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MSNBC "The Rachel Maddow Show" - Transcript - Internet Privacy

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MADDOW: Those documents were wiring document. Wiring diagrams. Mark Klein would later tell "The Washington Post," this was sweeping up everything, vacuum cleaner style. NSA is getting everything. These are major pipes that carry not just AT&T`s customers, but everybody`s. He told "The Post", "That was my `aha` moment. They are sending the entire Internet to the secret room."

And Mark Klein the whistle when he figured out that they were sending the entire Internet to the secret room. He sued, he joined a lawsuit in an effort to try to make AT&T stop what it was doing in room 641A and that office on Fulsome Street. That was 2006.

And, meanwhile, a bunch of other stuff like this started to be exposed. "The New York Times" had reported on warrantless wiretapping and in late 2005. The Brave Windsor, Connecticut, librarians have come forward about the national security letters that they got, ordering them to hand over information about how people were using the library.

"USA Today" published a really important piece in 2006 about widespread, indiscriminate vacuuming up of mass amounts of Internet communication. Piece by piece, it was all starting to come out. But people getting upset about it, did not make it go away. The result of people getting upset about it is that it was codified into law. So, it become no longer illegal spying on people, it was the exact same spying on people, but now legalized. That was change happened once get got upset. They kept doing it, they just made it legal.

So, if you care about lawlessness, some progress was made there, in that the law was changed to now a law for what allow for what was previously illegal behavior, if you only care about lawlessness, maybe that`s progress. But if you care about the substance of the law breaking, if you care about spying itself, really no progress was made. None of that stuff was ever dialed back after it was exposed, ever. The guy who saw them setting up the room in 2002 to secretly copy the whole Internet, he`s right, that`s what they were doing and nothing stopped them from do doing that, since, as far as we know.

It seems to be illegal when the government was doing that in room 641A starting a decade ago. That kind of thing got less illegal over time when Congress passed and President Bush signed legislation to bring all this stuff above board. One of the most contentious issues in that whole process was would happen to these companies who illegally help the government do this illegal spying.

Could the companies get sued for that? Could the companies get in trouble for having done that, when the government acted illegally? Well, after much lobbying from the White House, Congress voted in 2008 to retroactively grant immunity to all the telecom companies. All the Internet companies, all the phone companies, all those companies who had acted illegally in helping the administration do what was now being declared a legal thing. It appears that they had done something illegal but Congress made it to the companies couldn`t be sued for it for prosecuted for it.

So, now, here we are. 2013 with yet more details expose about them secretly copying the whole Internet, every day. And this time, not just a secret room at AT&T on Folsom Street in San Francisco. From "The Guardian" on Wednesday night, it`s Verizon. "The Wall Street Journal" today says it`s also AT&T and Sprint and unnamed Internet service providers and credit card companies.

Then, from "The Guardian" and "The Washington Post", we got details of the PRISM program, sweeping up vast amounts of Internet everything, your emails, your videos, your photos, your chats. For the most of the big, famous Internet companies, Google, Yahoo!, Microsoft, Facebook, AOL, Skype, YouTube, Apple.

Here is the thing though, this is -- this is the question of the day. The companies are all basically denying it. I mean, back in the day, that AT&T story, AT&T just no commented, everybody. "We do not comment on matters of national security."

And this week, too, when the initial leak this week was just Verizon, they started off as just no comment.

But take that with a grain of salt, right, because we also know from the leaked court ruling about Verizon that was the source of that whole story, we know from that court ruling that Verizon is not allowed to tell anybody they are doing this thing that the government is already them to do. They`re sworn to secrecy.

So, no, Verizon isn`t confirming it. But maybe they couldn`t confirm it even if they wanted to. That`s Verizon so far. But for the other leak, for the Internet companies, this PRISM program thing, for the Internet companies, it`s not "no comment". It`s not "we don`t want to talk about this". It`s not "we can neither confirm nor deny this".

For Internet companies, it is a flat-out "no, we are not doing this".

It`s weird, right? And statements from the Internet companies are weird."The Guardian" covered it today, following up on their own reporting, within the tech companies and talking on and off the record executives say they never heard of PRISM until contacted by "The Guardian" for comment on it.

Senior officials with knowledge of the situation within the tech giants admitted to being confused by the NSA revelations and said if such data collection was taking place, it was without their company`s knowledge. Without their knowledge?

Yahoo! says, "We do not provide the government with direct access to our servers, systems or network". Apple says, "We have never heard of PRISM. We do not provide any government agency with direct access to our servers."

Mark Zuckerberg from Facebook put out this statement tonight, "I want to respond personally to the outrageous press reports about PRISM. Facebook is not and never has been part of any program to give the U.S. or any other government direct access to our servers. We have never received a blanket request or court order from any government agency asking for information or metadata ion bulk, like the one Verizon reportedly received."

"And if we did," he says, "we would fight it aggressively. We hadn`t even heard of PRISM before yesterday."

Microsoft is the company that is described by the NSA in these documents as having been first into this program. And the Microsoft denial is really, really specific. Maybe they thought they had to be specific since their whole ad campaign right now is all about how much they love your privacy.

But check out, whatever they said, check out the way and with the specificity of which Microsoft denied it. Microsoft says, "We provide customer data only when we receive a legally binding order or subpoena to do so, and never on a voluntarily basis."OK. So they are saying we all need to do it when we are forced to. All right. Fine, if that forcing you, who really cares?

But wait, there`s more. They also say, quote, "In addition, we only ever comply for orders with respect about specific account or identifiers. If the government has a broader voluntary national security program to gather customer data, we don`t participate in it."

We don`t participate in it. We`re not doing that. So companies are responding to this leak this week by saying, not us, we`re not doing it. Effectively, they`re saying, if it is happening, it is happening against our will. We would never given a chance to say no, would have said no. And here is the problem with understanding how that could be so. Why is Twitter not on the list of companies? Why is Twitter not on the list of companies that the NSA says it`s gotten this thing?

This is the slide that leaked right? This April 2013 slide, which shows supposedly all of the companies that the NSA says are in this program. You know, Yahoo and Google, Facebook and all the rest of them. Twitter is just as big a company as all those companies. Twitter handled just as much as private information, just as much potentially identifying information, including geolocating information as any of those companies. NSA and FBI want all of those other companies but not Twitter data? Are they not interested with Twitter data? Or did they ask Twitter for access to their users data and Twitter said no. They would not let them have it, so they`re not the on the list but all of the other companies are. Apple held on and apparently didn`t get into the system until five years after Microsoft got into the system. Had Apple been resisting, had Apple been saying no before and they stop saying no and they finally got brought in? Did the NSA figure out a way to go around their saying now and get their data without them?

The NSA presentation reportedly bragged that Dropbox was next. Dropbox is going to have its data in the program soon. Is that because NSA figure out how to wrangle Dropbox`s data against Dropbox`s will? Or is it because they convince Dropbox to say yes?

Are the companies going along with this or not? Are they legally aloud to say if they are? Are they lying? Are they immune from any legal liability from lying about it? Are they immune from legal liability in terms of how they treated their customers, how they behave as a business because of that blanket immunity that Congress gave the whole industry back in 2008?

You know, we know a lot more today than we did at the beginning of the week. But some of what has been told to us about this program and the businesses for which this government is getting all of our private information that we thought was private, some of this story still does not make sense even at the most basic level.

I mean, if you`re -- let`s say have you a Google comment and you use Gmail, right? If you are feeling mad this week about the fact that you just found out all of your Gmail is in a military computer somewhere, your government is holding your Gmail in a military computer somewhere, and you want to know. You`re mad about that.

And you want to know if Google is one of the people you should be mad at about that -- I can`t tell you. Kind of seems like Google must have gone along with this in order for them to get that data. But Google is saying, not it. Not our fault. We never say OK to this.

And, objectively, I have to tell you, it is just not clear.

Also not clear, or at least still contested this point is whether or not Congress really did sign off on all of this. Some members of Congress since this has all come out have been saying, ah, this is no big deal, we`ve known about this forever. This program has been going on for years. We all know about it. It`s totally authorized. Nothing to see here. The president today took that line as well. This has been authorized by Congress multiple times by big bipartisan majorities. Every members of Congress knew about this, the president said today. But some of the people who supposedly knew about this, who supposedly were briefed on it and who authorized it and all the rest, some of those people are contesting that now, too.

Joining us now is a member of the United States Senate who has been spoken on this issue, he`s Democrat Jeff Merkley of Oregon. Senator Merkley, thank you so much for being with us tonight. It`s a pleasure to have you here.

SEN. JEFF MERKLEY (D), OREGON: You`re so welcome. It`s great to be with you, Rachel.

MADDOW: So, the White House and some members of Congress and the Senate have been saying, everybody in Congress knew about all of this Internet surveillance. Everybody had been briefed on it.

Were you ever briefed on this PRISM program?

MERKLEY: No, I never heard of the PRISM program. I don`t -- I doubt that very many people outside the Intelligence Committee know anything about it.

MADDOW: Is it the only thing that should be briefed to the Intelligence Committee? Or is it a sort of thing that other senators, even not on that committee, should be told about?

MERKLEY: Well, it is deeply troubling. I can draw a parallel to the cell phone side and that`s a different section of the law under records, and section 215. I had heard stories like you had mention, that were there some shenanigans going on.

So, I asked for a briefing on that program because we were talking about the extension of the Patriot Act, the extension of the FISA authorization. And so, I went and got a briefing. And the briefing suggested to me much what has been revealed through this document, that there was a large vacuum cleaner at work.

Now I couldn`t say that because I was now in a classified realm, but what I could do is introduce legislation to say essentially there appears to be some secret law and let`s make that law public.

Let me explain more of what I mean. You have in the law, it has a provision that says that the government can collect a tangible things related to an investigation and it says facts have to be shown and reasonable cause and so forth. Very consistent with what you would see in the Fourth Amendment.

But how is it possible? How is it possible that the barriers get translated into not specific searches but into a vast dragnet? So, that`s what I wanted to understand. And when what I found out, I said, you know, OK, there appears to be a court interpretation, changing the common meaning of these words into something entirely different, let`s get that court interpretation into the common realm.

So, I proposed the secret court law amendment that said these interpretations by secret court will be declassified so we could have a debate here in America about privacy and security.

MADDOW: How much support did you get for that proposal?

MERKLEY: We had 30-plus members vote for the amendment but we also had the chair of the committee say that she supported the idea I was presenting and she would join me in lobbying for these secret opinions to be classified. And that was Senator Feinstein.

And so, she joined with me and Senator Wyden, Senator Mark Udall as well, and we wrote a letter in this case to the FISA court asking for declassification. And we didn`t get back a yes.

MADDOW: I imagine that some of those proposals may be revisited now with public outcry over these leaks this week. You may get more support from those proposals from fellow members in the Senate. I don`t know. I have to ask, though, about the big picture here, which is about whether or not there can be effective oversight of secret programs. I mean, how can you make the case for legislation when you can`t explain the need for it, because the need for it is classified?

MERKLEY: Absolutely. That was the problem I was trying to tackle by saying these opinions need to be classified.

I mean, I can`t imagine how it is that there is -- that my cell phone information or your cell phone information is related to an investigation, a specific authorized investigation. I can`t imagine how that is the case. And but how can we contest it if we can`t discuss publicly or know that it`s going on.

And, certainly, what the president today stretched several things. He said that Congress had approved this program. Well, if Congress approved something with very specific standard and those standards were secretly eviscerated, that guts were torn out of them so they were meaningless, then Congress really hasn`t approved the program at all.

And so, I disagree with the president on that. And when he said that members have been briefed, well, I was one -- I think a few who saw a briefing on the cell phone side because of what I`d heard in the public press, but I don`t think many others outside of the intelligence committee got that briefing.

So, if the president believes a hundred members of Congress knew the details of that program under section 215, I think he`s wrong. I think very few outside the Intelligence Committee, and in terms of the PRISM program which I don`t -- I think very few ever heard of, I certainly never heard of it, I doubt that the more than the intelligence committee would have known about that.

MADDOW: Senator Jeff Merkley of Oregon -- thank you for explaining that to us tonight. You have you been more clear about that than anybody else commenting on this thus far. I think you made news here tonight by being so clear about it. Thank you for being with us, sir.

MERKLEY: Rachel, you`re very welcome. Thank you.

MADDOW: Thanks.

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