet, all of it, which means monitoring American communications infrastructure.

[B]

All of it.

[D]

Congress is being asked to reauthorize this program without knowing the answer to that question. And that's not oversight. That is a totally different kind of blank check. But again, like, it's a blank check in theory, because we don't even know if that certificate exists. And this is the thing is, like, the less we know, the more I know. It's unsettling. It's really unsettling. And now it's time for the Tinfoil Swan, our paranoid takeaway to keep you safe on and offline. Everything you just heard about is the government's ability to collect your communications without a warrant, at least in theory. This week's takeaway is really simple. Download signal. It's an app. The Signal app, super important. It's free encrypted messaging. That means even if your communications get swept up in a dragnet, there's nothing there to read. End to end encryption means only you and the person you're talking to on the other end can see what's being said. Not your carrier, not your isp, and as far as we know, not the nsa. So be open, be careful, be ready, stay safe, and see you next week. Thanks so much for listening. This episode of what the Hack was produced by me and Andrew Stephen, who also did the editing. What the hack is a production of Delete Me, which was picked by the New York Times wire cutter as the number one personal information removal service. You should be using it already. If you're not and you want to, well, you can. Here's what to do. Go to joindeleteme.com wth that's joindeleteme.com WTH and get 20% off. I kid you not. 20%. 20% off. That's joindeleteme.Com wth now, stay safe out there. See you around.

[G]

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[B]

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