Transcripts For CSPAN2 Key Capitol Hill Hearings 20240622

Insightful with respect to the wall and if we have time at the end i will be happy to take some questions. Let me start with kind of what weve been spending our time on at the department the. This is the operational policy challenges of the department so the first challenge i want to discuss its counterterrorism and as joe and others now counterterrorism was the Founding Mission of the department and it continues to be the cornerstone of what we do compared to 2003 when the department was established the terrorism threat today is more challenging and more decentralized and diffuse and arguably more complex. We are more concerned about the foreign fighters who leave this country and others have traveled to another and take up to the fight and link up with a terrorist organization. They are concerned about the terrorist organizations adapted and skilled use of the internet to publicly recruit and inspire individuals. To prevent the travel of the foreign terrorist fighters the secretary represented the United States in an unprecedented interior ministry session at the United Nations Security Council to discuss the problem of the fighters and to encourage the implementation of un Security Council resolution 2178 including through the enhanced information cooperative expertise and other bilateral security programs. And we are also making security enhancements to the Visa Waiver Program which currently allow travelers from 38 countries to travel to the United States without a visa. Last year we added additional elements to the Electronic System for travel authorization. Application will also maintain the substantial economic benefits. On the domestic front we are working closely in a collaborative way with state and local Law Enforcement and coordination with the fbi to quickly and efficiently chair. Cochair intelligence with joint Terrorism Task forces. Weve stepped up to counter violent extremism through Greater Community outreach in the face of the very slick internet appeal of other terrorist groups its imperative that we strengthen the communities that have the ability to reach out to individuals who may be particularly vulnerable in the recruitment and might be prone to turn to violence. In 2014 the held over 70 meetings, roundtables and other events in 14 cities across the country and the secretary personally participated in a number of meetings meetings in a variety of locations. Cybersecurity is the second area i want to emphasize that has emerged in recent years. Its become one of the departments and frankly the entire administrations top priorities. One internal reflection of that is that the secretary has expanded our regular Intelligence Briefings that we have for Senior Leadership to include greater threat. This ensures the Senior Leadership across the department has a deeper awareness of the current security concerns in the cyber realm. At the recent data breach in the office of Personnel Management highlights the fact that the federal cybersecurity isnt where it needs to be. At the same can be said for Many Networks in the private sector including systems that operate parts of the critical infrastructure. Weve been working with a renewed sense of urgency across the inner agency to encourage full implementation of the system which is a basic layer of Cyber Protection that we make available to all federal civilian agencies and departments. We are also expanding the National Cybersecurity Communications Integration center. That is the governments 24 7 of how the. What we say more about that. There are the departments and agencies and the private sector entities that have regular dedicated liaisons and well over 100 private sector to collaborate and share information on a routine basis. The shares cyber threat assistance to victims of cyber attack and in this fiscal year alone theyve shared over 6,000 bulletins, alerts and warnings and responded onsite to the 32 incidents that over double the number of onsite responses for the prior year. Its also the place we manage the einstein system. Let me say that our ability to improve cybersecurity is to limit the statutory authorities. We try to get the legislation to address that and specifically agree congress should expressly authorized program and eliminate any remaining legal obstacles to its deployment across the entire government. We must share cyber ferret indicators cyber threat indicators in a manner that provides principles and criminal liabilities and the chair of these indicators and also protects privacy. And third we need a National Data breach reporting system. What we now turn to aviation security. Much of our Homeland Security counterterrorism efforts continue to center around aviation security. We are constantly making adjustments to respond to new threats and to try to stay ahead of our adversaries. For some of the changes in the threat environment we started requiring enhanced screening of select overseas airports with direct flights to the United States. Weve also prioritized the expansion of pre Clearance Operations at foreign airports. But declared that allows customers of Border Protection officials overseas to screen passengers bound for the United States at the front end thereby protecting the plane as passengers and ultimately the country. We now have 15 preclearance sites overseas in six Different Countries operated by more than 600 Law Enforcement officers and active cultural specialists. The most recent was set up last year and since that time alone weve already screened more than 500,000 passengers and crew bound for the United States and a bridetobe who denied individuals that were found to be on the terrorist screening database and the database. We are now entering into negotiations to extend the preclearance observations and intend to foreign airports. Before the area that i want to highlight his immigration, which of course is a huge and multifaceted area and one that they say weve been spending a lot of time on recently. Im going to talk a bit about Border Security. With respect to Border Security we have continued the trend increased to the border today the Border Patrol had the largest deployment of people, vehicles and aircraft, boats and equipment along the southwest border in its 90 year history the nations longterm investment Border Security produced significant positive results over the years may i have your attention please. This next panel is to be on privacy and National Security we decided to create a name in the program so if you look at this hell do we secure our borders and at the same time sure that information about you is not shared in a way that is inappropriate to that function. And its a real balancing act and the person who is going to negotiate that act today is a good friend and colleague who is going to be moderating the panel a congressman from texas, senior partner at the law firm here in washington, d. C. Who has the legislative Public Policy group, the congressman served four terms in the u. S. House. Hes a former captain of the u. S. Army and a Ranking Member of the House Committee on Homeland Security committee. During his term in congress, the congressman worked with folks from 9 11 from both sides of the aisle which is hard to do these days as you might imagine on capitol hill. He is a graduate of the university of texas school of law. Its a great pleasure and honor. Thank you for all the hard work that you do in organizing this event every year. But for 9 11 of us would be here who wouldnt be having the conferences, we wouldnt be having jobs and responsibilities that literally change the economy of the country in many ways. This morning i wanted to open up the subject matter with a brief video clip from the last republican president ial debate. You have said senator paul opposition to the nsa collection of phone records made the United States beat her and more vulnerable. And so far as to say he should be called before congress to answer for it if we should be hit with another terrorist attack. Do you believe that you can assign blame for opposing the collection of phone records in the terrorist attack x. Yes i do because im the only person on the stage that is but is actually filed applications under the patriot act was gone before the federal Foreign Intelligence Service court whos prosecuted an investigation terrorist in this country after september 11 i was appointed by president bush september 10 of 2001 and the world changed enormously and happened in my state. I went to funerals, we lost friends. When you ask to be responsible for doing this you can do it and we did for seven years in my office. And i will make no apologies ever for protecting the lives and safety of the American People. We have to give more tools to our folks to be able to do that and then trust those people and oversee them to do the right thing as president and president and that is exactly what i will do. [inaudible] [applause] i want to collect more records from terrorists and less records from innocent americans. Its what he thought the revolution over. John adams said was a spark that led, and im proud of standing for the bill of rights and i will continue to stand i want to collect more and less [inaudible] governor make your point. When you are in the subcommittee blowing hot air about this you can say things like that when you are responsible for protecting the lives of the American People than what you need to do is make sure the you fundamentally misunderstand the bill of rights. Every time you did a case youve get a case youve got a warrant from a judge. Im talking about searches without warrants indiscriminately of all americans records and thats what i want to end. I dont trust president obama. I know you give him a big hug and if you want to do that again go right ahead. [applause] the hugs i remember those that i gave to the family that lost their family on september 11, and that had nothing to do with politics. Unlike what youre doing by cutting speeches on the floor of the senate putting them on the internet and a half within a half an hour to raise money for your campaign. And while still putting the country at risk. I think that you get the gist of the discussion. And although those points of view are represented on the panel today. I want to introduce briefly the panelists come up with the, but introduce them and they will do it briefly. First we have Laura Donohue at the professor of law at the Georgetown Law School and the director of the george thompson, National Security and the law. Shes the director of the center on Privacy Technology and she writes extensively in the subject area and we are always delighted to hear from laura. We have jennifer, the assistant assistant professor of law professor of law at the American University Washington College of law. Prior to that was a senior counterterrorism counsel at human rights watch. Bob has been serving as the general counsel of the office of the director of National Intelligence for the past six years. Previously he was a partner at the firm firm behind the panels are prior to that served as the Deputy Assistant attorney general in the Criminal Division of the department of justice as well as the principal associate Deputy Attorney general. We have ron lead the former general counsel of the National Security agency at the nsa. He is currently a partner specializing in cyber cybersecurity and practicing issues and government contracts. We also have Dan Sutherland the associate Sharon Council National Protection and Program Director at the u. S. Department of Homeland Security. The Senior National Intelligence Service at the National Counterterrorism center prior to that he was first office of the civil rights and Civil Liberties division of the department of Homeland Security. So we have a very distinguished panel and im going to ask each of them to briefly in two or three minutes describe what they view as the current and emerging issue in the debate with privacy versus National Security. And then we are going to open it up and have as lively a debate as you saw in the Republican National convention. Hopefully a little bit more civilized. I would like to do is highlight three areas that i feel in emerging technologies are bringing us constitutional questions in the United States. First is the impact of the digitization and the scope of the digital Storage Networks worldwide and third is the shift is to is the shift to the big data analytics. Lets start with the digitization. The Third Party Doctrine is out of date and it no longer reflects how the world works. We know this stems from maryland has a case in the 1970s. And in this particular case, there was a woman that was robbed, her purse was taken. The police went into his home based on the registered trade order the court found they have no interest in the particular calling records and its on this basis that face all the data program continued in the United States. The fact is as many of the judges suggested that the zero plus zero still equals zero. But we have cell phones that follow us around and that information requires a lot more information about us if we have no privacy interests and the numbers dialed and received then we dont have any privacy interests just because we have more records available. And id like to suggest this is wrong. Its not zero plus zero peoples fear of debate coach zero. The amount of information you now have based on people not just on their cell phone but all of the data that we generate on a dalia basis is a significantly different than the type of information in 1976 or 1978 when the case was decided. The second plaintiff of point is on the Global Communications and digital storage. We rely on the processes of the high standards have accompanied the collection of information on the citizens and on the domestic soil in the foreign intelligence act. The problem is the communications no longer stay with the domestic balance so it didnt make sense anymore if you had a bad guy in london traditionally you dont need to go to the courts to get a warrant now it happens to go to the United States the government would have to go to the courts to actually intercept the communications. A very strong argument for the 2008. The problem is that works two ways. If im sitting in this room and it happens to go internationally now it can be collected. So the data isnt territorial and found my bound by countries borders in the way that traditionally we thought about privacy protections and recommended the countries borders. If i make a document by my students it might be in the finland server. Finally that is international. So the understanding of the boundaries of the is the way to protect privacy is no longer adequate living forward. The third and final point that i want to make the frequently have seen in this era the number of surveillance programs that have come to life not just just for Terrorism Surveillance Program that was talked about after 9 11 but that section 215 metadata and exit of order 12003. Weve seen the collection of the email metadata and the undermining of all of these arguments is the principle that is necessary to collect all of the information and then to analyze it. There are programs underway involving large amounts of information. Why is this problematic . Particularly at the point in which there is a convergence between the National Security and criminal law so this isnt a new question in many ways in the country toward cook discussed this in details in his institute when he was worried about the crown of the 17th century collecting a lot of information looking for potential evidence of criminal activity and been using it as a way to go after potential enemies. Later hawkins wrote about this and then james famous rail against the concept that government should be allowed to collect all of this information to look at the evidence of criminal activity. The fourth one was introduced at what youre seeing with this kind of rationale underlying the collection of the foreign intelligence collections at the plaintiff converges with criminal law you youre seeing the reappearance of the general which raises the foundational constitutional questions about the amendment. Thanks for putting together this content. I want to focus my remarks on two areas, one that incidental collection of more of us talking about the communications and global data and second under the radar problem associated with Law Enforcement actions that involved the crossborder access of data in the raise they think often overlooked security and privacy concerns. First the problem in the collection as i think everyone here knows both the Fourth Amendment and current statutory scheme governing the foreign intelligence information has protections based on ones identity in one location so it protects persons in the United States as well as citizens and other persons connections but it doesnt provide protection to the non citizens located outside of the United States if they lack sufficient United States and the the scams tracked the basic framework. When fisa was first passed, the warrants were required for all covered collections at the time and in 2008 with the changes its now the case of the government needs a probable cause to collect the communications of the u. S. Person to find the citizens and legal permanent residents wherever they are located but it doesnt mean a warrant because the individual targeting decision doesnt need court refused to collect the data of the citizens located outside of the United States and the result is a huge quantity of what is known as incidental collection by which the government is either targeting the noncitizens are effectively targeting nobody because it is engaged in what is known as both collection that sweet sandbox of personal information and a lot of people get information about u. S. Citizens and also legal permanent residents. There is a number of ways in which this happened. I wont get into that right now. Im happy to talk about it later. But i had to arguments about this. First the acquisition itself triggers the Fourth Amendment regardless of how to set up the views with regards to the minimization restrictions put into place. But this is something that has been an oddity in matters of congressional concern. If you look at the Amendment Act as while the congress spent a lot of time regulating and this does a bare minimum of the minimization of the subsequent use restrictions not on the retention and who has access to the data. Thats a mistake. Congress should do more. But Congress Also clearly recognizes the point of collection matters and thats why they spend so much time regulating on that area. And there are many reasons why this matters and i will name a few which is the possible Chilling Effect on speech, association, that results from acquisition the way that acquisition kind of shift the balance of power between the governed, the citizenry and the government and the risk of error were abused by matter how wellintentioned our officials are, no matter how trained they are. Theres always a possibility of the actors and less wellintentioned government decisionmakers in the future. So this brings me to the second point that the rules on acquisition are failing to adequately protect the u. S. Person in the Fourth Amendment and the statutory scheme in governing that they are meant to protect and that we need to rethink the way we think about acquisition and that we need to think about having the rules across the board that no longer depend on the identity of the person being collected upon the identity of the target because those rules fail to serve the interests that we are the most concerned about. I want to say that this is not the same thing. Its required every single time the government engages in any sort of collection. Im comfortable with the idea that there is an exception to some type of a foreign intelligence information. More ordinarily defined in a currently is, so the proposal wasnt necessarily write protected or restricted. We have to think about what the rules are but the basic premise is that we need to start rethinking beast distinctions governing foreign intelligence. And the second i just want to raise very quickly if we can talk about this more of the problem of Law Enforcement to access the data across border. We see this in the case of the Second Circuit with the government served for the emails and it turns out that they were located in a server located in ireland and microsoft said they are not turning over the data. They do not have the territorial reach and and now its pending before the Second Circuit. The case is about of privacy and security implications. The United States is not the only government that is asserting the power to compel the production of the data that is located extra territory late. The uk passed legislation and any company that is doing business within its territory to turn over the data, other companies and other countries are looking at similar legislation as well and i think that this case with the court ends up doing and what the congress does in response matters in terms of our own ability to protect our own data as well even within our own borders. So i just want to flag that as an initiative that we should be discussing. Thanks. Her to believe that the courts will apply the Third Party Doctrine in its full force to private documents you store on the cloud. I just dont think the courts will go there and i frankly find it difficult to believe the department of justice would argue that. I do think we have to make adjustments, but i also think it has to be a twoway street. Fundamentally the fourth abandonment is about prohibition of illegal searches and i think it will require a fairly careful analysis to determine what is reasonable in light of the current environment and that should take into account among other things what kind of restrictions are on the use of data. How comfortable are we with that . How can we be sure that data being collected is not being misused and what are the technological challenges inherent in collecting data in the current environment . Data that is out there and being collected by our enemy and is so i think it is a far more public into problems than simply saying that we have the threat the existing rules because they are not sufficiently protecting privacy theory having said that, i went to respond to a couple of points. On the issue of the thirdparty doctrine i think it is worth noting smith against maryland did not create a thirdparty doctrine. It was a case a couple years earlier in the Supreme Court that it involved bank records held by a bank in the court held that because you gave those records to the bank you have no interest of privacy in them to prevent them from being obtained by the bank, so i think we need to accept this is a fairly well rooted doctrine and i think it needs to be reexamined, but i think it needs to be reexamined on a casebycase basis looking at the type of data you are talking about and uses made of it. In that regard, boris said something about a principal that you can collect everything and then look into it for evidence of a crime. That i actually think is not true of any activity that we undertake. First of all, a program she mentioned the only one that actually involved a fun collection was the 215 telephone mandate program and that did not involve looking for evidence of a crime. It involved strictly looking for potential bar foreign intelligence information under cyclic controlled situations. In fact, that is true of nsa. Nsa does not authority to search Data Collection for evidence of a crime. What they can do is if in searching for ballot foreign intelligence they come across evidence of a crime they can provide that to the fbi for further investigation, which is a very different thing and one i think frankly has evolved over a long history of circumstances of insufficient coordination between intelligence and Law Enforcement. Finally, on the issue of a global communication, it is absolutely not true that we can collect an email between war and jen just because outside of the United States. As agenda mentioned if we want to collected communications of an american where that person is located we need a warrant based on probable cause. So, there are already substantial protections and i think the collection point that generates is sick a significant. It is not new to the law in this area. If you if your barber happens to be the target of a wiretap and you call your barber to make an appointment you will be infinitely collected regardless of the fact that there is absolutely no probable cause as to you. You might say there is a probable cause as to the barber, but that is not necessary. If your barber is an informant and talks to you and he is wearing a wire, then that can be collected. If your barber throws his computer outs without wiping it and abandons it in the government collects it in your communications can be incidentally collected. The general rule is that if there is a legal basis to collect one end of communication, it can be collected and then we do have immunization rules to ensure that the communications are not improperly used in a frankly, im not sure how you can connect foreign intelligence collection on any basis other than that because you dont have the ability at the front and to weed out all communications of americans nor would you want to if you could because some of those communications are going to be of a significant for an intelligent value, so i see no way to solve this problem other than saying have appropriate limited authority to collect foreign intelligent targeting foreigners and then protect the american citizens at the back and thats what we do. Can i make one point . I completely agree with jen, that this is an area where congress should be legislating rules and if for example after the case i mentioned about the bank records and passed the right to financial privacy act, which limited government access to records, i think it is far more suited for legislative action and im not holding my breath. [laughter] indeed, after United States versuss Congress Went out and pass title iii, so there is a long tradition tradition of the three branches getting involved and i think our opening remarks, i will Mix International football metaphors, so our opening remarks are like the free kicks we get in then i think what jim once is a free for all from the kind you saw on the video. When he said he was going to show is a video i thought the one he was going to show us was john stuart a few nights ago and you probably saw that, taking a chair into the wrestling ring and going at it and i think that is the kind of lively debate he wants to see from the panel. So, i dont know if my issues are really the ones that you will see in the headlines in the next your or not. I hope they are. They are based on kind of my observing these issues both while in the government and the private sector and some writing id done on this, so think of them as issues lurking to deep the service and if i can do nothing else this morning then kind of brought in the scope of it so it is not just about the latest twists and turns of the usa freedom act or what that crazy malicious dni is up to with the council or anything like that. I want to broaden the scope of that. There is a huge amount of homeland asked activity is the last panel showed that has not it has less to do with the Intelligence Community. One thing i learned when i was with the justice is there is a huge amount of activity prevention, interdiction, interception, a force that, all of that that is carried on at all levels of government, soak city, state him a you know all of that and a lot of that involves gathering information. Sometimes its called intelligence and sometimes its called Good Police Work or whatever, so there is that. There is Public Safety, which also involves a huge amount of gathering of information and then there is economic or Regulatory Information as some of you know who recently filled out a tax return or an application to do business or anything like that. When i would like this group to do, maybe not today, but over time is to start thinking about the privacy versus security tradeoff in light of all the different types of information and intelligence that are being collected or could be collected to work or is being collected of perceived operational or economic or privacy or constitutional issues and think about those tradeoffs as well and in thinking about that to make this even more complicated, i went to mention the panelists have already referred to some of these, kind of the wild cars. Meaning there is never a static balance and when his course is technology. The second is budget pressures, which you have already heard about this morning from the last panel, but that affects that as well and then the third, of course, is all of the type of interconnectedness boat that janice and laura have referred to, so that is the first issue. It is i think some attention to it as well as following all of the twists and turns of the latest patriot act issues would probably be beneficial. The second issue is, perhaps even more amorphous. It is this snowden links of course, was one model for how some discussions, some lively public discussion about intelligence collection and privacy versus security tradeoff happens. Sometimes maybe at the cocktail hour you can ask bob what he thinks about the integrity of that model of public discussion. But, i think we all need to think about other models, maybe even some lawful models. There is one model, which i am sure you have seen in the usa freedom act which allows for an Intelligence Surveillance to appoint amici, friends of the court either lawyers to argue legal issues or also interestingly an organization to help the court understand Technological Development or Something Like that, so that is one possible example to try to in a bit of a way get the public or surrogates for the public a bit more involved in something, which is inevitably secret. We need to think more broadly and imagine about other mechanisms for doing that. Traditionally, the Sticking Point has been well, it is all secret stuff, so anyone that gets involved in that has to be cleared and all that stuff. We have things like the president s foreign intelligence advisory board, but im thinking beyond that and by necessity we have to go beyond that and i think even the folks in the government on left and right might concede that if the government does not come up with a lawful mechanism there will and maybe continue anyhow to be lots of other evil taking measures in their own hands, so i will just threat wacky ideas and obviously this is stuff i thought up and i am not speaking for anyone. Bringing ordinary citizens for a day into three letter agencies and actually talking to them about what is happening and with all due respect i dont necessarily mean ordinary people like jen and laura and bob once he goes into private service. Although, there is a role for that and it would simply be like a jury. I know a jury has a constitutional dimension, but the question is like the overuse cliche of a focus group. Another possibility, which i know sounds ridiculous, but we all have been conditioned to watch these reality tv shows where people saying and get instant feedback, instant poll votes by text messaging for various have a better go intelligence programs lots of ways and none of this would bind the government or the aclu or the freedom of the Heritage Foundation or anyone else. It would be a way to sort of get some input from folks and frankly and maybe bob could address this later, inform people about either what is being done whether its being considered done or to input into some ways that could be. I think that would involve it wouldve avoided a lot of heart ache on all with the revelations of both vehicle action ended in my third plan, which may be the most amorphous of all, probably so i am sure all of you are familiar with the concept of privacy by design. Canada came out with which now everyone embraces the ftc is all over it and everyone is talking privacy by design and once the concept is instead of coming out with a Cool Technology or service or product and doing whatever you do with personal information and then later on trying to build in safeguards and guardrails and fences once there is some public issue about what you are doing with peoples data, the ideas kind of two planets ahead of time and design the product with privacy considerations in mind and figure out with the safeguards are in advance and maybe even design those into the product in how it works and how you collect data. That has been, i think, a large focus of a number of responsible companies in their new products and services lately. The question i have is to what degree is that entering into the way the government thinks about things. We have the Fourth Amendment and the statutory things and im thinking of something different. Something really beyond the Legal Compliance points to figuring out how will we actually operate this program or even how will we design its or what will we asked to go back to the last panel, what authority will we ask our overseers or in the congress and part of that, bob and dan will probably kill for me kill me for this, but having a rudimentary privacy by design presentation about how we will build it in from the beginning and obviously part of that should be security by design also, which is any information collected needs to be clearly linked to the security objective. So, those are my three free kicks. They wont be in the headlines tomorrow, but i hope they will be in the next year or five years. Im actually going to give a specific case study. Without these discussions about privacy and security and the debates and the balance for years. The first days, joe, you will remember the department for standing up and secretary told us, i dont believe in a trade off for a balance between liberty and security. I did believe we need to and can a commerce both goals at once and i think sometimes people laugh that off a bit, but i will give you a case study and see if we cant think that work of it and actually build on your comments or thoughts about privacy by design. This is a specific case i want to mention that is in the news now. You probably know there are a number of legislative proposals currently under act for consideration on the issue of information sharing in a Cyber Security. It was mentioned in the panel before and basically the question is, how can we stimulate or catalyze or incentivize companies in the private sector to share information about malicious cyber activities or potential cyber code in activities with the federal government so that Government Agencies can be informed and to do their work whether their work is to begin investigating a crime or their work is to try to help remediate , whatever has happened with the network or whether their work is to try to spread out that information about that particular malicious activity to others so that others can defend themselves. Really we are trying to create a robust real Information Exchange , a series of exchanges, but Information Exchange or information comes in, everyone learns and it pushes back out and everyone can defend themselves. The president actually announced legislate a proposal in january in the house is passed to build on this and the senate has a bill that you heard the Previous Panel their employees to consider. Theres a lot of activity in this area. Now, to make information sharing in Cyber Security really work we need a new generation and a new revolution. We need to have machine to machine sharing. Right now what we have is really great and everyone has worked hard to get to this place and we have a lot of humans involved. We like humans. We are humans and we enjoy having them, but it will not work for us in this environments. You cant have humans taking telephone calls, analyzing code and three days later saying theres something here, and everyone else and telling them what is going on and i used our defend yourself. That is what we have now and its good, its excellent, but we have to take it in the next level. To problems with machine to machine sharing and one is a technical problem. Have you make that work . That actually isnt a bigger problem. We had a lot of progress on that and we can talk at that with some length, but the second problem is this panel, how do you deal with privacy issues in information sharing, so here is the specific or im trying to make it specific for you. When information is submitted to us, it could include personal information. Spearfishing campaign, you will seven formation in and that has personal email addresses on it. The body of the email could have something about your wife, your personal life, whatever, do you want that, do you want your company sending that to the department of Homeland Security and spreading that around this Broad Network of whoever has connected to them . It could also have proprietary information. Company identifiers and things about the way the company may organized their networks are other things about the company. Does the company with their proprietary information sent to the department of Homeland Security, shared allaround . No, you want that scrubbed. You want to make sure it is anonymized and if you are convinced and confident that you can send potential malicious code to the government entity, it is anonymized and then shared and you will no problem with that. You will like that because you will benefit from not also, benefiting from other peoples bad experiences and learn how to defend yourself, so we have this robust sharing information because everyone is confident in my personal information is not being lifted. The problem is that Law Enforcement agencies once that information now. They want that information in real time. So the information comes to the department of Homeland Security and they want to its. They dont want some guy who looks like hes from you picture the geek squad and you take your computer in and there some guy standing across the aisle and when can i my computer back to you think, so you want to take out the human because the lawn for the agencies want it quickly. So, this is a real problem where privacy and security are clashing and we are trying to figure out the solution right now. As is often the case there is a way to make both interests to set by both interests. It really depends on, i think, some tried and true processes that we are familiar with. It takes the interagency, thats the first thing and we are working with people all across government, dni, fbi, all across , thats Homeland Security and we know we are familiar with that in the homeland secure to context and the second thing is it takes a lot of work. That easy answer is this wont work and we get that a lot. It does work. Through dozens of meetings, 20 plus agencies, we have poor through these issues over the past number of months. One example, we did a survey of the cyber analysts at all the Operations Centers in the government to do cyber analytics and we asked them, what data specifically do you need, what do you not need, what is critical in the first instance, so we have a survey of all the guys who do the data in daytoday exec with a neat, what they feel they need. The third thing is it takes Strong Foundation of previous work. We can build upon a great deal of Technical Work done for other purposes. We have a protocol for structuring how machines connected to one another and we had to leverage that in the fourth thing as it takes really strong stakeholder relationships , another thing we are comfortable with in Homeland Security. Dhs has those with privacy and Civil Liberties groups. We just worked on those over a number of years devoting a number of communities and so we have been able to leverage those unlearned from people there. So, even though the legislation has not passed since the president s legislative proposal in january, we have been working in october the fall, but i think october we will be able to begin ingesting or receiving information. By the spring we will be able to begin sharing back and forth and by next fall about a year from now, we will have the capability to make all of that Technical Work that is being done available even to those who dont have sophisticated Cyber Security operations. But im trenches adjust and i will close with this is, there are ways to take specific case studies to build to work through both privacy and security interests. Here is one we are really rolling up our sleeves on and you heard in the panel before this is a senate is even dealing with this specific issue and trying to get their arms around it and get comfortable with it. If the carters feels countable, we will see legislation. If private Sector Companies feel comfortable we will see information sharing. So, these issues have a real practical meaning. Really play out in a day to operational issues and orientation, so with that i will turn it back over to you. Jim, can i make one quick point in response to irans point about privacy by design. Im not sure nsa was like when he was there, but we actually are very focused on privacy by design and building it at the front entered with a number of mechanisms to agencies have their own privacy and civil liberty officers as well as officers of general counsel. We have the privacy and Civil Liberties board, which i know is represented here today, which has statutory obligation to ensure all of our policies and laws adequately take privacy into account. The president a year and a half ago specifically directed we take privacy and sybil civil liberty consideration into concern in developing all surveillance programs. As required legislation we had to work with congress on it, so people may disagree with the outcomes, but it is not that we arent trying to build privacy at the front end. I just want to say i was not suggesting or implying there is a lack of privacy by design. At any time in the community, but maybe its a rhetorical thing in par, which is it would help bridge the use of understanding between what the government and Intelligence Committee does and how people in the private sectors think about privacy if they could start to talk and in some the ways that bob was just speaking. Just in response to the last three speakers and ron, you are interesting kind of blue skies approach, but it makes me uncomfortable and rather nervous to think the majority area and tenants would decide individual rights to read the point of the bill of rights was to protect the minority against the majority, so the idea of canvassing people to see what they would be willing to trade off, at some levels is in contradiction to the whole purpose of the bill of rights is to protect minority views against the majority. Along those lines, reasonableness, so in the Fourth Amendment it is not to go originalist, but unreasonable meant against reason or against the common law. , not the time they and general, which was the broad connection of information on citizens to use it then to find evidence of illegal activity to read thats what general warrants was, so when the fourth the memo says unreasonable if you go back to these cases in the context of the time it was understood in a more moderate sense, which bob rightly says we understand and we say what is reasonable in this context and it meant what was against the common law. From this according to cook and hail and hawkins it was against magna carta to give the government the power to collect information on people broadly and then to use that information to find evidence of illegal activity. There were good reasons for third there were reasons that relate to the harms that can be perpetrated against anyone who objected to the governments policies, any social, economic or political actors they wanted to target the guitar. There were also writes that were valued in and of themselves and the import the democratic the liberation. The importance of solitude of self actualization, of intimate relationships, of being able to build a social network and have diversity in your intimate relationships and decide what level of intimacy you wanted. There are values to these rights, quite apart from the security or freedom contemplation in those tradeoffs and these were values recognized from time warner within the british constitution and later by the american constitution. I just actually wanted to respond to one thing that bothered said about collection and he made the point which i agree with which this is not a new problem. It existed before the rise of faisal, before the rise of new kinds of data and the growth of loot global internet, but its also two things have changed. One, the scope of information that is being collected has changed and the quantity of information and so that i think requires us to reconsider some of these roles including the roles of collection and i just want to read a quote from the 1978, house report when a first pass. There was a debate at the time about as i said earlier there was a decision in the 1978 legislation to require warrants for all collection that was covered at the time. There were a number of numbers of congress who objected to the idea that warrants would apply to the connection of data targeted at aliens or nonresident aliens who could also be covered in certain types of collection and at the time the house, the majority of congress rejected those objections and they said that the warrant required not primarily to protect such persons, those aliens, or rather to plett protect us citizens who may be involved with them and to ensure the safeguards inherent to the judicial warrants cannot be avoided by termination as it sedition ship and i think that understanding that recognition of the risks of targeting collection based on lower standards of non citizen located abroad applies with much greater force today and something that requires us to reconsider some of our thinking about incidental collection. Stomach i just want to respond briefly to one of lauras examples. I was not advocating a majority should decide who advances, what gets done in the Intelligence Community. So, in that way my analogy to america star search may have been incorrect. I was suggesting that the public needs to get a better insight and understanding about what the choices are and then the governance and the folks that make these decisions can factor that into account. I think its probably not responsible to suggest that people in the government who have to follow the constitution and the laws were to simply do the majority area people say. I have one other point about majoritarianism. The statutes under which the Intelligence Community and the whole government operates are actually passed by the majority rule. Even the judges, the federal judges who adjudicate these things are nominated by president who was elected by a majority, by the Electoral College and thats another story and confirmed by the senate, which i am told can be a part of some a person process. [laughter] just in response to johns point about the example of collection, i dont think there needs to be rules to protect the information of us persons incidentally collected. I just dont see a way to do that other than some variant of a back and minimization procedures, which is what commerce adopted in title i and covers applied in title iii when it authorized electronic surveillance to begin with. I think the privacy and Civil Liberties Oversight Board reports on section 702 or some other document that we have released has indicated under section 702 collection, which targets noncitizens outside the United States, we are currently targeting tens of thousands of selectors. Because this covers a broad scope of foreign intelligence collection. We are never going to require warrants to collect on Vladimir Putins cell phone or to try to collect on what al qaeda terrorists are doing. It would bring foreign intelligence collection to a halt and so what we need to do and this go back to the first point i made is we need to find ways, number one to explain what we do, which we have been doing for the last couple of years and number two, to try to put technological, legal and oversight restrictions in place to satisfy people that information about americans or information frankly about any persons thats being collected is subject to a puppet productions and privacy and not be misused. In fact, in the last 20 years of all the information that has come out there has not been any indication that people have been persecuted for their political beliefs or misinformation has been used. In fact, the system we have in place is working reasonably well to provide privacy protections for information that we do collect. So, on the 702point, i think its really important to look at the controls put in place because 702 data right now courted to the privacy and Civil Liberties Oversight Board the fbi routinely uses the database for criminal purposes unrelated to the foreign intelligence purpose for which the information was collected and i understand that some people might have the view that one set of information is legally collected you dont need a warrant to go back and clear that data. I would suggest there is a use restriction in the Fourth Amendment and if you collect that information for foreign intelligence purposes to use it to then check out bank robbers in california, for purposes unrelated to some foreign intelligence purposes or which it was collected then you should be required to go back to the court get a warrant for a database of the source, so i think the 702 database actually brings up the tickler concerns about confirmation is being used, whether you that information can be used or if there is judicial restrictions on that or not and how that plays out terms of the warrant requirement of the Fourth Amendment when applied to criminal context. Well, as you can see we have some degree of disagreement and its fascinating. I dont know, we may have time for a couple of questions that there is anyone that has a burning desire to query this talented panel we would be happy to allow you to do so. Yes, right back here. Hello. My name is david hudson and i recently remember hearing the director of the fbi testifying on strong encryption. And how many of the leaves the fbi are going dark because the strong encryption and asking basically for industry or perhaps congress to force industry for keys to the castle so they could get in on one side or the other with strong encryption and it strikes me that might work in america. Are not sure in a globalized world we are talking about privacy by design, but if that technology is getting to the point where we cant see whats going on in any way shape or form and i would imagine there is a way that will anonymize the traffic itself is a goes to one server and thats it. We dont know what happens with without some sort of encryption. Is that something that needs to be looked at and wait in some manner, not just nationally, but internationally amongst our foreign partners because a lot of their territory can host these sort of services and, of course, there are those who may not want to help us thinking of certain asian powers, so if there is anyone who care to respond on that good question. Bob. I think the Administration Position on this is reasonably clear. Strong encryption is a good thing. It is a way to protect peoples privacy. But, its also a bad thing to the extent it makes communications invisible to us and there is no question that did this is a problem for Law Enforcement. Not only in terms of foreign terrorists, but domestically as well and what we need to do is get private industry to come to the table and a flying the kind of creativity and technological insight that they have used to develop remarkable tools we have today to try to find a solution that protects peoples privacy while at the same time allows Law Enforcement to get information it needs when it has appropriate authority. I dont think the problem is insoluble. I think sure, it is true its sort of a truism that if there is opportunity for Law Enforcement to get access you have to some extent we can encryption. The question is how much of you weakened it, how much risk are you willing to take for the great social benefit. After all there is currently a statue called leah which requires telephone companys to configure their services in a manner to permit interception of communications. That is a little less secure than would we be if we didnt have this. It creates vulnerabilities, but we as a society have determined that that is a risk we are willing to take because the overall social benefits is a significant. The question is, can we find that kind of solution in the inscription space where we say we have a manageable risk youre in the overall social benefits are sufficiently great and that will require efficient with the companies and their willingness to engage with government to work on these solutions. So, i would just add to bobs remarks Economic Security and this is often missing from the National Security equation, but we have taken a huge bath since september 2013 or 2012, i guess really well, guess twice 13 on our cloud computing. By some estimates a hundred billet hundred 50 billion lost in which the way the usgovernment interaction with us companies has undermine competitiveness abroad. A certain amount of opportunity is going on. To the extent we drive this as a Law Enforcement or National Security issue domestically there is also an economic price to this end that needs to be part of the discussion and part of the equation. Its not just at an ms sea level in terms of discussion, but also to make sure us economic interests are protected longterm and interest of us National Security. I think that is correct and i would only add that i would think at the end of the day there is a reasonable possibility that if American Companies have a transparent environment where it is clear to the world what we can do and your average persons face with a choice of m id estimate that a google or microsoft or apple were i know what they are doing or will i use some romanian Communication System where i have no idea what they are doing then we may still retain a competitive advantage even under those circumstances. I want to thank the panel and hope you give them a good round of applause. [applause]. [applause]. [inaudible conversations] [inaudible conversations] a lunch break now in this American Bar Association homeland secure to conference and they are excited to take about eight half hour break and when they return, Panel Discussion on immigration and later on a look at the role of lawyers in Emergency Preparedness response. While we wait for this event to resume and our live coverage to continue an earlier panel on regulations and legislation with lawyers from the house and senate, Homeland Security committees. Good morning, everyone. And thank you for joining us and thanks for the kind introduction is more that i try to stay gainfully employed, so thats probably better off not. Very excited to have our panel this morning joining us and to give you an overview of the departments latest legislative and regulatory updates. In particular, as i introduce our panel of like to know that we also try to keep things fresh and current, which means that and i will introduce in the order our panelists are represented from the department is tia johnson who yesterday was the Senior Advisor to the director of ice and the last night was named as the new assistant secretary for legislative affairs for the department. [applause]. So we have been keeping our fingers crossed that the timing would align on the appointment so she could join us on the panel this morning. I will give you a bit of background and introduce the remainder of our panelists, which we have a great and distinguished lineup. Tia actually as i mentioned has been the advisor to the director of ice and is also a recently retired us army judge advocate and specialized in international and National Security laws and participated in many aba panels and on committees, so you may know her from those interactions as well. She had served as a Legal Advisor within the department of defense and us, korea, italy and bosnia and also Teaching Department at the jag school, just became the first africanamerican fema to be selected to the rank of colonel in the jag core in 2002 and is a graduate of temple university, jag school from uva school of law. Next on our dhs panel is another longterm veteran of the department, Christina Mcdonald and she serves as their assistant associate general counsel for Regulatory Affairs and at dhf served with joe and i and others, previously served as the deputy and attorney advisor in the right interrogatory Affairs Division prior to that was a Trial Attorney at the federal administration and is a graduate of Franklin Marshall and the university of Maryland School of law. Represented from the senate and the house side for our general counsel for Homeland Security committee of Homeland Security, supporting chairman mccall. She has been the council since 2011 and has been interacted on a lot of topics including privacy, Civil Liberties and other constitutional questions and is now the general counsel help with to develop legislative agenda. Jd from new York Law School and also had several distinguished clerkships and also an aba and last but not least the chief counsel for Homeland Security on the Senate Committee for Homeland Security and Government Affairs and has been with senator carper in that role for several years and since 2011 and prior to that also if you Google Stephen youll find some of his articles when he was a Congressional Research service as well. So, with that great panel and what we wanted to do is just note that as we are looking at the legislative and regulatory agenda for the department, we are almost 15 years in. In the operations and in policy of the department, founded in 2003. The Homeland Security act, when it was passed evidence of bipartisanship and signed into law november 2002, set off an amazing reorganization of the department with a 22 agencies to read your another story, came together, multiple new directorates and it do fresh ideas about government should look like from an up the structure side and also from a policy side and how to respond to the needs of 911, post 911 world, but that was 13 years ago almost. So, our operations inside the department have continued to evolve to the present needs be it on immigration front, if the structure of the cyber front that inpex are legislative priorities, our ledges rogatory priorities and what we want to lay out for you today is a presentation that looks at how internal dhs is responded to the Homeland Security needs through its regulatory agenda and i have asked tia to just put her on the spot early in the morning to give a couple minutes of thoughts on the legislative agenda with the knowledge that she is to have powers in. We are looking at this from the perspective of we are constantly responding to operational policy needs both internal needs and those of public and most certainly about partners on capitol hill, so how are regulatory legislative agenda reflects that. Also, then looking at from two points for the hill. First how economists legislatively responding to the needs of the department and Homeland Security and the actions of their undertaking nominations and other steps that are the day to day needed to sustain our operations and ensure that we have what we need. While in engaging in robust debate about the latest policy issues, immigration, cyber and others. And concurrent with that i see you have hope you have seen in the data you have available to you as congress as a creator of the department of Homeland Security through the Homeland Security act is not only acting in support of the mission, but also now evaluating potential changes to the Homeland Security act 12 years in under the reauthorization front and that is something that john in particular will focus on. With that i wanted to take a couple of minutes and turn to tia. Of pressure at all. But, knowing your experience in the department with ice, but also prior to that, tia has an extensive background and she and i chatted in the Homeland Security realm dating back to not only the founding of the department, but actually prior to that with some of the homeland issues. She and i share a conversation about just thoughts about how that might impact that agenda, so i promise it will only be a minute or two. Good morning. Thank you. James said my announcement came up last nights while i was sitting over at this table i got email that the president signed my appointment, so i am the assistant secretary to read i havent taken of yet, so im brandnew. Yes, james and i were talking. I could not appear until i was official and so in the course of trying to prepare james and i were talking about what would be the legislative outlook and i had mentioned the fact that i followed the development of the department because i was teaching at the jag school at the time and in the wake of the september 11, attacks from the military perspective the issue became, what actions the military was taking and were those under the umbrella of homeland defense, which we called it or some people were saying the statutory prohibition against the military provided some type of support. Lawenforcement have action and so intellectually then i had to start grappling with that to answer that question and we came square within the fact that yes, it was well within the constitutional mission of the long forces because we were defending homeland. We had been attacked and thats what caused me to start following what was happening on the civilian side with the development of Homeland Security. So, yes, im with others who think mr. Whitley who develop the discipline to read with regards to the department, yes, we are and i am looking for steve. Steve did a great job because it was so unknown as to whether i would show up today and he did a great job of laying out what our legislative priorities are. One of which is the unity effort, the recognition that the department was quickly put together in the wake of the september 11, attacks, taking the recommendations from the 911 commission and we pulled together 22 desperate agencies. So, we have gone through a process and the secretary is trying to advance that process and under what he calls his unity of efforts he issued a memorandum last april to kind of lay that out. But, in preparing for this i found an article that talked about dlg and the act and which went many of you are familiar with dod was created under this security act of 1947, we ask a got her name, the department of defense in another act in 1949. That was the last time there was major legislation dealing with the organization of the department of defense until 1986, when we had the Goldwater Nichols act and one of the things i will read this quote quickly, but one of the things that dan gerstein said in an article back in january and described this and the need to have something similar to that poor dhs and what he said was, the legislation helped clarify roles and responsibilities, elevated the imports of strategy formulation, provided more efficient use of resources, improved the administration, staff management and effective operations and perhaps most importantly build a unified culture within our diverse departments. So, i would commit that those same parameters apply today. That is what the secretary tried to achieve with the unity of effort as noted that the whole idea was that we had 22 components, different traditions , different cultures, but that overarching systems and processes could be put in place to create a more effective and Efficient Department of Homeland Security. So, that is one of the secretarys main priorities and driving through this whole unity of efforts. You will hear in some the legislation we are looking to have some of that enacted in the legislation to help with our organization and structure. I think that is it. That answers your question. I think it does. Short and sweet and thanks for the referencing as well. I think it has a good framework, also. As mentioned, while we watch the legislation, the daytoday operations of the agency have to continue and part of that obviously is getting feet or movements to legislative mandates and a twoday requirements for agencies as well as the department as a whole and to that end i will turn to christina to give us an overview on where things lie in the rulemaking migratory front most recently. Thank you, james. I am the person on the panel that will talk about regulation at dhs. There are actually three areas i will cover. And will start and talk about the overall level of dhs rigatoni program. I will give you statistics on activity within dhs across our components and over the past decade. I will also then i went to disco several notable lug regulations from last year and what is coming up in this coming year and a third, when to share with you some of the things we have heard in the regulatory world from the other two branches of government because we have heard some things this year. That is what i will cover. First, went to start with like the overview of the dhs regulatory program. The dhs regulatory responsibility is brought into verse that aligns with our mission, which is brought broad and diverse. There are several components in dhs that issue regulations critical to the Homeland Security mission, but the majority of our relations, from the seven Regulatory Compliance Operational Response ability, basically the one that highlighted in this chart. Those are cbp, ice, cas, coast guard to read ocg manages the regular tour program for dhs, but these components are implementing and enforcing them. So, in our unified agenda from fall of 2014, we had 141 regulatory actions and that are things that are either in progress or projected for the next six months, so in progress might be a proposed rule that has not been finalized. Of the 141, what is interesting to see is that the largest number of red or coast guard and have the largest regulatory in that department carried if you had coast guard nci s youre basically at 60 of regulation. As far as our number regulations , i had this table that shows our significant regulatory actions over the past decade. In the war than a decade, 11 years. I have only discussed significant regulations and significant is a term of art. It refers to regulation that omb reviews. Generally that means relation that are high cost, impacts other agencies or policy issues. In these numbers you see i think what one would expect in the early years in 2004, we had a huge uptick and at the end of administration there tends to be more reds and thats what you see in 2008. 2014, might look high, but not really. There were several temporary notices and i will review those to read we had eight with 2014 making it look higher than it is carried the only thing i want to add as these regulations are significant, the term of art, dhs issues several more regulations, tons more. Not significant ones, just ones lb does not review, regulations, routine a frequent regular, so when i talk about here these are a fraction, our high cause more controversial more novice relations. That is the overview i wanted to give in our regular tour program. Next, i want to move to notable regulation that we have seen last year and we will see visscher. Of course, immigration has a huge i think as everyone knows in november of 2014, the president and secretary announced a series of executive actions related to immigration. So, there are several regulations that come out of executive action. So, a few have been published and we have two and went to mention, both are cas. One is that h for final rule is not published in february of 2015. And extended eligibility for Work Authorization to the spouses of high skilled workers. That regulation is not effective and theres obviously more technical, but im giving the highlevel. There is also a 601 proposed rule that cif published and that is only a proposal and it proposed to expand provisional waiver process that dhs initially put in place in 2013. That will not be extending the process to all statutory eligible people. So, those are two we have published. We have several more in the works. One of them is an ice regulation, optional practical training or zero pt. It is a program where foreign students can study after study in the us they can request additional months like an additional 12 months and then they can stand their student visa status here as it zero pt. In 2008 there was an extension of this for student science technology, engineering and math students to stay an additional 17. There is now another rule in the works in this realm and that is being developed by ice. In addition, cas is working on a rule that would identify conditions under which touts it onto the numerous can be in the us on the idea that they are able to provide significant public benefit. That is if youve the many things happening with immigration. There is a lot of immigration regulation right now. That is something you should expect to see in the coming year. Just also wanted to mention temporary protected status because we have had several notices extending protective statuses. Tps is a temporary benefit that allow certain eligible and nationals of certain countries to come and stay and work in the us. Doesnt lead to any kind of permanent ltr or permit immigration status is also not a regular but under the government executive order we can use these, so that is why we are involved in them, but in 2014 and 2015 dhs either designated or redesignated or extended tps for 12 Different Countries. The secretary can designate tps because 3 grams, ongoing conflict and we saw that with the civil war in syria. For an environmental disaster and we saw that ongoing with earthquakes in haiti, nepal, el salvador, hurricanes in nicaragua and honduras and thirdly, the secretary can doesnt tps for other extraordinary to break conditions. So, without a lot of tps activity in the past year. Second category i want to discuss is security regular shift. On the tsa front, tsa has done several relation the past year on passenger security, so with that tsa can collect fees to provide security services. Tsa original implement of the in 2001, but there has been several pieces of legislation that has changed that. Tsa has issued several rules, but their most recent rule was in june of 2014. Basically the amount of the fee has been adjusted and so as i said there have been multiple rows with a lot of legislation, but they now have their rule in place. Another security rule we saw, so with this is actually, take a step back, the Visa Waiver Program that allows eligible citizens of certain designated countries to travel to the us without a visa. Is an Online System people use to travel under the program. Cbp had developed a program a couple years ago that they had set a fee for the program, but now they have finally closed at that rule making an issue the final rule in june. The last security right i want to highlight is the npp dc, a guided document that came out and 2040 legislation the only proposal at this stage the coast guard also issued a final rule on on the automatic Identification System they are transponders and the vessels and they hope the ships and vessels avoid collision and avoid the baroness and that regulation is finalized. They do traditions on the proposed rule to large offshore vessels. They should have a final rule on the towing vessels that are the vessels that have taught about. There should also be a greater regulation. The card readers for the transportation identification credentials. We have heard us this year in the regulatory front. They impact the regulatory process and bills like the act have passed the past two times previously before that. It would require congress to approve major rules before they take effect. It would require the joint resolution of approval for the major rule before it went into effect. And then a major rule is tracked from the congressional so it means the highcost rural that is going to have major increase in costs or that would have a significant adverse impact. So its only reported in the committee but that would establish a retrospective review commission for a look at the agencies that need to eliminate and then before they can issue, they would have to eliminate one by the commission its like a cut and go procedure. Weve also seen the overt act which would require you to have the administrator report in the planned year. The department of Labor Regulation changes their mind in the longstanding interpretation , the circuit originally said if you change her mind you have to go through the common rule making and the Supreme Court came around and said no. Its called the veteran doctrine and its contrary. You cant change your mind. You dont have to go through it if you do that you are putting the putting their retirement and if that isnt in the administrative procedure act so you dont have to go through the rulemaking if you do the longstanding interpretation. And they only other one i want to mention his michigan versus epa which is a recent case that was in the news because it was decided in june of this year in the regulation saying that you have to consider cost in deciding whether to regulate. So, theres been a lot of talk about the cases and there will be more on how it will impact the regulatory world. So i want to close and have the diverse regulatory agenda and expect to see regulations in a variety of areas and there will be several highpriority regulations and finding the monitor to judicial legislative. Thank you. The summary says the more things change the more they stay the same. I also note straight activity and all of the above. That does remind me if we start at the department in the counsels office i think one of the very first calls that i received was from the federal registered unified agenda folks in the end of march, 2003 saying the unified agenda is overdue. What do you mean, so its been a great revolution to see how the process happened over the years in the year of leadership. So moving from where we are internally and in forecasting out turnover to talk about how they are taking note of those needs and operating in the existing framework of the Homeland Security act. Thank you for inviting me back here. It is a privilege and honor to be here talking with everyone about what we are doing here in congress. Im going to break up my comments and talk about Congress Supports the hsa and conducts oversight. The oversight, but a station and last but certainly not least the budget. The senate has already given advice and consent role and this is an area that i know my boss has taken very seriously. Youll hear them often set in the nomination hearings that are organization, the size and scope of the most important thing for the organization and thats how they work incredibly hard in the president ial nomination to do our due diligence. This moved the two nominees for the tsa. There was over a dozen vacancies at the dhs from the secretary on down and so we worked really hard to move the nominees through the committee to fill those vacancies but by and large we worked incredibly hard to fill these vacancies. Thats on the leadership and again this is something thats incredibly important to not only engage with every other agency off there. On the oversight front, you know, at the end of the day the oversight agencies are carried out in a way that is consistent. So the congress. Spin it any time on the website cspan. Org we take you back now to capitol hill. Its holding a Homeland Security conference this afternoon coming up at Panel Discussion on immigration live coverage. As we move towards this next spot to be on the agenda this we year it always will be. Now we process those people as they want to come to the country how the complex issue and how easily demagogues. We have picked a panel that will address this in a considerable fashion and we need to lay out some of the challenges that we have in the u. S. Immigration law and policy. Ive lived in immigration all of my career and prosecuted as an illegal alien transporting case as a tremendous education i learned a lot more in i thought that i knew of the general counsel in the department of Homeland Security in this area so when i was there i needed to have somebody working with and for me that was knowledgeable, and fortunately was part of the team early on as an attorney and he was a partner. Its the chief counsel for the u. S. Citizenship and Immigration Services and also served in texas and we are really delighted to have lyndon moderate the next panel. We all recognize joe and polly. If you came here expecting the lunchtime food fight over the birthright citizenship i think he will be a little disappointed today we will have the leading experts on the Immigration Law that represent the government could come from the hill and advocacy organizations. We will hear about the issues that are really going to be going on here in the last year and a half in the administration she currently serves as the Deputy Assistant secretary for immigration policy at the department of Homeland Security. But prior to that position she was the director of the immigration policy center. For a number of years she served as a senior loyal at ins and the department of Homeland Security specializing in the refugee and asylum law, and she also did it for bush bush if you up to the late senator kennedys office during the robust 2007 immigration debate. To her right is the professors International Expert on Immigration Law and focuses on procedures used to adjudicate immigration cases still in opaque topic to be. But she directs the law in the Government Program and i do recommend for any attorney that is going to tackle the Immigration Law that you would read her article called Administrative Law through the lens of the Immigration Law. To the right is granted the director of advocacy for the lawyers association. We will get their. Its Refugee Service and u. S. Committee for refugees. Hes one of the most respected voices on very controversial issue that has testified before the house and the senate. Finally but not least is very person who recently assumed the position of the democratic chief counsel for the subcommittee on immigration and Border Security in the house of representatives. His undermining Fulltime Position is the chief of staff for the ombudsman to u. S. Citizenship and Immigration Services. The topics we are but a cover is the most likely likely to drive duration policy in the final year and a half. So we are going to cover the president s signature action on daca in the favorite is announced in the last six months into the challenges to the Deputy Administration facing on the southern border with unaccompanied minors, and finally the recent president ial announcement regarding the proposals to modernize the visa immigration system. With that im going to sit down and talk and jill is going to take the substance and then i will come in with some questions. Thank you as well to the administrative section for hosting this institute. I am always happy whenever i can do anything with the administrative section. It is a Wonderful Group and its great to be here. So, my task is to fill you in very quickly on one of the most controversial immigration aspects in the last year or so and that is the president starting of the two things called daca and dapa. And i also have to stop and think and if you dont think about immigration time all the while that sounds funny, daca and dapa so what is that. So it titled arrival and the third action for parents of american and lawful president s. Since both of those terms have the word deferred action, im going to explain to you quickly what the third action is in Immigration Law and then we will move into how this has all ended up in the headline. So, deferred action is a temporary reprieve from removal. Its an exercise across the discussion in Immigration Law and its a signal that an individual is a low priority for the removal. Its important to know that it is revocable and it doesnt provide a lawful immigration status. It just is a revocable statement from the government to a particular Foreign National that they are not high priority for removal for a certain period of time. Deferred action has been around in Immigration Law for a long time. Its not new. Its not something that president obama came up with himself. In fact, john lennon received the deferred action in the 1970s. So, thats our go, cool, hip connection. Mary is singing over here. What is new is the Obama Administration is using deferred action in a slightly innovative way through daca and dapa and its trying to harness the Equitable Relief available. Before daca and dapa even back i remember when i was practically Immigration Law but a fraction sort of a mystery wasnt aware to the private immigration attorneys. Who you asked for deferred action its like you knew it existed, but how exactly you got it and how the government decided who was eligible with a mystery. So its a little bit less of a mystery through daca and dapa because what the Obama Administration davis released a policy memo that said here is the criteria that our agency at adjudicators should consider when deciding whether or not to grant the deferred action within daca and dapa. And so, this method allowed for the individuals to have a better sense of where to apply and what the government will think about when deciding whether or not to grant daca or dapa. And so theyve been in place since 2012 and that is aimed at individuals who arrive. The children have lawful status and that they and that they give then again is not a lawful immigration status but its a signal they are not a high priority for the removal and it also makes it eligible for them to apply for the employment eligible documentation. So, daca is 3yearsold and some data tells us that approximately half of those that are eligible have applied into the number of falluja 750,000. And 83 of those that have been granted originally is good for two years and had applied for renewal. Now, dapa is a proposed initiative similar not the statement that would apply for parents of u. S. Citizen children or children who have had lawful permanent residence in the deferred action to those parents. Dapa is estimated at 3. 6 million individuals who would be eligible for dapa. But we dont know yet how many might apply because dapa hasnt been implemented because the u. S. District court judge in texas preliminarily enjoyed dapa and also some proposed changes. And the judge concluded that dapa violated the administrative procedure lacked because the Obama Administration erroneously invoked to invoke the policy memorandum exception to the rulemaking requirements. So, for those of you im sure in this crowd his crowd are familiar, but if you are going to a font to want to use the notice and comment rulemaking. But you have to use it correctly. Its in Immigration Law that i spend a great deal of my time thinking about so on the one hand i was excited. On the other hand, i was disappointed because i disagreed with a lot of the District Court judges conclusions both on the Administrative Law and the Immigration Law aspect. One thing i disagree with is the judge concluded that there was judicial review under the conclusion in the prosecutorial discretion and i disagree with that conclusion. Also, the District Court judge concluded that the Obama Administration used a policy document and i disagree with his reasoning there as well. Just something to think about Going Forward and im happy to take any questions if you want to know more about why i disagree with the conclusions, one more general point i want to make in terms of thinking about the future of Immigration Law is that me via litigation sort of solidifies in my mind that Immigration Lawyers and Administrative Lawyers can no longer operate as the two separate islands. The District Court judges opinions reflect the misunderstandings both in the Administrative Law and Immigration Law. And its up to the Immigration Lawyers to be fluent in the administrative principal so that we can help bridge this gap to bring them back to the mainstream of the Administrative Law. Thank you. People do a few questions up here and then time permitting at the end weve opened up for the floor. The first question coming and this is for you, jill, and other speakers. Tell us about the timing. Right now there are decisions happening in the fifth circuit. Whered you see it going to the Supreme Court after this . The fifth circuit refused to grant the stay in the District Court preliminary injunction and so now the appeal of the parliamentary injunction is before the fifth circuit that its before the exact same panel the two that ruled. So. Its the same result in the fifth circuit so it will end up before the Supreme Court. A major part of the litigation and the lawsuit as you mentioned was brought by texas and a coalition of the states that are opposed to the policy. And the District Court found that they have a standing. And the basis for the the courts to find court to find the standing was that the grand of the deferred action and that bond status resulted in the individuals ability to apply for the texas drivers licenses and each time that you apply for the texas drivers license, there is a small cost to the state. So the narrative they brought the litigation is through the grant of the deferred action, texas is incurring the costs when the issue drivers licenses. We have seen how the government and interested parties have sought to broaden the economic discussion to say there might be cause for a drivers license. But theres also other economic benefits of being able to work, the more in taxes and benefits in other ways. Where do you see the sexual discussion going as it moves through the courts and the policy realm about the narrow and broad view of economic . Im not an expert at standing. But i can tell you. I would still tell you something about it. I can tell you what the fifth circuit says in the preliminary injunction they said that being pressured to change the state law is an addressable injury. They said the implementation would have a direct and applicable effect on the state drivers license regime. Its not speculative because the beneficiaries will almost definitely apply for the licenses and they didnt seem very impressed by the offsetting benefits argument. They did consider that an essay for the pulmonary injunction. So, you know, we will see what the fifth circuit says next and i would imagine the standing argument is going to be huge because this has repercussions way beyond Immigration Law. And if i may, just one other point to add real quick that is described in terms of the timeframe here if that case is going to be brought up in the second court and see certain that the Supreme Court term will start filling quite quickly as we all know it only handles about 70 cases may be cases in a given term that will have to be made fairly soon so there is a window of opportunity where the fifth circuit has to come down and the Supreme Court makes a decision whether it is going to grant the circuit and it may not do that. And if they missed the window for the term, the loan will be denied and they wouldnt be hurt until the next term coming around starting in the fall of next year so that is the thing to think about for the timing of this. And to get here later on in the term it will become not until the summer time but if it goes up to the Supreme Court something not until earlier more likely midway in the Supreme Court. With the additional time its been on hold the government has been working out scenarios that implement the program. All of you have experienced either within the government were working on the education side if the government does get a green light whether it is this fall or next year after the Supreme Court case, will they be better positioned today to be able to implement quickly. Everybodys looking at me and then of course the attorneys are looking at the. I think that probably is a better answer for you all to speculate on the readiness and such because we really have taken backwards order extremely seriously in terms of not really freezing everything in its tracks with respect to the dapa implementation. So i think that is a good thinking that is going on in the conversation that goes on needs to be one that is in the public realm. I think it certainly helps it has opened up in 2012 they did launch the program in the applications. They worked up some of the kinks unlike the prior debates in 2005 this isnt an unknown administrative challenge anymore. Why dont we stick with you while you are in the hot seat. The president and the secretary announced major changes to the enforcement priority system, and those have been ongoing for a number of months. Then we had this issue of the sanctuary cities that explode into the scene with a highprofile filling out in california. Aside from the emotional part of the murder that occurred in california, the enforcement policy changes i dont think ive gotten enough mainstream attention. If you could walk through what the changes are and how you see them impacting the policy changes down the road. The important place to begin is for any number of years and certainly in the last five years the guidelines to help to shape the nature of the Enforcement Actions that we undertake and many of the things the secretary did in november of 2014 word i think respond and identify those places in which the guidelines could not only be improved but could sharpen some of the broader policy points that really the administration wanted to emphasize. And so, you know, we have always made those that threaten the National Security and Public Safety were our chief among the three or 80. And none of that really has changed. But i think that what you saw in november of 2014 was an attempt to go in with greater precision in a tighter gauge to say heres how this plays itself out in the context of the daytoday decisionmaking. I cant emphasize enough that when i look at all of the november 2014 announcements and memos from the secretary that the notion of the decisionmaking is decision to be co debate co critical to what the dhs is about. The idea of discretion and enforcement priorities and the idea of the programs that are joined and other programs that were attempting to do and in innovation and modernization. Its often turned on the best decisionmaking and judgment possible. I often like to see say that the goal of the enforcement priority is exactly that. How do we enshrine the best standards of making good judgments about individual cases in the context of the massive undertaking. This is important in the context, so that is enough opining. Some of the basics are actually available in the outline to the critical thing to sort of know and understand arafat removed from a broad set of categories to the slightly more targeted one in which greater emphasis has been placed on the criminals and less