The research focuses on the intersection of technology, policy, business losses wider ramifications of key technological trends and development. He testified before congress more recently on drums, privacy and intellectual property and also the broad for the Global Agenda Council and cybersecurity. John is going to go through the basics of sections of a note to and sort of like a onetoone introduction and for the rest of our program today. John, welcome good thank you for coming today. I realize theres probably some countrys top experts on seven of two of the room and perhaps people who know a little more. If youre one of the countrys top, you will learn nothing in the next 25, 30 minutes. The goal of this portion of the talk is to make sure we are all starting to think foundation. Im not going to argue in favor or against section 702. I am going to lay out the same place. My understanding is programmatically this one goes until 12 45 in the without much for you and will come back and go into the remainder of the program. Let me start at the highest level section 702 as part of title vii, transit, allows dna to authorize targeting communication in all three of these prongs, persons other than u. S. Person where reasonably believed outside of the united state to require foreign intelligence information. Those are the three key requirement which relate to section seven of two. In this presentation i will briefly give Historical Context to know sort of how did we get here. Talk specifically about the act of 2008 which teed up the discussion we had this year in congress and go through some of the highlights and key points of section 702. I downloaded this. In 1970 at legislation. This is the original pics enacted in 1978 and it was to authorize electronic surveillance for foreign intelligence purposes and it was directed at communications exclusively between or among foreign powers. That was in 1978. Another feature we see from the legislation does there have to be no substantial likelihood the surveillance will acquire the contents gus of the party. From the earliest days of fight that we see this attention towards not intercepting communications if possible. The other thing that is notable as easy creation of the Foreign Intelligence Court. Chief justice shall publicly designate seven mr. Court judges here today we have 11. That would increase to 11 under the patriot act of 2001. The Foreign Intelligence Surveillance Court was created under the 1978 fisa and in addition the same law also created the review of the Foreign Intelligence Court review, which had been was very rarely used but the appeal of anything from the fed that has been used in several key rulings. Said that framework even section 702 to exist, the framework dates from the original enactment of fisa. Unsurprisingly for legislation that was originally put on the boat in 1978, the years some of the amendment but at least i was able to find. I would give specific attention to some of these latter ones here because those latter amendment are the ones which created section 702 that we have today. So, a precursor to title vii, section 702 is the protect america act 2007. It was then that it in august of 2007 and this was specifically heres the first time we see language like what we have today, having dni and the attorney general authorize the acquisition of the information with persons reasonably believed to be outside the United States. This protect america act of 2007 had a son that builtin to it and it basically was automatically going to expire 180 days after enactment in august 2007 so it then expired at some that in february 2008. From february 2008 onwards there was discussion in congress about what to do and finally a couple months later in july 2008 we had the passage in two of the fisa amendment that is 2008, which is the act that created the title vii that we have today. This was the first time we have that in the form essentially the way we have it today. This is the legislation creating title vii. Youll notice here it has a son said. He was originally created it sunset on december 31, 2012. A little over four years after the original enactment. Said the day before it was going to expire on december 30, 2012 is the reauthorization. It would be nice to think in 2017 this will get resolved before december 30, 2017. If history is any guide it might come down to the wire. In 2012 at the very end, the day before the original 1007 was extended in particularly this language here striking december 31, 2012, inserting december 31, 2017 and thats where we are today. This is the love we have on the books today and the reason we have so much press these days is the issue is extending this either with or without modification is sent and discussed quite a bit. That is kind of a level setting. Here we are. People sometime used the term title vii so i want to put it in context. Isaiah as it exists transfixed as it exists today has a number of titles. Im not going to read them all, the worst section seven of two lives. Title for his registers, title v is Business Records. Section 215 of the patriot act. That is not section 702. We are talking about title vii. Section 702 is a portion of title vii. We push into title vii here within transfixed, title vii. We are here to talk about section 702. Notably, these are rather than u. S. Person. Section seven of two is specifically designed in relation to the communications of people who are not u. S. Person in the other section of title vii which actually address the u. S. Persons. It is specifically not u. S. Persons. The Historical Context in the present context aware section seven 026 within title vii and more broadly within transfixed. First of all, u. S. Persons im not going to read the whole definition, but when we talk about u. S. Person of course have been defended the United States. We also be lawful for a permanent refuge. This is actually a definition of title i, but this is referred to in title vii of the definition of u. S. Lets take a look at what it allows. Section allows the authorization of correcting communications of persons reasonably believe believe to be outside the United States. It doesnt mean they have every single case are, that they need to be reasonably believed to be outside the u. S. The goal is to acquire foreign intelligence information. Thats it. The authorization to do that is basically the attorney general and dni jointly are able to get this authorization that they can do so under two conditions. One is upon the issue at them in order pursuant to the Foreign Intelligence Surveillance Court is sprung one. Alternatively or in addition there is an exigent circumstance problem which allows dni of the attorney general to authorize prior to the Foreign Intelligence Surveillance Court, back within seven days and filed the appropriate paperwork with the Foreign Intelligence Surveillance Court. Said that is the kind of key authorization language you happen to statute. Take a detour here talking about section 702. I want to talk about section 704. The reason i want to do that because a lot of the discussion about 702, you hear people talk about the lack of probable cause and to provide the context they are. Section seven of two relates to nonus persons. Section 704 by contrast relates to acquisition targeting u. S. Persons outside the united state and notably the statutory language from section 704, the probable cause prong and not. People often contrast the probable cause requirement that must be satisfied for section 704 with the absent of such requirement for collection on your section 702 indicated section 704 there is a definition which identifies key features that were probable cause is. That language is not infection 702. So well talk about what is foreign intelligence information there is a definition of that is certainly true crime definition and kind of subsumes the first cannot talk about both those. First of all, this is one of two sides on this. Information, sort of what you would expect. Addressing an actual or potential attack. Sabotaging International Terrorism or clandestine in duties by a foreign power. Thats foreign intelligence information. An additional portion of the definition is broader. This right here is information with respect to a foreign power that relates to for National Defense or the United States or the conduct of the Foreign Affairs of the United States. And think it is reasonable that everything in this slide, attacks and International Terrorism could argue are subsumed by these. This to me is the thing that defines the scope of days. And so, one of the things that people discuss is what is the scope of foreign intelligence information and how probably should that be interpreted question arc that is the statutory language they are. I want to go to reach one of these because it is important to remind myself what you cant do under section 702. First of all, youre not allowed to target any and come the u. S. Person or not if you know that person is in fact the United States. You also can target a person outside the u. S. That the purpose is to target somebody, to get information outside the u. S. Lets suppose i am communicating. Im in the United States communicating with somebody outside the u. S. That if the government to get my communication, they could use section 702 to do an end run around requirements. Hey lets go acquire what we are talking to because if we do that, we look at john communication as well. Explicitly prohibited under item two. Section 702 by its definition, you are not allowed to go after u. S. Persons. That in no way relieves the applications for u. S. Person. Cspan needs you to speak for the podium. Okay, sorry. Cspan needs me to speak from the podium. Member for cover you are not allowed to require information so even if you are nonus person communicating with each other, section seven of two can be used for that. Finally and obviously incredibly important to you, everything has to be done in a manner consistent with the Fourth Amendment. Those are what you cant do under section 702. What happens is the attorney general and the dni basically provide to the Foreign Intelligence Surveillance Court a certification explaining say that all the requirements of why they want it order to target for acquisition. There is an exception to the thing before. The exigent circumstances and if that is invoked, no later than seven days after that they have to provide the paperwork for the quarter. These two columns on how you can proceed on this. Let me move over so i can see this better. One of the things he talked about a lot is targeting and minimization. Targeting refers to making sure the persons who were targeted to satisfy the requirement for section 702. For example, that they are located outside of the United States and suggested to judicial review by the Foreign Intelligence Surveillance Court. At the targeting besiegers that reject them or accept that. Another phrase you see a lot is minimization. Minimization is again something that can develop by each relevant unit at the Intelligent Community and it also is subject to review by the Foreign Intelligence Surveillance Court. What is interesting is the law doesnt say exactly what the minimization or sutures are. If thats what they must do, what they must satisfy. The details are not laid out here, but what it must do to find here is basically it aims to protect, for example dissemination of not public acquisition and retention in dissemination of nonpublic publicly available. A bold faith is number two. Begin identifying u. S. Person. For also has protections against u. S. Persons. Interestingly, paragraph 3 is evident that a crime. This is the only one that doesnt explicitly have the u. S. Person in it. These are the minimization procedures. So fisk looks at all of this stuff. It will look targeting of the certification by attorney general dni and the minimization seizures and if they pass muster, they can issue an order pursuant to which dni and attorney general ken authorize the collection. This is, if the court finds the certification of all the required element and minimization that the Fourth Amendment to satisfy, the court issues the order approving the acquisition. Thats mechanically how that works. Then what happened is you can compile an electronic communication to provide the government to accomplish the acquisitions. The government would gauge with one of the regular companies that provide services that are the subject of potential acquisition of the government will rehab nurse accompany for having to go. And is also a liability shield as well. A company that receives an order or direct to to perform acquisition and he sued by somebody claiming that their information was acquired without their consent because theres a liability shield associated with that. In terms of oversight, this kind of a host of mechanisms that kind of range from mechanisms in turtle to an element to the Intelligent Community out to congressional committees and beyond. Ahead of each element conducts a review each year. The Inspector General of each element of the Intelligence Community are compliant. Of the these pricier the attorney general assess compliance with respect to targeted minimization or seizures. Pricier the attorney general forces the house and Senate Intelligence and judiciary committee. Senate, house, intelligent and judiciary. One sierra to happen a couple weeks ago, dni publishes a report, basically a transparency report that identifies information included new yorkers come as terms, queries and so on. They do this every year and like i mentioned, a month or so ago they published a report for calendar year 2015. These are examples of the oversight mechanisms that are built into the law. Another oversight or disclosure is the ruling family got good and then published by the director of National Intelligence. Tabler. Com. Maybe if you may have seen this. Ive seen on the record where you can go in download ruling as well as other documents that dni has chosen to publish in relation to section 702. In addition, the companies that received the direct are allowed to do reporting in a complicated set of formulas for exactly what they are and are not allowed to report on how they round the numbers, how precisely they found the numbers and what they report. The provision of the law enabled those companies to report that direction a number of directives amounted to some numbers. So there is kind of like i said a layered set of oversight. So thats the kind of statutory framework and we briefly talked about the operational thing that inevitably happen and sometimes lead to discussion about section 702. Just as the fundamental key point as ive mentioned prohibits targeting u. S. Persons. Nonetheless, its statistically inevitable if you are acting many, many acquisition. If the number gets large enough, even though there was no expressive type to acquire the communications of the u. S. Person specifically on trade statistically that will have been and is sometimes used to identify accidental collections. You will see that term discussed in relation to section 702. Another term you might see if ct which stands for multiple communication transaction or sometimes both the Communication Trend action. Done they connect internet communication from downstream and upstream. Under downstream collection, they required medications to or from a section 702 selector such as an email address. In other words a particular person email address might be the subject of a directive or a selector to get that communication. Also, according to the pc lod, the privacy and Civil Liberties oversight, they wrote in collection, the government, the fbi on behalf of the nsa sends it to a isp that has been served a directive. Then they are compelled to give the communications sent to or from the government. They went on to say it did not include acquisition of telephone calls. Contrast that with upstream collection, from that same privacy report, this is different because the acquisition occurs not with the assistance of the United States isp but those in 72 directive of providers that control the backbone over which medications transit. The backbone are these trunk lines that carry massive amounts of aggregate information from all sorts of Medication Services and thats the portion of the network which is addressed with upstream collection. From the same report, upstream collection includes telephone calls and internet medications. Those were two types of things. And then a statistic, i dont know how current it is anymore but this is the only one im aware thats publicly available, there was an october 11 order and in that order, the judge wrote that there upstream collection constitutes only 9 of the total Internet Communications beinacquired. At least, as of the time when the data that this judge was reviewing wrote this order, then the overwhelming majority of the internet medications were not on the upstream side. Another thing you will see and probably have seen often is the about verses two from distinction. It can include about and also to from communications. Could be one that includes the targeted email address even though the email is between two persons who are not themselves targets. So if i am not a target and im sending an email to someone who is also not a target and in the email i say please reach out to xyz, his or her email address and it turns out that person is a target, that would be an about communication but not a two from communication. As many of you are very aware, back in april, five weeks or so ago, nsa issued a pair of press releases saying they were going to stop and if you look at the bottom paragraph it says they will no longer collect Internet Communications that merely mention a foreign intelligence target. This is referred to in the icy as about communications in section 702 upstream surveillance. They will limit such collection to internet medications that are sent directly too or from a foreign target. This is an essay specifically publishing that they are no longer going to be collecting these communications. The other press release that was issued the same day, they certaistop certain upstream activity in the second page says after considerable evaluation and technology they have decided activities will no longer include any upstream communication activity that are about a foreign activity. It should be limited to two or one. In addition they will delete the vast majority thats required of upstream communications as soon as practicable. Recent changes from nsa on that. Also, a couple examples from the transparency report, i mentioned one of the oversight mechanisms is that dni publishes this transparency report, in this case in april 2017 they publish the port for calendar year. Zero orders issued, but there is still a number of acquisitions that occurred. Ill talk about that in a minute. Then we can talk about masking and unmasking. If you have a u. S. Person, that persons identity will typically be massed in disseminated information that will go to consumer information. Unmasking refers to the term used to basically say lets remove that anonymity and say who was that person whose identity was originally massed. This is again from the transparency report so the reports containing this and of those containing those identities were originally massed in 200 reports. This is the number where the identity was originally masked and then this row says of the report containing that this is the number of reports with identity originally revealed. If you look at these numbers that are actually quite add up. The reason is there could be more than one u. S. Person in a particular report. The final row of the table says of those reports this is the number of identities they later released in response to a specific request. Someone received the report and said this is a massed identity and would like to unmask the identity. This was just recently published. Then a couple weeks ago there was a slate of documents published by the director of National Intelligence and there was a new order april 26, 2017 from the foreign Intelligence Surveillance, and among other things, that order approved targeting procedures and those documents are on the internet. I also thought it was worth highlighting a couple quick, this is from the order, you mentioned again on apri april 25, 2017 fisk issued an order and in the order they also reflected this understanding that the government was eliminating the about collections which will limit acquisitions of mcts and reduce the information of nonpertinent information pursuant to section 702 and they may continue to acquire information only to assure that the party is at target, the active user. Its an attempt to make sure through these they dont accidentally sweep in information regarding people who are targets. The other thing i thought was worth highlighting was a footnote but i thought it was interesting, the minimization procedures generally take an all or nothing approach but where any. The idea is if you have an mct and youve got Ten Communications from a target but if theres one thats not than the entirety is subject. [inaudible] they also say the court agreed that the removal of the types of the greatest level of statutory concern. They viewed the elimination of that as a beneficial thing. I will close with one or two minutes of identifying some legal cases, unsurprisingly there have been various legal challenges over the years so this one went to the Supreme Court and the court ruled that Amnesty International did not have standing in this case. A somewhat similar case with the Media Foundation at the nsa which was very active but was remanded a week or two back to the Federal District court and there was an attempt, the government argued we dont have standing but the Fourth Circuit said at least so far they do have standing. The aclu and the nsa which was filed in new york late last yea year. I think it was filed in late 2008. That litigation has been ongoing for almost nine years. Another important source of Court Decisions is dni itself and the webpage i mentioned where they publish these redacted Court Decisions and the final page all mention is a set of rulings that if you look at the dates, but they are relevant because theyre often cited so the top one is called the chief decision and theres three more here. These generally deal with the extent of the exception to the warrant requirement when you are dealing with foreign intelligence information. Again, we could spend half an hour on each one of these rulings but then we would push off the rest of the program. This is intended to be a factual background but i hope to see some usefulness in putting us all on the same page. Im getting signs that i should wrap this up and let us get lunch. Thanks for your time and attention. When you referenced the Court Opinion or memo an order on april 26, i think the judge mentioned some third parties that were unauthorized, having some of that information from the fbi as well as some of the congressional members of Congress Asking how Many Americans are accidentally included in that number wasnt given. Will this bear any weight with the discussion Going Forward. The court order. The memo an order that was released april 26. Do you think it will influence congress with their decision with 702 Going Forward . I think its important because it balances what they said. There were some concerns that had been raised. The reason this order was issued in late april was the result of the process that started much earlier when they submitted some of these targeting procedures back in the fall of last year, there were some inadequacies that the court identified. The court was then satisfied that they had been addressed and finally approved them a number of months later. Its relevant because its so recent. Do we have any indication of what is in the annual applications other than technical rubrics . Do we have any sense if theres a geographical limitation that we are looking at particular areas of the world, or is it simply a matter of protocols that we will have technically and we may use these anywhere in the world if these are the protocols we have and we can use them anywhere in the world. Its an interesting question but im not aware of any publication about geographics specifically. Certainly the statute doesnt require anything like that. We have time for one more . Can you refresh us or remind us, the various renewals and new legislation covering this. How was the vote mix in terms of passage. On the december 30, 2012, i dont remember the numbers. I have an idea but im afraid it will be wrong so i dont know. I dont recall. Announcements. Everyone, thank you. Just a few quick announcements. We will adjourn briefly and grab a quick lunch. There are two lunch tables. We will expedite and get through that fairly quickly. The next thing is we will start at 115 promptly for National Security view on reviewing section 702. Finally i know theres a lot of people over here and theres open seats. Please feel free to come in and squish in so you conceivable audience. [inaudible conversations] this conference on the future of the pfizer law taking about a half hour break , due back at 115 is for a panel on the National Security view of renewing isaiah. James comey will testify before the Intelligence Committee. We have a date and time. Its thursday june 8 and we will have live coverage on cspan networks for the hearing is scheduled to begin at 10 00 a. M. Eastern next thursday in open session. Also, this from the hill today, is really Prime Minister benjamin and yahoo said israel is disappointed by President Trumps decision to keep the u. S. Embassy in tel aviv rather than moving it to jerusalem. Israels consistent position is that the American Embassy like the embassy of all countries should be in jerusalem, our eternal capital. You can read more about that at the hill. Com. This conference and a break for the next half hour. Until then, some of this mornings washington journal on the russia investigation and Trump Administration. Than host our next guest is William Pomerantz. He is the director of the Cannon Institute and an expert on russia. Thanks for joining us. A lot of discussion about communications between russia and the United States over the election. Could you give us your take of what you are hearing and whatis you make sense of who did what and when. Guest one hears a lot and it comes from a variety of sources. Re we have to try to understand where the sources are, the Anonymous Sources in the public sources and try to put it into a pattern to see what it means. I think, as the events have moved on, i think two issues come to the top and theres aa potential third but ill focus on the first two. One is the question of Michael Flynn who is clearly under investigation, who clearly has a legal problem, and i think this question for Michael Flynn in this investigation is does it end with flynn or does he in fact have more information that implicates either the president or the campaign. The second issue that hasnt gone away is trumps finances. Where did you get all this money from during the 2000s to make these investments. Its quite clear banks were not loaning to him, there are various statements about his son about money coming from the former soviet union, not just from russia but other places within the soviet union and real questions about President Trump and his company and whether or notot they did Due Diligence to understand where its coming from. The other issue is the question of mr. Kushner. As far as mr. Kushner is concerned, theres questions about not only the relationship he had with the Russian Ambassador and russian banker, how theyre connected, could you explain who these players are in relation to theo ambassador and the baker. Ambassador is simply the person who represents the Russian Federation in the United States. Its traditional for them to have all sorts of contacts. In in many ways, a meeting with Jared Kushner or other people is not that surprising. Admittedly they should disclose it when they apply for federal government position. Those types of meetings are the meetings that take place all the time. The meeting with the head of the Russian Economic Development bank is a little bit puzzling, only because they have no idea what wass discussed in the meeting. The Russian Economic Development bank is a state bank, but it mainly supports russian exports and Major Development projects inside the country that other investors wont support. The question is what was he n talking to mr. Kushner about. Im not so sure mr. Kushner wants to invest in stadiums in russia and other big projects. Its just unclear why the meeting was arranged and what they talked about. T. Now we have the backdrop of the creation of an alternativena channel of communication that would actually use russian facility. Before we go a little bit further i let my viewers call in. If you want to ask questions about what were talking about in terms of the Russian Investigation and the Trump Administration, our lines are open. You can also tweet thoughts at cspanwj William Pomerantz spread this idea of a back channel. What do you think about it, the desire to establish one. Again, its not unheard of to have back channels, and so they have existed in the past and at times they have produced important results and have served as alternative means of medication. This back channel is, questionable because of the desire to use, allegedly to use russian communication facilities and it occurs in all the backdrops of the problems they were having with services and was it an attempt to bypass the National Security agency, u. S. Wcici intelligence and many other that would like to know what is being discussed using thesedr back channels. Those two elements, the use of russian facilities and bypassing has lots of questions. K about other some that would want to establish it at a russian facility. Im not aware of any other attempts to use russian facilities in order to create such a back channel. So as far as the other, you talked about Michael Flynn his being subpoenaed to appear and testify, there is also another man mentioned, michael , thats mr. Trumps personal attorney. Right. Again, we are not exactly sure a what he is being called about, he has appeared in various stages of this investigation, someone with strongn. Connections to the region, at one point he proposed a peace treaty dealing with the Eastern Ukraine crisis that he put forward, i think we really have to wait and see what it is that he is being asked about, whether he was a person who allegedly may have had communications with russians or other people during the campaign is unclear. He is his personal lawyer, but hes also a businessman and a person with significant context in the region. Host he has studied and researched extensively on russia and related activitiesn and also at the Wilson Center and he serves a third Deputy Director. Our first call comes from david. David is in los angeles. David, you are up first, good morning. Whats really fascinating about this russia issue is how propaganda that is primarily used by autocrats and regimes have completely coopted and corrupted the american political sphere, and you have it whether you have the democrat or republican issue being manipulated for the purposes of deceit, and what we do with this issue is people come on and they are domicile and although this is something as normal were living in times in that which is absurd has been normalized. Ing instead of them getting out what has occurred is we are dealing with the five divisions that distract us. Host i think one of the interesting aspects is to the extent that russia was able to use regular newschannel to get out a specific channel. Ot a who it was the hacking of the democratic headquarters, we got a whole different alternative narrative that has been able to enter the rain of u. S. News mainstream, and this is the problem of the 21st century. O we no longer have three channels into newspapers that sift through the news and put through the main news stories of the day. It comes from all different sources. Fak its hard to verify the various ways by which these stories can come to the top of the agenda, and it creates a very different environment. This gets to the wholeat question of fake news and the russians ability to use these resources to push forward its international agenda. S its a new use of soft power and the russians have decidedhe this is what they want to focus on. Caller thank you for taking my call. What i want to know is why the president would even suggest two lifting sanctions on the two phones they told the russians to get out of. Why would he even consider giving them back . Guest that refers to a new story broke by the Washington Post this morning that the president is considering returning the two compounds that were closed at the end of the Obama Administration, and where president obama accused them of being engaged in intelligence gathering activities why he wants to give them back is unclear. The caller raises an important question and that is if President Trump is even considering this, what is he asking in return . Happy t if indeed its just a unilateral action, the russians will be happy to pocket a concession or in this case the return of the compound and not offerer anything else in return. S back i think this gets back to the negotiating strategy of President Trump and it gets back to the larger question of what he wanted to do with the u. S. Fact sanctions imposed in the aftermath of ukraine. Theres lots of talk that Michael Flynn and President Trump were interested in lifting those but theres no real discussion as to what was going to be the deal. Whether there was going to be a negotiation or weather was simply going to be a unilateral lifting. Deal that is an important part of the crisis because trump castio himself as a dealmaker, but when it comes to russia and the sanctions it seems like he is willing to lift sanctions. Republican line, go ahead, youre on. Hello, i have a question when we were in the midst of the campaign, i had heard a number of stories about how russia had given the nonprofit of the clintons tens of thousands, if not hundreds of thousands of dollars in donations. Why all of a sudden are we hearing about that, and how come all of the sudden if russia was going to lean toward anyone it wouldve lean toward hillary because they wouldve expected something in return for the tens of thousands of dollars they gave us donation. T there are a few people that Vladimir Putin dislikes more than Hillary Clinton. There is no doubt he believes she was responsible for the events in your kind, that she was responsible for the introduction of sanctions, and that if there is one thing i think there is consensus on, its that if russia is behind the wikileaks and the release of information, it was because he wanted to damage Hillary Clinton. I dont think whatever small donations, and im not aware of those donations that were made to the clintonhaving a foundations, i dont think he was interested in thinking he was going to be able to have a Good Relationship with Hillary Clinton, and that is the rationale behind so much of their actions during the campaign. If Hillary Clinton had one, potentially this could havees been a focus of attention. She did not win, President Trump is in office and actually i think the focus of attention turns to him and his business activity. You talked about that, can y you paint a picture of what you might look for as far as relating his Business Activities in relation with russia. The question is, how much money did donald trump get to maintain and run his businesses from not just russia but from ukraine and azerbaijan and the former soviet union. As i mentioned before, trump had great difficulty attaining finances from Western Banks and therefore he had to look for alternative financing and allegedly that money came from the former soviet union. That wasnt a problem because under various u. S. Laws, President Trump was required to do Due Diligence to find out the source of that money. Based on what has been reported in the press so far, again we just have snippets of some of these transactions for what has been reported was that he wasnt very diligent in finding the sources of that money and knowing who he was doing business with. Host when you hear callsme by some to release his tax return, do you think its as simple as that . Guest i think we get a lot of information from the tax return. We get a better idea of some of his sources of income. Whether that is sufficient to fully inform everybody as to his sources of financing, we may require more information and not as well. Host independent line, frank, good morning. Caller good morning. I think our democracy has been put under tremendous amount of stress at this point, and i think its failing. Whatever happened to checks and balances in our governmentve when the congress has not taken any action against mr. Trump. I think he has done so many things up to this point, including not releasing his taxes and not divesting himself and he continues to profit while hes a sitting president and congress is taking no action. With regard to the back channel. I thought back channels were something reserved for sitting in ministrations. Mr. Kushner was not appointedru at the time. How is it possible he would create a back channel with russia and hide it from our government. I think thats problematic. Thank you. I think the back channel the assumption was that it would exist once the Trump Administration began. It wasnt simply a back channel prior to the assumption of donald trump to power but it was a back channel that would be used as soon as he got the power. On the question of the u. S. Democracy, this is a unique time in american politics. Tates, one could see it is a challenge of our system of government and checks and balances, but in light of how the story is playing in the United States, the amount of coverage it gets, and in light of even the difficulty of impacting his domestic agenda, on a certain level the checks and balances are working. I can assure you in the post soviet stage which i study m often, they do not have similar checks and balances and the ability to hold government officials accountable is much less than in the United States. Host from hunter, eastern connecticut, republican line, good morning. Caller thank you so much for having this important conversation. A comment is that in order to understand where we are now, i think its really important toto take a look at history, specifically recent history when hillary was secretary of state and barack obama was our president. If we look at what happened, with respect to those two global actors and Vladimir Putin and russia with the sanctions, with crimea, with nato, we have to look at nato. Nato is a huge piece of this puzzle. When we look at militarytened activity, Vladimir Putin feels threatened and he is responding in a way of a threatened Global Nuclear arms power. Thats how hes responding in my opinion. He mobilized everything hef possibly could in order to protect himself and retaliate against the threat coming from hillary and obama and nato. , and so, i have a theory that this war between Vladimir Putin and hillary, im talking total cyber, psychologicalon warfare, i know my time is limited, war between britain and hillary results in donald trump. There is reason to go back and review the obama foreignpolicy and to ask questions as to what the alternative alternatives were, but in reality, president obama made a Huge Investment for reset in which there were significantly improved relations between the United States and russia and he did not have to do that during his first term, but he made that a priority. The room were mistakes andnd flaws with the policy, butut nonetheless he invested in having a better relation with the Russian Federation. After the events of crimea, after the events of ukraine where russia had assisted the rebels in taking the eastern part of ukraine, and therefore theres an ongoing civil war in ukraine, it could not be business as usual, and again, i think he did have try to have better relations. I think it was based on his perceived threats, but not on any major threats that the United States had directed toward the federation. No in the aftermath of all of that we have seen an escalation of the crisis and a significant deterioration and we have not even yet hit rockt m hit rock bottom bottom. This was from cnn but was picked up by the Business Insider reporting on russia having derogatory information about mr. Trumps financial information. You take that at face value or is this something the russian government is putting out to put out. I think one should assumeons that, especially mr. Trumps position, that he was a person of interest when he visited russia. I think he should have assumed that all his commute occasions were being monitored, the all his actions were being monitored, and therefore, if they believe, if they put out something that they have information on donald trump, i have every expectation that it might be true. Russian politics engages in the practice of compromising information all the time. I think since mr. Trump has visited the country and dealt with the country, there is every possibility that they have been gathering information on him all the time. Kevin, your next. Caller thanks for having this discussion. I hear the word hankback cfor hg this discussion. I hear the word back channel quite a bit. Im wondering whether thats appropriate. F my experience, my limited experience seeing back channels being discussed throughout history involving a thirdparty when we dont have a relationship with russia, we have diplomatic relations, i wonder, setting up it seems to be a covert communication channel. I would wonder what the purpose of making that covert is when we have diplomatic relations with the country. If i can give you my take, this shows some very deep distrust of american institutions that have been built over hundreds of years and the Intelligence Community, the state department, it seems to me that donald trump, on Thee Campaign trail at one point seemed like he was creating this distrust to get elected. I think this shows those are truly deepseated issues that he has. Guest i think you raise some very important points, i think on a broader level it also points to Donald Trumps inexperience, that he didnt have experience working with the state department. He was used to oneonone personal negotiations and business deals. Throw that into his stated and admitted admitted distrust and that begins to explain why he thought may be a back channel was necessary. Again, i think we still need to know more about what was the intention, and the issue would be whether it is plausible that the only reason was to discuss syria which is what has been put out so far, or whether there were other reasons why President Trump and mr. Kushner wanted this back channel created. Good morning. Its beyond me how they can talk about trump to the point of what hes doing, which is nothing you know, he asked barack obama about his birth certificate. The barack obama show it to him . Now he wont show you all his taxes, but hes supposed to be so rich and i dont know where you been. If you listen, mitt romney told you all from day one this is a con man. What part of that do not understand. Consistency has not been a basic part of his political personality. The caller raises legitimate points about his going after rock obamas birth certificate and demeaning transparency ther there, but not being transparent when it comes to his own issues. Caller i would like to ask your guest one question. Out of everything that ive been watching on the news, the only people ive ever seen take money from russia during this whole time has been Hillary Clinton and bill clinton. Yall need to tell the whole story instead of just part of the story. I think we are all learning more about the story almost every day. I dont think we know the complete story yet and that is what well find out in the weeks and months to come. Host what is the complete story. What will conclude all this investigation. Guest i think the information i have to come out is what sort of contacts did donald trump have with russia, and did that have any influence in terms of his Overall Campaign and his Campaign Promises about having better relations with the Russian Federation. That was always a very puzzling part of the campaign, it can be explained rationally , this may be something he deeply believed in, other president s have been elected and had their own recess with russia, but we need to understand what was his relationship with russia in all of the. Host thank you for your tim time. This conference is expected to begin shortly. President trump, a quick reminder that the president is scheduled to make an announcement about the paris accord coming up at 3 00 p. M. This afternoon. News reports suggest yesterday he will announce that the u. S. Is pulling out but the white house hasnt confirmed that. The rose garden statement will happen this afternoon at 3 00 p. M. Eastern live on cspan with your phone calls and social media comments after words. Ill take the opportunity of this wall to begin the session. Im not going to spend a lot of time on introductions, but very briefly, i have been with us from brookings, and this is a real opportunity because my co panelist, interviewee, im not sure what to call him, he has a remarkable diversity of experience with 702. I actually met matt way back when he was working on guantanamo issues once of upon a time, but subsequent to that he became general counsel at nsa and went from there to run the National Counterterrorism center which is fundamentally analytical but draws on a lot of sources of intelligence including, as i think youll hear of 702 material. So, let me start by just asking you, on a scale of one to ten, how important is 7022 u. S. Counterterrorism missions and other National Security interests, and what other interests. If i can channel the movie spinal tap, i will say 11, for those of you who have seen the movie. On a scale of one to ten, in all seriousness, its very important. I go back to introductions for second. Its great to be here with you and weve had a lot of conversations about these issues over the years although as been mentioned, we didnt really caucus before. Im a little nervous about what they will throw at me. Well just have a conversation and it will be fine, dont worry about it. I did move around a bit in government and i had diverse experiences with 702. The truth is, i just kept moving every couple years. Anytime there was an issue or problem i would just let somebody after me deal with it or other things or other difficult issues that have come up. There are issues and we will talk about those. Back to your question, at the Counterterrorism Center i was the recipient of 702 information as we called it and having worked on it from the perspective perspective of 2008 and getting the authority, it was oddly gratifying to sit in a room of analysts and they would say, we know from 702 information, x, y, and z. I thought its not very often that analysts would actually talk about the authority by which we knew a particular fact, but there was something about 702 that was special. It was called out but it was also often the case because of special handling around it that would be part of the intelligence information that her analyst were getting, or maybe they knew i worked on it and they were sucking up to me. That was also possible. The reality was, the statistics that are out there from a major ca contributor to the daily brief, i dont know if theres a more important source of information than the authority providing a source of information and 702. Its hard to overstate. Okay, so lets break it down now, the reason the program is so important, presumably is that it solves a problem that otherwise doesnt have a solution, and so we always talk about seven or two as though its something that exists out there. Its actually only existed in current form since 2008, temporarily it existed in 2007, so whats the problem that 702 is the solution too . Its a couple problems that it solves, it is important to understand 702, to do a little bit of historical discussion in the prior presentation talked a little bit about this as well, but the basic problem has to do with the nature of pfizer generally, the statute from that teen 78 and the fact that like in a lot of context, the law that was passed in 1978 didnt keep up with changes in technology so the way pfizer works is the scope of what you can do is defined by electronic surveillance. Thats what they can authorize in terms of electronic surveillance and with that definition, it was adopted in 1978 where most of Long Distance communications were carried by radiocommunication so theres lots of technologybased language to define the scope. That changed fundamentally in the 90s and 2000s so that most of those medications were carried over fiberoptic cable or a wire as the definition use uses, the term wire, and that meant instead of collecting information with output where we were targeting nonus persons who were not in the United States, who typically dont have for the member rights, instead of doing that without probable cause we were having to go to the court to get probable cause. That was on an individual basis. Change in technology met people who didnt have Fourth Amendment rights were getting Fourth Amendment writes it was an anonymous resource drain. There were thousands of hours devoted to getting probable cause on it nonus person in yemen who is generally communicating with other nonus people in yemen but we were developing packages to peru that they were form power. That was a resource drain but it also didnt make much sense because they didnt have for the member rights and we thought it made sense to have a more agile means of obtaining their medications when we needed to use a usbased service provider. We needed a mechanism to compel their compliance and protect them legally when they provided that information to government. Thats a long answer but thats the nature of the problem. Okay so i want to shorten it. I want to sort of isolate what it is, because we will get to the problem in a minute of what happens if you turn off 702. I want to focus on what problem you are solving with it that you then stop solving if you say on december 31 it ceases to be law or january 31. As i understand what you said, it is that large numbers of lawful intelligence targets overseas, communicating with other terrorists and non terrorists lawful surveillance targets overseas and these medications are routing to the United States but they would suddenly have to go through conventional and thus be subject to wildly increased standards of a sort that weve never decided as a society that we want to give to aliens beyond the shores of the United States. Is that fair . Thats fair. What kind of numbers are we talking about . So the specific numbers are classified. Lets use big round, i think the government says theres a few thousand conventional once. Year. I forget the exact number in the United States. Ballpark, where is the decimal point were talking about how many overseas targets might suddenly become subject to pfizer if you turned off 702 . So to assume you are able to demonstrate probable cause. Lets assume you could do it. Lets assume there are x number of people overseas that we now surveilled under 702 without an individual probable cause showing and those are the universe of people you actually want to target for surveillance and now you have to do it under fisa which were doing that 2000 a year or so. What are we talking about . The number is around 2000. That is specifically reported by the government. I dont know if that number, the broader number is public. I think theres somewhere in the hundred thousand. So its orders of magnitude. So factor of 50 or greater. In your rough guess, how many of those people could you get a conventional fisa against. Theres two dimensions to that problem. Could you establish probable cause and could you amass the resources to go through those steps. Resource question aside, just a gut feel about the numbers that would meet the standard would certainly be under 50 , and maybe under 20 . Okay so let me just summarize this. Hugely Important Program, 11 on a scale of one to ten, major contributor to the president s daily brief, and if you turn it off you have to scale by a factor of 50 the number of people you are subjecting to conventional fisa, and for more than half of them you couldnt do it, and for the half that you could do, you are dealing with and a intense resource allocation. Is that a fair summary. Thats right. May be insurmountable okay, so before we turn to the politics of this, im just trying to establish the scale of the problem, that the political system is about to confront. What did we do before 2007 . This is a new solution to this problem. The problem actually predates 702. What were we doing and how are we handling it before we had the solution that we have and why couldnt we just go back to that . You go back, when i talked about before, you can go back 20 years and the problem was on the scale because of the Technology Issue i described. To this person a and box one and this person be in yemen were not communicating through a server in the United States. Thats right, exactly. Thats still true for a lot of those same individuals. The fact is many of those communications do not pass to the United States or through a u. S. Isp. The problem didnt exist to the same degree if you go back 20 years or ten years. Then of course you have the terrorist surveillance program. 2001 through 2007 when the government announced in any electronic surveillance that have been conducted under what was revealed under the terrace reveal program was now being conducted under the fisa court. You had a regime based on article to authorities and a controversial legal interpretation. So if you go back that far, thats what you go back to, Legal Authority so, now if you were to turn off 702 and say okay you gotta go cover the same individuals under probable cause, we go back to the brute force efforts that were undertaken when i was there to try to cover as many as those individuals, simply with the title i fisa and then the same problem we just talked about in terms of resources and establishing probable cause. In the absence of 702 you basically have a robust and maybe unsustainable assertion to do it on the president s own authority or you do it person by person under conventional fisa. Correct. All right. Lets talk about politics. Politics of reauthorization. Its interesting, the prior presentation one of the questions i think at the end with what was the vote or in 2012, i was sitting sitting here and they googled it and it was i think this it was like 73 votes for reauthorization in 2012. Similar proportion in the house. At least by the time it was december 20 looming deadline of january 1, it was bipartisan support for reauthorization in 2012. And going back to 2012, i was at nctc at the time. We were very closely following this issue, and this was at a time where there was, the tea party sort of movement had begun in congress. We had started to see a change from when i worked on the legislation in 2008 where you had a sort of libertarian streak in the Republican Party that was kind of joined with sort of critics on the left in privacy, groups on the left to question some of this, right . So that had started to happen in 2012. Obviously, those dynamics are still play today. But i do think there does feel like theres something this change from 2012 thats going to make this harder. Okay. So before we turn to the unique particularities of the Current Situation of which i can think of that, at least three, lets just talk about the general constellation of forces here. Youve traditionally had a core center, right of center, and left of Center Support for visa authorities, and you had a dissenting left Civil Liberties community, and you had a more marginal libertarian right objection. My sense, generally speaking, is that even before this year, that dissent on the right has grown in strength. You know, im interested in your sense of when you think about the politics of, you know, who were the opponents of 702 . How much do you think of sort of conventional left opponents, the sort of aclu, and how much do you think of it as a sort of russian rebellion tea party thing . Let me answer the question by going back to 2008. If you think about the law as it was passed in, first protect america act and then 702 in 2008, that was passed at a time that you had a very unpopular president , republican president , president bush. Democrats controlling both houses of congress. And as a result, i think, the law that was passed represented a pretty thoughtful balance of the various viewpoints on how to protect the country and protect privacy and other basic challenge of building a statute that gave the Intelligence Community the agility, speed to collect vital intelligence while building in a number of safeguards involving the fisa court being the procedures, the minimization procedures, Fourth Amendment. The fisa court has authority over all those. The oversight mechanisms builtin. Built in. All things we learned about an hour ago were all part of this hardfought compromise where these groups, this is not like alonso shoved down the throat by one party over the other, given the nature of the executive branch in congress. To me tha thats important as yu think about the current state of play. And i guess one point to make i think in response is that itll think, my own sense is when to talk about the critics, i dont think there really is much real debate about the fundamentals of 702. Maybe im wrong here maybe im naive or hopeful, but the value of it and the sort of Core Principles of how it works, i dont think, i think theres general support for that. Theres obviously some critics of the law on some of, on some aspects of it but i think those aspects are on the fringes of how its use as opposed to the court of not requiring the government to get probable cause, establish public calls for nonu. S. Persons overseas to collect foreign intelligence. That seems to me to be probably pretty broad excepted. I agree with that with the following caveat, that a think you can accept that broad principle and then caveat the broad principle so often and so neurotically that you end up eroding the underlying principle itself, and creating effectively a lot of the workload burden that the statute was designed to eliminate. But okay, if we except that there is a core reservoir of support here that is strong, whats changed . You just said you think this year is going to be harder than 2012. I share that, and also note that the aggregate legislative progress that weve seen toward reauthorization so far has been something close to zero. Right. And moreover, theres another intervening event that i think is disturbing, which is the protect america act 215 debate which different subject but also kind of flows out of the snowden revelation. And that bill was ferociously contested. The program was actually allowed to lapse for a while. You know, i dont think the legislative process associated with that was a harbinger of anything attractive with respect to whats likely to happen to 702. Im interested what you see as the current legislative politics that are different from the politics four or five years ago. Ill take a shot of that. Its not really, you are closer and better at knowing the politics i think that i am, ben in some ways. I read the papers and try to step on this bu but i wouldnt d myself out as an expert on the Political Landscape on this. My own sense is, theres some big things that changed since 2012. 2012 was harder than 2008 which in a way with sort of way was sort of odd with the libertarian sort of street in congress that had some critics on the right which we did nothing 2008. The support of the rent was kind of a given and going into 2008. So 2012 was harder. Then the big things are snowden, 2013. We are still, if i asked, im sure people will not raise hands, but how many people believe that nsa is tapping directly into the central servers of several u. S. Based internet providers. I suspect many people would say yes, thats true. Because that was the lead story in the Washington Post shortly after the snowden revelation. Turns out not to be true. Not true at all and really notably not true at the time that article was written. The post to this day has never run a correction about it. And they got a Pulitzer Prize for it. I find that to be pretty problematic. I knew what he read it, thats not true. In fact, we had a very open public congressional debate when we established the authority to be able to do this, and it wasnt nsa tapping drug into the central servers of google and yahoo . But it was on this life that it was snowden, a training slide apparently. So snowden, dont get me started on this obviously. So we got snowden. Thank you for pulling me back from the brink. So we have snowden. In some ways a lot of the i think has run its course is my sense. Look, you brought it the 215 debate. That was the most controversial aspect of what snowden revealed, and thats been largely addressed. I feel like much of that is sort of dissipating. But still it it still informs e current climate i think. But then you are not going to say President Trump so i will say President Trump. I was going to say it. You know, today, the tweet from the president , the real story is unmasking surveillance of u. S. Persons come something to that effect. Thats the real story. And that is something that we just havent seen before, that we have what in particular . So what is, right, such a number of different facets of the same thing but its a strong message coming out of the white house of distrust of Intelligence Community. Aunt that comes up, in particular comes out in comments about surveillance. You know, going back to general distrust around the russian story. That goes back to preinauguration, to the false statements about, from the president , that he was subject to surveillance by president obama, to comments by kevin nunes about potentially illegal unmasking. So this creates an atmosphere of distrust, what the Intelligence Community does, and you see, it seems to me people who know better i think on the right embracing those views to support the political position that the president has taken. Lets speeded thats the best i can say about that and theres up a lot of folks in your that probably know this issue and better than i do. Lets break that then. You raise to issues that are interrelated but i think discrete from one another. So one is a messaging from the president alleging illegal use of surveillance authorities at illegal unmasking of people. Traditionally we have relied on the executive branch not merely not to engage in illegal wiretapping with either however many spaces, however between wire and tapping. Not merely enough to engage in it but to be the explainer of the legality of the intelligence communities behavior. And i think it does create a very difficult environment when the president is saying things that we would regard as people like me anyway, would regard as wildly irresponsible if, say, the aclu said then, which by the way the aclu wouldnt. And so i dont really understand how the executive branch, under the circumstances in which it is accusing itself of unlawful behavior on a daytoday basis, goes to congress and asks for renewal of these authorities. I dont really understand how a reasonable member of congress, under the circumstances, whether they believe the president or not, if you believe the president that the Intelligence Community is doing these things, it seems kind of nuts to invest it with these authorities, right . If you dont believe the president , the presidency tweets and comments about these things, scenes, its hard to invest him with these authorities. And so im left with as a fervent supporter of these authorities, im left with a real perplexity as to how you react as a legislative body to the executive systematically accusing itself of misconduct. So thats a think a really good way to pose a dilemma. Because i agree with both of those. On the first, does Congress Really believe that the Intelligence Committee is doing the things the president is saying . I think the answer by and large is no. I think theres a parallel universe. And used to be clear, do you believe a word of it . No. I mean, no, not in the things i said. The illegal surveillance illegal surveillance, evil unmasking conspiracies in which, so, so you believe, just for the record, i believe, but i just want to clarify that you believe that the Intelligence Community is using its authority lawfully, and the president is misrepresenting the conduct of his own Intelligence Community. Yes. And you know, i say that not just as a casual observer but as a former general counsel at nsa and as an official at nctc. Now, which is to be careful, right, the nsa, fbi, doj make mistakes. And there are compliances and we know that that happens. Some of those are quite public, some are not known, or at least not as public a note in terms of the specific nature. Not to say the system is perfect, but the things the president is saying, you know, i believe are not true, in my unexplained are not true. The president is the only one thing. Another person who is saying the same thing is not the chairman of house Intelligence Committee. This strikes me as another very peculiar element of this discussion, that this is a committee that is both an oversight body but also a body that is supposed to be able to say hey, what is and is not happening. And in the past the Intelligence Committee leadership has, particularly during the snowden revelation, so even recently, have played this very Important Role of saying, hey, weve been fully briefed on program x, and we of confidence in the legality and appropriateness of the agencies behavior under x circumstances. But here you have a situation in which chairman of Intelligence Committee goes to the white house to, trouble even quite understanding what he purported to do, but to receive a bunch of information and then to release a bunch of information, all of which was about, in some sense these alleged misuse of an unmasking of presumably lawfully collected either 702 are conventional size of material. This leads to his recusal from the russia matter. But immediately upon the happening there was discussion in the Intelligence Committees of what this means for 702 reauthorization. Does it get harder. Seems to me that makes the environment much, much more challenging, yet . Sure. Going back a step, everything is harder right now. Everything is harder. Its harder to see the nonpartisan sort of treatment of intelligence authorization bill, a bill that authorizes this authority. I do think that, look, the episode which i think, does make it harder but i dont think it is representative at all what the rest of the Intelligence Committees, particularly when you conclude the Senate Intelligence committee, you include the rest of house Intelligence Committee in particular, Ranking Member shift, this is not, his experience, again i think it was an isolate episode. I agree with you, the idea of the chair of the house Intelligence Committee 20 the white house is not in my experience but that doesnt happen. Thats a very odd, strange thing or him to do. Theres a big difference if you can compare how, what he said, what chairman nunes said to want chairman mike rogers said in aftermath of the snowden investigation, to your point of how the Intelligence Committee reacts to what the Intelligence Committee is doing. All of which is to kind of agree with you that this has made harder. The nunes episode i dont know how much stock to put in that is something that really change the dynamic. But if i could go back to Something Else you said before, which i think youre right, its a good observation. Like, if you dont think with the president is saying is true, then how do you invest in him these additional authorities. That becomes as real dilemma for people and ill put myself in that position of who worked on this authority, sort of trying to imagine sort of dangerous people or difficult situations in terms of who is in the white house, but not necessarily anticipating somebody like donald trump. So one answer to that is, is seven which reflects a law that has substantial oversight and compliance mechanisms built in so that it would not be, i think you look at it and think this would be very difficult for a president acting on his own accord to abuse his authority because of the fact that all three branch of government are directly involved in overseeingw it is used. So theres one other big seems to me legislative impediment, other than the general atmosphere of congressional dysfunction, which is something we havent talked about but as a background condition thats at least speaking personally i dont know whos going to quarterback this thing. In 2008, i knew exactly who was quarterbacking 702, the creation of the 702. I knew who was doing the work, and i knew who had the clout to do the work. In 2012, i knew who had the clout to do the work, write . But right now i look at it and i say, all right, th the presidens not merely doesnt have the focus, doesnt extend issue, hes actively tweeting the authorities are being misused. Right . The fbi director has been removed, and the dni is not at least as i can tell sort of highly energized and sort of being the person who is going to drive this train. So my question is, whos of the quarterback of this thing . Wheres the energy between now and the end of december going to come to get this thing done . Welfare, do you think . So in 2008 for the record i did not put it up to that. 2008, it was, the white house was fully behind it and it was director mcconnell, dni, the attorney general and then powell and the letters behind, then powell at dni especially. 2012 simile was sort of also the dni and the Justice Department together. And now say dont have anyone at nsd. So theres not Political Leadership there. Its hard to know where this comes for basic agree with you. Its hard to see where the center of gravity. That is mutable cover rent. I think even as of last year the Justice Department was starting to pull together the effort a bit. I know folks there were thinking about looking ahead to 2017, but, and director coats certainly had the ability and the sort of infrastructure in place, especially given his role on the Senate Intelligence committee, he understands the issues, i think its a matter of making this a priority and understanding the importance of this and saying okay, of the free things were going to work on this year, because thats what we did in 2008. You just picked a couple of things and you just decide what youre going to work on. I think thats the kind of effort that will need to take place. So when optimistic way to think about this is that the old phrase is theres nothing like a hanging to concentrate the mind, write, and that as you get into the fall, you know, my colleague always says go dark on 702 for even 24 hours as a National Security emergency in the first order. And as you get toward that actually happening, people will focus, and a lot of extraneous stuff that seems like a real impediment now will fall away because it has to get done and it would be like a government shutdown. It has to not happen so it wont happen except of course unless it happens. What are other reasons that you can think of to be less pessimistic than the last few minutes of conversation . Well, im actually not that pessimistic. Why . As much as the dynamic is difficult. One, what i said, i do think there is broad consensus around the corporate i agree with you you can chip away at it and make it almost operationally difficult to use to the same degree. I think that the experience that weve had with 702 since 2008 has created has created a general consensus that there is true value in the way it works and not a lot of criticism about the Core Principles or corporations. I guess thats one. I guess two, as much as there or people are very suspicious, you know, skeptical of government abuse of this authority, they really arent concrete examples of it being abused if you ask folks who are real concern, show me where theres been a problem, you know, of a serious nature, compliance issues, and some of the most important or significant but not i think some of the real abuses, nothing like sort of abuses of the 70s, for r example, anything on that order. So generally as pclob found, the privacy and Civil Liberties Oversight Board found the law had been implemented with thoughtfully and rigorously. So those are, so thats one reason to be optimistic. Having said that, if i were going to be the dni general counsel or the head of nsd, i would not make christmas vacation or winter break plans. I would assume, would not plan to go skiing thin. I would think you are going to be, theres going to come down to the wire. Typically thats what happens with these sunsets. They do tend to come down to the last few minutes and be over brokered. I would think, and i guess misery to be optimistic as i think there are some areas where they can be some compromise that will get people who have concerns greater degree of confidence about transparency. So thats another reason to be somewhat confident. I want to have you spell out a little bit of that area, possible compromise, but before do that one thing about 702 is that it is not an on off switch. If you were still agency general counsel and you thought, and you get, there some date after which he say hey, if were not sure we will have this come january 1, we have to start when it down now, we had to start making contingency plans, and those operational decisions are enormously, enormous Time Investments for multiple agencies. Im obviously not asking for anything sensitive, but what you would think of as that date . Whats the date after which the agencies have to start thinking about hey, we dont know this is happening, we need to start making technical changes, winding programs down, having contingency plans in place. So thats a great point because people dont necessarily realize how disruptive these sunsets can be to planning. That theres not really an option just to pull the plug at midnight. And you need to back to title i. You need to start planning for this in advance. I dont know the date. I would expect that there are people thinking about that now, the career folks at nsa and doj and fbi, particularly in the legal offices are thinking what do we need to be planning for in case this does expire. Now at the same time id have to go back and read carefully and ensure theres folks in the truman know this better than i do, but there are ways to think about the statute and authorizations that it been granted that might allow for there to be continued collection after january 1 in the absence of a statute. You mean you dont know that . I would have to read it carefully to see but i think there are provisions that would allow for that. What actually expires is the authority to seek new orders, as i think you could, if you went in on the right date in december and the fisa court authorized in order december 31, you could imagine that order having a yer of life, or six months of life beyond the expiration of the statute. But that of course assumes you know what the court is going to do. Thats it. Even with that you are still then having to deal with providers who are going to be, they are going, they are not going to be very keen about an expired law, and existing authorization trying to convince them this is all, that they are covered basically in complying. Its a kind of a nightmare scenario. Although we kind of went to that with the america act in 20072008. Before we turn to what possible compromises look like in your judgment, im just interested in how controversial within the community what youve described today is, and what, for that matter what ive described is. Theres a National Debate about these authorities, the good thing, a bad thing, are they too broad, do we need but within the community, is there any disagreements that would be a disaster if this authority lapsed . I hate to speak for the entire community but it really dont think so. I dont know of an issue or an authority around which there so much consensus that goes to its value. My own sense is that this is, theres really no dissent within the community about the value of 702. In congress to claim, my assumption is just as with the usa freedom act, theres going to have to be some compromise to get it done if only to give people a facesaving opportunity to vote for something or not to hold it up. So the question, whats the realistic latitude for compromise . What could you shave off of 702 today without damaging theunderlying authority . The place i would look to answer that question is supporting, to look for ways in which government can provide more information about how easily and i would try to hold the line on sort of how operationally that happens. I dont, thats sort of reading the debate a bit down the road. I dont know if thats amenable but ill be specific. Because i know youre going to ask me, the general answer probably but i think the issue that doesnt strike me as one that goes to the heart of some of the concerns is this notion of incidental collection. And that for folks in the room, the idea that when you are targeting somebody outside the United States under 702, you may collect the other side of that communication and that could be a us citizen in the United States and so youre not targeting that person but you collect that end of the communications. Thats what we typically referred to. And the government has not, and has sort of resisted disclosing how often that happens for a us person. You think the resistance is a function of, the government describes it as technically difficult to describe. To describe the number of people and by the way im pretty sure i have been collected on and im certain about that. Is your impression that the fundamental resistance to releasing a number is that its very hard to calculate or is there something more peculiar than that . Couple reasons that youve heard is its hard to calculate, youve heard the argument that is counter to the interest of protecting privacy because it would require the government to go in and figure out is this person i us person and sort of data into the communication further. I think thats probably right. I do think technically it would be hard, its a resource issue like a lot of reporting items are but given the concern around this and this idea that you know, maybe ill talk about this but theres a sense that this is somehow counter to what the statute is meant to authorize, ill explain what i mean. In other words the idea that you reflect one in the United States as a consequence of targeting somebody outside the United States so the sense that inconsistent with the purpose of the statute. Andtherefore you need , you we need to do more public reporting about how often that happens. I think thats wrong. Thats my view. That issue was debated in 2007 and 2008, the one in question in particular in congress have a lot of opportunities to limit that statute to prevent exactly that and they passed a law and did it intentionally. Thats what i was going to say. I think thats a myth about the statute that someone would say its foreign intelligence, all you care about is foreign, overseas intelligence or that only involves somebody who is overseas when in fact youre speaking of somebodywho was the recipient of this information , you were obviously extremely interested in who that person was in the United States, who was caught up communicating with somebody overseas in yemen or pakistan and that was critical. There are procedures of what you do with that information but that was always the purpose of the statute to identify the person in the United States. And having been, the incident in which im fairly certain i was the subject of incidental collection involves a situation in which i got a call from the fbi warning me that i was a Cyber Security target of some actor. The context of the conversation was opaque enough that i dont think it was a domestic criminal matter like somebody was identified. My assumption was there was some communication you know, may or may not be 72 in which information about me was incidentally collected on somebodys system overseas, maybe domestically but i suspect and i got a call toward me. So we have this assumption that if you are sort of the subject of incidental collection, thats a reflection of a Civil Liberties violation. To the extent that this happened, im pretty sure that it did, i consider that protection of my Civil Liberties, not the other way around and i wonder if the incidental collection issue assumes eight Civil Liberties violation and lots of situations in which actually that would not be a reasonable assumption and that sometimes thats affirmatively protective and sometimes its just neutral. Yes so in your situation i completely agree. I do think that its a common way in which it matters is that the fact that somebody, the incidental collection does frame the fbis focus on the person in the United States, not one of eight and potentially a victim but they are now a target of fbi scrutiny so thats sort of the terrorism scenario but folks know that what happens at that point is the government, fbi and the lead obtains a title i or seeks a title i fisa seeks to establish probable cause so the law has provision after prevent provision that prohibits the government from trying to focus on the person in the United States without getting fisa reverse targeting which is prohibited any possible permutation that you could imagine in the statute itself. Lets take a couple audience questions. We have about 10 more minutes. Wait for the mic. And introduce yourself. Buys aggression from the center. There may be a misperception among some people, ive got 702 somehow an oped in collections and most of us in the community are aware that thats exactly what it was intended to do, that one of the main purposes of the statute was so that communications between foreigners and americans could be picked up without a fisa order so that the government could look and see which americans they want to focus on and i want to point out theres a bit of a trip tension between what you said, we were interested in those communications to know who that american is and then to say this already is targeted entirely at not us persons, just foreigners. The same time youre wanting to know who the american was on the other side that point that out because i think theres a lot of misunderstandings about what incidental is and what part of the problem with that term is it suggests , it allowed the government to say the statute is only about foreigners, interested only in the foreigners and thats clearlynot. To their point i think its important to be precise. Im not in the government now but ill be very in terms of my own understanding, the way i thought about it was we were trying to figure out who in the United States should be in peril and one of the great ways to do that is see who might be communicating with somebody overseas. We are targeting the law authorizes the targeting of somebody whos not a us citizen overseas and in the vast bulk of the collection is really foreign to foreign, i guess it focuses to know the best bulk of whats collected when youre targeting somebody in yemen or pakistan is not a us person is other communications with people in yemen and pakistan were not us persons but every once in a while when that person communicates, your target communicates with somebody in the United States, thats critically important to foreign intelligence and Everybody Knows like you follow this, one of the cases that can be classified is an instance where coverage under 702 of a al qaeda corian in pakistan when that person was communicating with us ozzie and or or a colorado who was passing along bomb making instructions and it was only through fisa that person was identified and without 702 i think its a fair inclusion that it would have been very hard if not impossible to identify dazi at the time he was identified which was before he traveled to carry out a bombing on the subway. Data that, i think i dont think there really is attention. I think 702 allows only the targeting of nonus persons overseas. No one has ever to my knowledge at least knows anything about the statute, has ever argued that it doesnt authorize the collection of communications that are exclusively overseas. It allows targeting of people who are nonus persons overseas and they communicate with people all over the world including in the United States and by the way, if theyre trying to protect the United States, those Communications May be of particular interest and i just actually dont see where the tension is there. It seems to me that 702, one of the virtues or one of the reasons i mean, i felt this at the time in 2007 and 2008 was that it actually told you very clearly exactly what it did and didnt authorize. Is remarkably nonopaque statute and the stuff was debated and i agree with you that people were actually quite upfront about it. So im, i wonder the turn incidental as this life, people have the idea that it doesnt seem effective to me at all. It just means youre not the target. Soft target and incidental or legal terms, we know what they mean but they carry consultations. Other questions. Yes. Matt, you mentioned earlier that trump to further shows is expressed between the way the community, tell us about how that affected the Intelligence Community and how that disrupts in terms of their jobs or whatever. Lets get the last question, one more and then matt, he will have his final word. Yesterday it was reported that the government issued subpoenas requesting information about unmasking by former Obama Administration officials. Can you talk about what type of requests that congress usually has the authority to request information or would he have had to issue a subpoena to get information. Eyes the chairman of the oversight committee. Thats an interesting question and ill take that one in a second. I didnt see that report but you said it does strike me as out of the ordinary certainly about the community would have the ability and the relationship of the Intelligence Community to obtain information about unmasking requests with everyones purpose and of the general rule of the minimization it sieges to redact the name of the us person or identifying information about persons who are part of intelligence reporting but you can request it if necessary to understand the importance of that information that the name he unmasked or identified. The routine for that to happen, the protective measure but in answer to your question it strikes me as unusual for there to be a subpoena for that information that you described. My own experience with house intelligence and the same with senate is that we are up here all the time, on a weekly basis that several Staff Members talking about issues that are well within their oversight within the purview of their oversight so thats out of the ordinary. So the broader question about the Intelligence Community, i think you do worry about the morale of the Intelligence Community. There are folks in here that our current members of the Intelligence Community but i do think that this sort of, the statements directly from the president that appear to sort of denigrate the Intelligence Community or dismiss information is being provided, on one level it has an effect on the workforce, it has to. Thats a consensus from fulltime talking talking to that they are committed to doing their job overtime you might be morale declined or the other thing is that in ctc, i was struck out i would go in the morning, get the briefing and it would be, just this incredibly talented group of people, younger people whod been up in the mornings to prepare briefings and he could have done a lot of different things, they could have gone to wall street, they couldve gone to Silicon Valley and they wanted to fight al qaeda. And thats the incredible, thats pretty incredible and we dont protect that, as good stewards of that sense of mission, that you cant take that for granted. But then secondly, i think beyond just the workforce is the more substantive concern that here you have people providing Important Information about our National Security and Foreign Policy interests. And if that information is not being trusted and acted upon by the primary consumers meaning the president , then theres reason to be concerned about whether or not its based in fact and that information that we spent a lot of time and effort obtaining in order to ensure that were making the best possible policy decisions, thats a concern as well. Thanks very much for joining us. Thanks everybody, thank you. I want to make a couple quick announcements. Were taking a quick break and will start again at 2 30. Our overflow room at the tv in it that works all the time today for some reason so given that theres a lot of seat available, if people want to squish in a little bit better, that would be helpful so will start at 2 30. [inaudible conversation]. Another brief break in this conference about the future of the foreign Intelligence Surveillance act or fisa. Fisa expires at the end of this year. Coming up in 15 minutes, there will be a look at Civil Liberties concerns with fisa, scholars and the fbi general counsel will address the topic, all that coming up a little bit later. We had this from politico today, james comey will testify june 8 regarding russian interference in the 20 15 election after an open session in the morning, the committee will be read further by mister comey behind closed doors, that senators Richard Berman mark warner leaders of the Intelligence Committee. So in addition to russias efforts to influence the president ial election, much of the questioning is likely to set center around mister comeys termination which chop senators in both parties. Read more at politico. Can, and cspan will have live coverage of that when it takes place next week. Look now at an earlier portion of the fisa conference. Thank you for coming today. I realize theres probably some other countrys top experts in section 702 in the room and if you are one of the people who is one of the countrys top experts you will learn nothing in the next 25, 30 minutes but the goal of this portion of the talk is to make certain that we are all starting from the same foundation. Im not going to argue in favor or against any of the provisions of section 702. Im simply going to lay it out so that were all starting from the same place. My understanding is programmatically this will go to until 12 45 and we got lunch and then we will come back and go into the remainder of the program. Let me start at the highest level, section 702. Its part of title vii of fisa and it allows the attorney general and the nic jointly are authorized targeting communications that satisfy all three of these prongs versus other us persons for reasons we believe to be outside the United States to acquire foreign intelligence information. So those are the three key requirements which relate to section 702. This presentation is briefly going to get Historical Context so its important to know how we get here. To talk specifically about the fisa amendment in 2008 which keyed up the discussion where having this year in congress. Now goes through some of the highlights, key points of section 702 so i downloaded this from, this is 19 scan, 1978 legislation but this is the original fisa. Fisa was originally enacted in 1978 and it was to authorized electronic surveillance for intelligence purposes. And it was directed at indications exclusively between or among foreign powers. That was in 1938, another feature we see from the 1978 legislation is that there had to be no substantial likelihood that the surveillance will acquire the concept of any communications for which a person is a party so on the earliest days of fisa we see that it is this attention towards not intercepting us persons in communications if possible. The other thing thats notable back in the original fisa is the creation of a foreign intelligence or Valence Court so its the chief justice cell publicly designate seven District Court judges. Today we have 11 but back originally it was seven, that would increase 11 under the patriot act of 2001. The sort of foreign Surveillance Court was created under the original 1978 fisa and in addition. That same law also created, reviews of the foreign intelligence trail and court review. As in, it was very rarely appealed from the fifth but it has been used in several key rulings so that framework, section 702 and in fact that didnt exist, that framework dates from the original enactment of fisa. So unsurprisingly for legislation that was originally put on the books in 1978, and the times over the years, heres some of the amendments that at least i was able to find, im going to give specific attention to some of these latter ones here because those latter amendments are the ones that created section 702 that we have today. So a precursor to title vii section 702 was to protect america act of 2007. It was enacted in august of 2007 and this was specifically, heres the first time we see language like what we had in section 702 today. Having dni and the attorney general authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the unitedstates. It was protect america act of 2007 had a sunset built into it and it could basically , it was automatically expiring at 180 days after and that language was enacted in august 2007 so it then expired to the sunset in february 2008. February 2008 onward there was this discussion in congress about what to do and finally a couple months later in july 2008 we had the passage into law of the fisa Amendment Act of 2008 which is the act that created the title vii that we have today. This was the first time we had that in the form essentially the way we had today. So this is the legislation creating title vii. Youll notice here its got a sunset and that as originally created, sunset on december 31, 2012 so a little over four years after the original enactment. The day before it was going to expire on december 30, 2012 it was the reauthorization so it would be nice to think that in 2017 this will get was all before december 30, 2017 but if history is any guide, it might come down to the wire so thousand 12 there wasnt the very end of day before, and original sunset, it was extended and particularly it had this language here striking december 31, 2012, inserting december 31, 2017 and thats where we are today. The simple law that we have on the books which is the reason we have so much press these days because the issue is extending this either with or without modifications is something that has been discussed quite a bit so thats kind of a level setting here we are. So i find it helpful also because people use these terms section 707 and title vii, fisa so i want to put it in context. Fisa as it exists today has a number of these titles and im not going to read them all butive bolded title vii which is where section 702 lives. Theres title iv, 10 registers, title iii is physical searches, title iii is Business Records. Everybody here is familiar with this part of section of this patriot act, thats not section 702, that lives in title v and so were talking about title vii. Section 702 has a section of section 7 so if we push into title vii, we get the sections within fisa, within title vii so again, im not going to read all of these, other than to highlight obviously were here to talk about section 702. Notably these are other than us percent, so section 702 as i suggested at the beginning is specifically designed in relation to looking at communications of people who are not us persons that contract with some of the other sections of title vii which actually address the us persons, title seven or section 702 is specifically nonus persons so that they Historical Context and then kind of a present context of where section 7026, and but more broadly, within that so now lets talk about what some of the keystones mean. Us persons, im not going to read the whole definition but when we talk about us person, of course we mean a citizen of the United States and we also mean an alien, administering lawful or permanent residents. This is actually a definition from title i of fisa but this definition referred to in title vii and a definition of us persons. So lets take a look at what it allows. Session 702 allows the authorization of weapon communications of persons reasonably believed to be located outside the United States, doesnt mean necessarily in r but they need to be reasonably believed to be outside the us. The goal needs to be to acquire foreign intelligence information, thats it. Thats the goal of this thing. There are authorizations to do that is basically the attorney general and dni jointly are able to give this authorization but they can do so under two conditions. One is upon the issuance of an order by pursuant to an order issued by the Foreign Intelligence Surveillance Court, from one. Alternatively there is an accident circumstances prong which allows dni and attorney general to authorize prior to getting an order from the Foreign Intelligence Surveillance Court providing that they go back within i believe it 10 days and file the appropriate paperwork with the Foreign Intelligence Surveillance Court so thats the kind of key authorization language that you have in the statute. Let me take a detour here and were talking about section 702. Lets briefly talk about 704. The reason i wanted to do that is because in a lot of the discussion about section 702 you hear people talk about the lack of probable cause. That provide the context there, section 702 as we know relates to nonus persons, section 704 by contrast relates to acquisitions targeting us persons outside the United States and notably this is to detect the statutory language from 704 that gives probable cause prong in that so two people often contrast the probable cause requirement that must be satisfied for section 704 with the absence of such a requirement for collections under section 702 and in section 704, theres a definition which identifies some key features of what probable cause is and again, that language is not in section 702. Lets return down to section 702 and talk about what is foreign intelligence information. There is the definition of that and theres sort of twopronged definition there, the second prong i think subsumes the first bow talk about those. The foreign intelligence first of all, thats one of two flies on this, its information and this is sort of what youd expect, its addressing an actual or potential attack. Sabotage, International Terrorism or clandestine intelligence activities by a foreign power. So those are, thats a foreign intelligence information. Theres a in additional portion of the definition is broader and that this right here, its information with respect to a foreign power that relates to concerning us persons necessary to the National Defense or securing the United States for the conduct of the Foreign Affairs of the United States so i think its reasonable that everything in this slide , the attack in International Terrorism and planets and intelligence, you could argue that there subsumed by these so this to me is the thing that defines the scope of this and so one of the things that people discuss is what is the scope of foreign intelligence information and how broadly should that be interpreted but thats the statutory language there. Theres a limitation here and i want to go through each one of these because its important to remind at least for me to remind myself what you cant do under 702. First of all, youre not allowed to target any person, us person or not if you know that person is inside the United States. You also cant target a person outside the us the purpose is to target somebody , to get information about some of these inside the us so for example, lets suppose i am communicating , in the United States, im communicating with somebody outside the us and if the government were to want to get my communications, they couldnt use action 702 to do an end run about climate and say lets go acquire the communications of the person outside the us that john was talking to because if we do that, were going to get johns communications as well. Thats prohibited under item 2. [inaudible conversation]. [inaudible conversation] hes my favorite. All right, were about to get started again. Theres stilla lot of space in the front two so i encourage people to fill in as much as possible. Im going to just start it off. Im russell walden, senior manager for affairs at the Hoover Institution for our next portion of todays conference. We will focus on the law and Civil Liberties section 702. Im going to do a very brief introduction of our panel and turn it over to our moderator. First i would start with Julian Sanchez whos a senior fellow at the Cato Institute where he focuses on the intersection of technology and privacy. Alex abdo is the senior attorney with columbia universitys First Amendment institute, formerly he was a senior staff attorney at the aclu where he has argued cases before the federal Court Related to nsa surveillance. Next we have susan hennessey, shes a fellow at the Brookings Institution and the managing editor of the author, previously served in the office of general counsel as a National Security agency. And closing that out we have the general counsel with the federal bureau of investigation, thats james baker. And our moderator for this session is shane harris whos a Senior Writer on intelligence and National Security, Cyber Security issues of the wall street journal. Hes also author of the fantastic book on Cyber Security issues final at war and i highly recommend it and with that ill turn it over to shane. Thanks everybody, can you hear is okay. Our next cozy panel and this afternoon, thanks very much for havingus here. Ill say personally as a journalist covering section 702 and related issues, these Civil Liberties issues have been the most top of mind for most americans, certainly my readers as well. Thats been the top of mine so im please to moderate this panel and we had a terrific group of people appear so im going to talk in moderated discussion here for the first 45 minutes or so and were going to open it up to q a so we want to encourage dialogue with all of you so please ask questions you want asked and will get to as many of them as we can toward the end. I want to start with jim baker. I think, not to put you in the spotlight were anything. I think you may be the most senior representative of a Government Agency here, standing in for the interests of Law Enforcement maybe and National Security. I want to start with sort of a basic firstquarter question which is can you explain to us in plain english why section 702 authorities are important for the fbis doing, what are the baseline that you can say why this is important that i will presume you say needs to be reauthorized. Thank you to the Hoover Institution for having us here so i appreciate that. 702 as i was saying in the last panel is vital to the fbi and to the Intelligence Community. It provides us with a wide range of foreign intelligence information, especially including actionable intelligence stuff that we can do something about. So thats critically important for us. It is something the fbi takes in and combines with information weve lawfully acquired just as the 702 information. We pull that together in order to connect the dots and everybodys heard since 9 11 it was one of the key findings of the commission. Telling us that one of the flaws was that the government did not adequately connect the dots so the fbi combines revenue to information, all the other information that we have and we check our databases against them. We tried to figure out when we get a tip and get lead the information from a variety of sources, what do we have in our existing holdings, and email address, that sort of thing so we use that to guide our investigations, to ferret out what it is what the threats are and move forward. Its vital to our daytoday operations. Its something i think you would argue that without it. We can talk about how we can propose other legal methods. Taking away today, what landscape . If its completely taken away, then the fbi is losing a vital source of collection on very important targets. We tried to be very focused at the fbi. The fbi is very focused on which targets it asks the Intelligence Community to target or with selectors, because we first of all have to make sure if its required that any of our selectors are associated within a full investigation being the highest level of predication we have in order to open investigations. So if we were to lose it all together, we would lose vital collection on the range of very important targets. It would also deprive us of lead information. It would deprive us of the ability to connect people to threats, to connect threats to particular individuals, to ferret out whats going on. Susan, recently the nsa has been at the 702 program, the collection of about information. Walk us through a little bit about what that means and what you think the practical reasons for doing this were and what the effectiveness was. Im nervous to say this since in front of familiar colleague faces, hopefully they wont be shaking their heads if im getting it wrong. This is a highly publicized decision but the nsa announced about a month ago, a few weeks ago at this point to essentially voluntarily and whats known as about collection so under 702 there are two forms of collection, upstream and downstream. Within collection downstream is only to and from the women upstream theres another category about collection. I think im treading the numbers correctly but im sure that accounts for about 10 percent of 702 collection and about collection was in that as. 02 percent. The former Deputy Director of nsa chris english a very comprehensive paper on this. I think others of this specific that he cited. So nsa announced that following a number of complaints , they decided to voluntarily and this process. Though that offered a series of controversies. First because nsa had in the past represented this as important and vital and necessary and so there was criticism but that was somehow not an accurate decision because they didnt need it anymore. I dont think thats quite the right way to do it. We know about the collection does pose a particular heightened risk of collecting Domestic Communications, Domestic Communications but we happen to mention a particular target but it might not be a us persons name but a us entity so american airlines, you can imagine the particular futility of that interaction. In recognition of those heightened risks, there were additional safeguards created. In order to try to mitigate against the risk. There was a series of inadvertent complaints compliance incidents, things occur, these happen. Theyre very serious, the fact that their accidental is not, doesnt minimize their significance. Although it is quite relevant to the cause. So those are selfreported to the court, sourcing exactly the process we want to see, compliance is being attempted and selfreported, that a determination was made but rather than invest the cost of coming into compliance, doing the things that are going to be necessary to ensure those incidents wouldnt occur again moving forward, it was better on sort of a costbenefit analysis to eliminate those from the collection. Nsa has said that they are not able to eliminate collection without also losing other information. Theyre saying theres a cost here. This is about Risk Management so again, this is a process that we want to be seen. We dont want Intelligence Agency to sort of take it collected all, select everything we can. With this kind of voluntary, and ongoing assessment because its critical in this area. That said, theres i think its a little bit of an illustration of some of the is here. And thats whenever we evaluate sort of the difference of an essay saying it was a necessary program. Previously and in this instance deciding to no longer go forward with it. Its, in examining the cross benefit analysis as we add costs, eventually costs will outweigh the benefits. We know thats true for everything, even if you take those were vital parts of the premises that matt was talking about, if we put enough costs there, that will outweigh it so this is why in this instance i think it was a pretty decision. The appropriate judgment but i dont think we should sort of take for granted the notions that there are real costs here and there are costs as we put on additional reporting and technical requirements. A question on the compliance, how do we know they were accidental and inadvertent . We know because there was a declassified court that while it was extremely critical of the nsa on a series of metrics, it was quite clear that it had no indications there was any sort of potential malfeasance here for you. So we have a program that the Intelligence Community says is final, responsible for a large amount of intelligence but theyre in the Intelligence Community is willing to, i guess i would see it as amend the program when they feel is made mistakes. When you look at this amendment about collection, is that satisfying to you from the Civil Liberties perspectiveor is that , when you read that more as a token considering that this is the students responsible for a fairly negligible amount of information in an already small portion of the Overall Program . I think its hard to know what exactly is given the nsa for example has disavowed its role in the future ceding its authority. They had explained technically what has changed about the way in which the nsa is engaging in upstream surveillance. There are questions that go along with that. And it raises i think a different question. I have a different taken susan on says about nsas representations related to the vitality of this part of the program in the section 702 more broadly. When it was examining 702 for the reports. , when the Oversight Board was examining 702 for the report, focused heavily on collection because that was one of the more controversial forms of collection and based on representations made that were by the nsa, they issued a report that said that it was a technical necessity to conduct about surveillance in order to be comprehensive and even to or from surveillance and made it sound as though it were vital so why am i agree with susan that its a question of costbenefit analysis, the nsas previous representations made it sound as though the benefits were combined in the cost of losing it were too high ever consider losing that and now almost on time he flipped and eliminate that authority. But again, its hard to know what to make of it given that they havent disavowed in the future , and you know, susan is right to point out the reason we know about the compliance is that this court order, the only reason why the court order new what to publish about these compliances is it was selfreported by the government so we have a governance representation but we still have a problem and whether it was accidental or not but we certainly dont have i dont think a full adversarial sense of the story. He sees modifications which was obviously portrayed as a very big concession. Its actually just a token . Its hard to know what does your butt tell you . My guess is that the temporary costs, the kind of present cost of bringing the program into compliance with what you wanted, the nsa decided were too high at the moment and that is preserving flexibility and its my guess that if Congress Suggests codifying the end of the collection, if i were to guess amending it to prevent the nsa from starting about, my guess is it would oppose that but that would be the ultimate test as whether its a suggestion or something more julian, you are one of the better explainers of not just intelligence policy and surveillance law but you articulate the Civil Liberties component of this as well. What are we really worried about here . We are hearing about a program that provides these massive capabilities, as compliances as jim baker said thats targeted and focused. From your perspective right now as were heading toward the end of the year, and the question of authorizing this, what are the top of the line to the liberty issues that you think that people in this room particularly are going to have . I think the essential concern always is intelligence authorities is that the political risks of intelligence gathered. Its what different set of concerns with the criminal surveillance context and theres the two has to that, one is sort of insufficiently accountable Intelligence Committee serving its own interests using the damage collected which of course is a similar character image of the J Edgar Hoover or confidential files essentially. Yanking the leash on these nominal overseers using the power of ask about them and the other section of course is the insufficiently autonomous Intelligence Agency passing by loyalists using it as a tool to gather political intelligence on opponents for political adversaries. One reason i think this is a special concern about that is the scale that magnifies it dramatically so if you think back to the intelligence scandals exposed in the 1970s, these involve first sort of laborintensive deliberate targeting of people like Martin Luther king and the activists or civil rights leaders and also, because it involves targeting, abuse that was after the fact sort of that you are likely to notice, leaving noticed there had been a decadelong wiretap on the naacp and it says is he kidding or what is it therefore . So were able to at least shut that down. One reason, were talking about every year 1490, 100,000 foreign persons having their communication targeted for in perceptions. Dumped into a massive repository, probably on the order of 1 billion communications annually. And then being stored for years at a time so the concern isnt just will there be improper targeting of the kind that might be easy to detect and then to trace back if that information were impeded, do you trust that this sweeping kind of picture that sucking in stuff is not only not going to be improperly targeted in its inception but will be properly used after the fact and especially when you have these endemic compliance issues, that is when youve got formal procedures designed to constrain access to this data or being routinely ignored as increasingly is the case with the court being informed a couple years after the fact, its very difficult under those circumstances to detect abuses when they do occur but does the abuse part under a Certain Circumstance where you got that database, is about what someone knows when they leave with that information and what they do with it after they leave the office and thats the sort of thing that after the fact is extraordinarily difficult to track so my concern is the potential for a repeat of the of the intelligence abuses over the much diminished ability to detect the path. Back over to susan on this point because with the julian is raising this issue of compliance being ignored and i think its precisely been the fear of many people in the Civil Liberties side yes, you have this extensive exhaustive some might say Compliance Regime but theres this ability to ignore it so respond to that idea. Is there something thats being routinely ignored or is that an unfair characterization in your mind . Nobody ignores the law, nobody ignores the policy you are setting under 702 or under fisa. Thats not the culture of certainly the fbi. Thats not the way we operate, thats not the way we manage or lead and people are expected to comply with the law and directives. People make mistakes. We are a human enterprise involving complex technology. Tell me where else in society there are not mistakes involving humans and technology so the key is that there are multiple overlapping layers of compliance run by a variety of different folks so from the fbi, we have department of justice, wehave the od and i, Inspector General, department of justice. We have the fisa court most importantly and we have congress conducting oversight, having hearings, Staff Members, and give briefings and so there are multiple levels of oversight that are there to prevent exactly what julian is worried about and i understand why people are worried about it and whenever the government does anything with respect to the collection of indications regarding americans, people should focus on that and think about it and make sure, the American People should make sure there are protections in place and that the right people are running these organizations. Thats true but what i would say is its just not how we operate. Mistakes are made, we tried to correct them, we try to identify them and figure out what went wrong. Yes, so i do think its tremendously unfair characterization. Certainly of the current sort of discussion. The entire set of rules that were deviating right now are designed to prevent exactly the kinds of abuses that julian describes, recognizing the seriousness and the gravity of sort of those historical abuses. Theres part of the reason why these laws were passed in the first place. So the first i think sort of mischaracterization is the notion that there are all the citizens outside, foreign citizens and the United States Intelligence Community just collects them willynilly so thats not a constitutional issue, that theres something inherently wrong and indiscriminate about that. Theres this collection that takes place by a foreign intelligence purpose and its highly articulated. This is not a warrantless surveillance, its sort of i think thats under a modified work requirement because of the operational access so its not the90,000, 100,000 , what the number that is collected but those are collected for a purpose and for an important purpose that congress and the courts and the executive branch all recognize as important purposes, thats the functioning of our system. The other thing is that misunderstanding is the thing that compliance is really just nsa figures out they made a mistake and decide whether or not to tell the courts. Compliance is a multilayered apparatus so theres technical elements of compliance. Theyre designed to avoid mistakes in the first place but also treat conditions in which when mistakes occur or when intentional violations occur, theres also daily reporting that occurs between overseers in doj. Theres an entire level of sophisticated, some might even say intrusive congressional oversight. And that of course on top of that theres the annual certification process. Theres also Inspector Generals so their quarterly reports that are put into the Inspector General so there are just like sort of the characterizations that occurred over the sudden disclosures, there has been a sort of rentable allegation that nasa has ever not approached those mechanisms and would face so i think this really is a debate about everybody is approaching in good faith. There are these possibilities for very serious abuses. Everyone recognizes that and the question here is how do we best Design System thats going to prevent exactly this sort of situation . So were all in this together. A couple points, one is i think that few people are in a position to question the good faith of the way these programs are implemented. One institution that is perhaps the best position is the fisa court and the court has repeatedly questioned good faith of the sbi in instituting this program. A few weeks ago the court is nonetheless concerned about the fbis current disregarded limitation rules and what the fbi may be engaging in closures that had not been reported. And thats not a unique sentence, you can find sentences through that gathered through related to this but for me, the bigger schedule is not failure to comply with the processes that we have, to me the bigger schedule is the process we have are so permissive in permitting wide collection of us versus communications. The picture that julian pointed to is one that allows the nsa to collect in a worthless action and i think it is worthless, almost any foreigner is the balance of of surveillance under 702 because the requirements there are minimal. There needs to be a foreign abroad and you can have information about the Foreign Affairs of the United States, that can cover journalists, human rights activists, colleagues you may work with internationally or the sources you report on internationally and for the americans who are stuck up in that wide aperture, the main protection minimization procedures and those themselves are riddledwith exceptions. Not the least of which are one that we havent really discussed today but is that query by the fbi and other agencies in part for things unrelated to foreign intelligence. Lets spend time on that and what is the evidence that the current . The fbi now gets raw Data Collected and they have the authority to query the records that are collected for identifiers within known us persons so they have this enormous database is collected as a result of the wide aperture that he describes and they can get into that database and clear it for any us persons name and they can do that at any point in the process, not just highly predicated criminal investigation and look for evidence of criminality unrelated to foreign intelligence. And i think thats in my view an end run around the Fourth Amendment and the primary defense that is often offered i think is the phrase that tim used a minute ago and similar phrases that were used today is that once the government lawfully acquires information it can do with it whatever it wants. I think thats a myth. The governments ability to do what it wants with information has been tied to the collector in any context of surveillance and a quick but example is the Supreme Court couple years ago addressed the question of whether local Law Enforcement can collect arrested suspects. And the Supreme Court ultimately blessed this dna collection but it was critical to the Supreme Courts ruling that the dna was being used only for identification, not for looking into the Genetic Health of these people, for testing connections with other possible suspects. The fbi said the next they were going to use the dna for a specific purpose. I dont think anyone would say thats what the is consistent with the original purpose or questions because theres some notion that once in, always in. So that to me is a bigger concern than even the compliance issues which are significant. I think theres issues that i can respond, the first one is the characterization of the opinion which i think is, its accurate. This is a highly critical and in some cases fairly critical opinion but i think reveals a rather robust and muscular characterization of the court pieces rubberstamp and one is that the theory is serious, anytime theres failures in the system thats areas and the executive branch should be held accountable for that. Whats not alleged in that opinion is that as i have gotten deeply versed in the underlying circumstances which i dont acknowledge that within an essay about it but the essential concern was there was a rule that the databases had to be segregated when theyre only allowed to search particular databases under certain conditions and that those databases were searched under the wrong conditions. There was never an allegation that anyone knowingly search the database, that they knew they were supposed to be doing but this goes to the basic sort of questions and within that, its important we have this searching and critical inquiry to ensure that all the steps of the process are occurring correctly. A quick question, what is your describing an inadvertent error was discovered where the databases in the system change so that would not happen again and what is the correction mechanism that takes place after a compliance incident is noted . This is going into sort of particulars which im not qualified. The ordinary process is when a compliance incident is detected, it is investigated. It is reported through various compliance mechanisms and theres an understanding of whether or not technical changes can be made to make sure the incident doesnt occur again or training instances or other elements in this case instead of deciding that the prior protections were insufficient and that new protections should be created. It was decided whatever the cost to build new protections would be changing the way systems were designed, i dont know but it was better in this case to simply stop that protocol. So i think thats sort of why i really think its important to focus on the inadvertent nature, not to underscore or pretend as though its not very serious but to sort of be fair about what were talking about. Goes to a judge and gets awarda warrant and targets a particular individual communication. They collected the other part of that communication as well. Its an inherent feature. And so then in that context a series of protections are applied in order to ensure that incidentally collected part of the conversation is handled properly and that the rights of those people are recognized. The same thing is occurring here. This ithis is a different conte. There are different constitutional obligations and there are different operational equities. What were seeing is that same instinct, an attempt in order to recognize the rights of people and to protect the rights of people that are swept up not as sort of necessary evil, but just because thats part of how surveillance works. I want to go back to alex quoted from the fisa Court Opinion, talking about, i forget the exact language but a willful disregard of the compliance procedures by the fbi. You are the fbis lawyer. How does the bureau, how do you respond to that . In general, if theres evidence of some like that, i wont speak about that particular instance today, but we take appropriate action interrelate and that can range from a variety of things. If theres some type of intent or malfeasance of that nature that could result in some type of personnel action but well also look for is a retraining problem, a management problem, a technical problem. We go through and try to forget exactly what is a problem, try to address it, fix it so it doesnt occur again. These things are not acceptable to us in any way, shape, or form. Theres no way. , full stop. Theyre just unacceptable but its a big authorization with a lot of things going on and in a highly changing environment because the technology is changing and how the adversaries use technology is changing and so were adapting to that. So as far as the fisa court says in that opinion its a large and complex operation, 702 operation. And so there are things that happen and we dont accept it and we try to fix them. Julian, you got a start on the final debates want to give you a chance to respond to some of the things you have inherent. A couple things. One is just aliso particular domains you do find a pattern of noncompliance that rises to the systemic level, that isnt one or two malformed queries but is a systematic problem. So pertaining to dissemination of Data Collected under the 215 bulk and the Metadata Program where they found the procedures, restrictions on dissemination of u. S. Person information that so systematically violated the overall regime to govern that data has effectively never functioned. In the most recent opinion there was a an appendix of a hole through the compliance issues but one of them finds a particular query tool that was accessing some of these databases, queries pertaining to 704, 75, other related sections of fisa, that pertain to this tool, 85 of the queries were noncompliant. That is to say, much more noncompliant querying was going on and compliant. Thats one particular domain but it suggests the problem, responded to susan scott made, which is because of the scale and complexity of this, errors and to scale. What are the other things the fisa Court References is the issue of not being able to quantify some of these problems, precisely because not of the tools used to query these databases are interfacing with any face audit system. Audit system that not everythi everything, that doesnt cover all the tools used to query is not that useful because thats the first thing is going to get used when something untoward is happening. I dont want us to be argued that what we think its a good faith of the large majority of people currently employed in the Intelligence Community. Im going to accept that. When we look at these forces medic problems, they are a function of the size and complexity of the operations. But when surveillance is being conducted as a large and complex batch of these repeated systemic failures, the rules put in place to govern them, that needs to, no question whether these are systems where comfortable existing at all. Because precisely that kind of complexity and that kind frequency affair makes it so much easier to conceal when actual wrongdoing happens. We know that previous abuses were not done with that measures taken to conceal what was going on. Abusers of Intelligence Authority in the past were aware of oversight mechanisms and took steps to invad evade them. So when you have a scenario where either complexity or error are causing systematic violations, we can expect thats what intentional violations are likely divide and unlikely to be detected. Sorry. Are you done . The last thing i will say is incidental collection is like universal in surveillance. Physically searching someones house, you might find correspondence with other people. I think the scale of collection here makes things different. Because at least in the criminal contacts when that surveillance happens usually theres minimization in real time so theres an effort upfront to filter out whats actually stored. You dont usually have this massive federated database where all of the fruits of the searches pertinent or not pertinent to the subject of investigation are stored in deadly. The scale of collection and the searchability of the data in massive volumes makes the issue incidental collection much more pressing. Just real quick before we leave this topic. In this lengthy analysis, 99 pages i think it is, of the fisa court that weve been talking about, and which they take us to task for these complaints incidents in very blunt terms as alex was reading, very blunt terms, very critical, nevertheless, in light of all that or notwithstanding all that or in recognition of all that the fisa Court Concludes that the Program Overall as run is lawful and constitutional. They see whats happening. They understand whats happening, and nevertheless, conclude that what were doing is permissible under the constitution laws of the United States. Thats what they conclude. Thats a good pivot. We spent the first part of this discussion looking at futility of the program, the debates about it, the issue of compliance, whether its robust enough or not, all of which are important things that people in congress are going to have to grapple with when reauthorization comes but now i want to talk about the real thing thats going to decide the reauthorization which is politics. And particularly a lot of i think the optics that event surrounding surveillance law that had to say as a journalist covering for longterm i find kind of head spinning. What am i talking about . The phrase unmasking password entered the lexicon before covfefe took over. [laughing] cant resist. So this issue of u. S. Person showing up in intelligence reports and their names being unmasked for whatever purpose in trying to understand them has been brought up in a number of hearings in the context of whether or not Obama Administration officials in a properly unmasked people who were identified in surveillance reports and to have now been had the names leaked to people in my profession. I find this sort of kind of head spinning for two reasons. One, they kind of surveillance in which this is alleged to have occurred did not involve 702, as far as im aware. Lawmakers would bring up these concerns are saying we are going to have to look at this when we consider reauthorizing section 702. And you find many of the people who are very skeptical about these authorities now are pretty much on the camp of people who ate years ago were very much rushing to enact section 702 and amend the foreign Intelligence Surveillance act. So theres been a bit of a shifting nature in the political alignment here. Let me just start with, julian, let me start with you. I mean, what do you make of the fact that now this issue around unmasking, which is its own issue and if a much embedded in all of these surveillance capabilities that we talk about, has become this kind of political hot button at this point, and what is that portend for months from now when the bait is up on whether to reauthorize this particular authority . Its very surreal to watch a series of legitimate concerns about the authorities being raised for what are into particular instances usually sort of frivolous or bizarre reasons. So i think were watching, this is kind of odd train of that. With respect to unmasking in particular, at least in terms of the question of whether rules were followed here, the specific circumstances seem like its at the vacant circumstances in which its pretty easy to understand why unmasking might be appropriate, that is to say, if youre talking about reviewing transcripts or intelligence reports about agents of a foreign power discussing their attempts to suborn or influence someone incoming into senior position in u. S. Government, yeah, of course its relevant to assessing the significance of that intelligence to know who they are targeting. So thats not particularly surprising and im not surprised at least the internal reviews have found that the unmasking that occurred was mostly appropriate. That said, in a broader sense i do think we ought to even if youre not particularly and hamilton of the Trump Administration and think there may well be something enamored meriting series concerns about the relationship with russia, whether thats collection or Something Else, it ought to be concerned with seeing almost constant drumbeat of obviously selective leaks targeting members of the administration that the folks who are reporting them are usually hardpressed to evaluate the significance of independent whatever context is provided by people who are choosing to leak. It may be that that is something people are choosing to do because the process at this point its been so compromised that they are fearful legitimate investigation wont be able to proceed otherwise, but the idea that, you know, unelected persons have the power to so effectively derail and administration, even if you think maybe in this case its the extraordinary circumstance where its justified, the idea that becoming normal to really concern people. Because you know, a lot of politicians have something embarrassing to hide, and so it should be concerning that there is this subset of the government bureaucracy that has the power to decide whose skeletons end up on the front page. Is that just do you consider that to be just the next iteration of the kinds of abuses that we solve that led to the surveillance laws in the first place . Government authorities using their extraordinary power to punish people essentially, punitive kind of actions. I mean, theres a range of different things. One thing i think to worry about, yeah, the freak out in some of the online media about deep state coup or conspiracy against the Trump Administration, obama holdover seems pretty overheated. On the other hand, when you see this onrush of leaks right after the firing of comey, pdf to look at that and see how much of this is maybe legitimately people who now think this investigation will be compromise, the only way to get that out is to leak it. Although still illegally. On the other hand, how much of this flood of new leaks is about a peremptory firing of a beloved fbi director in a manner that many people i think a properly directed saw as insulting . Motormotives are often mixed tht way. Mark seltzer turned out to be deep throat was obviously exposing serious wrongdoing by people affiliated with the nixon administration. It is also probably substantially motivated by annoyed at having been passed over for the directorship which he expected to fall through. Its very often difficult to disentangle public spirited from the motive for that kind of leaking. Let me turn to you. Youve written extensively and you and i talked a lot about you know, the leaks that have come out, what it shows or may show or suggest about the way that this administration is operating before came into office, i think inarguably things in public interest. They seem to be issues that may be imperiling the passage of 702, sort and make it more difficult which you clearly believe would be a very bad outcome. So how do you see the political size taking shape as we go into this subset. I think theres a few things. First, theres no indication whatsoever that any of this information is 702 information, not to say its not relevant to sort of the general protections, but it becomes important in how we think about the various risks of these programs. We should be candid. U. S. Persons information, that is, incidentally collected in the course of foreign Intelligence Surveillance is collected for a particular purpose. Leaking to the media is an abuse and leaking into the media in order to gain a political advantage, even if its to harm a president that you really think as a that person, thats an abuse. Its not wrong in like this violates classified information sort of technicality. Its actually wrong. Its violating not to Security Protection of Civil Liberties protections. The people who care about Civil Liberties should care about that. Its not as clear to me i would want to imply that this came from the fbi. Theres lots of part of use, including political components that have access to that information. But we have to be candid and clear and accountable and i would talk about it. That said, sort of related to both the focus on leaks and sort of, i would say manufactured unmasking controversy, certainly it appears manufactured given information that we have now, that it has actually begun to undermine important elements related to 702. And thats particularly whenever we look at members of congress, including members of Intelligence Committees, asking questions in hearings that evidence that they dont understand the difference between section seven of two and title i of fisa. Very, very chipper programs with very Different Levels of protection. It starts to become more difficult to offer as a defense of these programs well, theres very robust congressional oversight. The reality is members dont always know everything and they are very, very confident staff. But whenever we asking congress to serve as proxies for us and is really important areas to be our eyes and ears, and then they are demonstrating a lack not just a sophistication but a basic knowledge, either they are doing it cynically for political purposes and thinking that they think this unmasking thing israel, or even more troubling, to actually dont know the difference. Thats what i think it starts to bear on the 702 debate because that such a critical component of the protections here here. Alex, whether or not these lawmakers are arriving at the conclusions, their suspicions that would a service is operate of ignorance of how the law works are just opportunistic kind of moment here. This is raising the kind of head spinning possibility of the spectacle of trey gowdy and devin nunes joint arm in arm with the aclu to modify section 702. How do you feel about that . I will say this but im not as deep and politics of it but i will say that one benefit of the kind of rapid change in the last couple of months is to very vividly instill in people or very quickly and so in people and measured distrust of government that if think is essential to democracy. I think it is important for citizens to have this trust necessary to hold their leaders to account, to want to hold their elected and an elected official to count. And i think too much distress can be corrosive especially if not grounded in fact, and i think that is, you know, thats not something that i find beneficial to anyone. But a measure of distress is important. The truth of the matter is that the surveillance authorities that weve enacted since 9 11 91 have been extraordinary surveillance authority. An extreme amount of power with given to the executive to spy on people, including americans, and the people who exercise authorities are not just elected officials that you always trust. Its important to build those tools in a way in ways that are robust enough to withstand the possibility of political views. While i agree with julian that it seems as of the vast majority of problems identified with the implication at 702 and other programs are like as a result of complexity and not the result of bad faith, the question isnt what any particular administration is going to do the authority to its with an x window do, the ones you dont know. Right now we had that one that nobody knows anything cuts of people are so concerned. You sedo to the politics. If which is breaking it down to brass tacks, is the Civil Liberties Committee Going to be okay with finding allies what it would not of natural expected them, even if those allies came to their side to a fund a misunderstanding with the issues are . I think all the committees that act in this very havent opportunistic in their own. When i was at the aclu, the nra supported one of our key nsa lawsuits. We welcome the support of the nra because they had shared fundamental principle on this issue and it made sense to have that alliance. So to the extent people are coming to the prospect of surveillance reform because of this distrust, i think thats a good thing. To the extent that they might be broader consequences for our society anymore corrosive distrust because of the spread of misinformation, i think i can be a real cost and thats not what im blessing. I want to give the last question to jim before move to q a. You are not a politician either, right . And eventually the new director and the director of the nsa and other officials left to go to the hill and make these arguments about why the field reauthorization is important, assumedly goodwill. As your job as in all of this, as the general counsel of the fbi, what is your job in that whole process . To make sure that the fbi receives excellent legal advice thats the main thing. I mean, i think, i guess i would say a couple different things. Obviously 702 is a lot and so theres a heavy legal element to all this, and so i will be heavily involved in that process both within the fbi and within the interagency. At the end of the day, look, ive said this before, director comey has said this many times. You should not trust the government. You should not come the American People should not trust the government. You should not trust the fbi. We have a lot of power and authority that youve given us. Lets keep that strength come youve given to us, but you need to hold us accountable. Hold us accountable for what it is we do. I would say to you on this program there a lot of mechanisms that exist to do exactly that. Our effort i think at the fbi is to try to explain to folks what this Program Means for us, how we use it, and to inform the American People and congress that if you make certain changes, what will happen, and so just, not to go into too long, but if the coverage of the 702 were to be completely repealed, for example, or if there were this warrant requirement thats been talked about impose ever taken on the fbi with respect to the database checks that we do, that would have significant Operational Impacts on us that would make it much more difficult for us to connect the dots, that would increase the risk of something bad happening to the people of the United States. And so i think what congress and the American People have to decide is okay, given that, is the benefit that we would obtain from a Civil Liberties perspective, does that benefit outweigh the potential cost that are difficult for potential cause are difficult to quantify sitting here today. But we can tell you in our judgment as professionals, they would be there. The cost would be there. It would be harder to do our jobs. Its up to congress and the American People to decide whether they want that or not. And our job, my job is to try to explain what did it so that conversation American People can make an informed decision as this debate goes through for the rest of the year. So we have about 20 minutes now for q a, for discussion with all of you. So please raise your hand. I saw your head first and we will come this way. Do we have mics going around . No. Okay, please let us know who you are when you ask the question. [inaudible] we have a mic for you write it. Sorry. Say your question again. Discussion for both attorneys and the fbi on the spill over into domestic issue think that is, you collect for intelligence and the fbi uses it come something that is purely domestic potential Domestic Crime and thats part of the larger question of civil libertarian side. Id like to get some sense, assuming, the seven are too will pass, 70 702 will pass, whate your major priorities for changes . You want to take the first part of that. I find as your question correctly, okay. Sure, okay. [inaudible] without doing what . [inaudible] could we live with it or not . I would say that he would have a negative impact on our ability to protect the American People. I can tell you that flat out. So let me just back up and try to explain this precisely, right . So post 9 11, fbi, connect the dots. One of the things, one of the things we need to do was trying to figure out at a sort of fundamental level how to enable analysts and agents with one database check to check all of our databases. So overtime at the cost of a lot of money and time and effort, we have done that. And so we figured out a way to make our various and sundry databases, more than 120 of them, them, accessible to an analyst or agent by a database check, one database check get you to all that major. We have put into that fisa information including 702 information. So that we dont come if we worried about something and we encounter something we dont miss that dot that might be there. And so, so thats what we do. Thats how we operate a. You have to remember that the fbi operates mainly inside the United States, and we mainly encounter u. S. Persons all the time. We encounter u. S. Persons, people in the United States constantly. Thats different from any of Intelligence Agency to operate mainly outside the u. S. And mainly dealing with nonu. S. Persons. And so when we do a database check, we are probably doing a database check on a u. S. Person. We often cant tell who that is. We dont know the unity we are checking about an emai email as or some other type of identifier, but we check if its probably having to do with a u. S. Person. So if there were to be this warrant requirement, it is unlikely, a work requiring probable cause before we can you do the check, right . Thats what that means. Thats a High Standard of proof. We would not be able to function in that Way International student cases or in our criminal cases because because we do these database checks across all of our lines of work. That would mean that the 702 material, we couldnt access it in the same way it would have to figure out some way to wall off, less and make available to us, increase the risk that something bad could happen. Take the second part of the question. I hope that the solution would be a relatively simple one, technically, less the databases have been designed in such a way that they are inextricable, that you have a separate box to check for warts. I hope that would be a technical solution. More broadly, what you described, the coalition of multiple different source of information, come from different programs and different purposes, thats the Mission Creep i fear most is the idea, the fact that this is programmed the soul to the American People as being primarily about collecting foreign to Foreign Communications base on a technical change in the Way Communications were being routed. That then shifted into being a program in large part about getting one u. S. Person community but dont worry, its still primary about foreign intelligence and terrorism. Now its part of a database use routinely by fbi to check for evidence of any kind of crime in the u. S. , whether significant or not come with a relates to fort intelligence or not. Thats the world i fear. But answer the second part of the question quickly, i think probably the top two items for most Civil Liberties organizations under what we can to speak for them, would be one, to codify the end of data collection. If its true now the nsa itself thinks that about collection is not worth the effort, then should relatively uncontroversial to put an end to it, legislative and not just rely on the willful change, voluntary change. For a u. S. Personal identifier. This is the one thing the fbi is the has been except exempt to that and has been the most frequent user of such queries. The bare minimum so we can actually discuss this the a useful for informed way would be to get the baseline, the frequency with which a u. S. Person is used to query by the fbi and if its nothing i care about how o. Are they pulling up something in response and with what frequency is that information used or relevant to a nonNational Security crime. Thats, i think, baselevel data we need to discuss in a useful or intelligent way. Turns out the number is large the results are different than it is quite small. I suspect its relatively large. In general terms, while agreeing with the specifics, the hard core 702 that not one has a problem with is the idea that you have this problem that was solved by 702 of transiting communication, foreign to foreign communication that pass through the u. S. , because of the way the internet works, looks like oneend u. S. Wire communications. Theyre ultimately foreign to foreign but dont look foreigntoforeign and no one thinks you should node a warrant for foreigntoforeign communication. The solution want to solve that problem. Id like to see whether through frontend restrictions or Backend Solutions is getting closer to a solution to that problem without providing broader access. Just a quick followup on the idea of codifying. The nsa didnt said wasnt useful or werent potential he serious cost. They say given the circumstances in the cost benefit analysis, this was the right decision. It would be entirely possible that there would be changes in technology that would allow compliance to be resolved more easily. Might be changes in legal authorities or might be changes in operational circumstances such that information suddenly becomes more important for the United States to see, and so i think we shouldnt view this as sort of one directional, where a decision is reached and then codified in law and thats an acknowledgment something isnt important should be this ongoing reassessment and i worry about overenterring televisions to stop the world changes and Technology Changes. Wait for the mic. Im from the los angeles times. If its going to be protecting several liberties in this context, is it constructed and devised the right way . Should it be a specialized permanent court, not a collection of rotating federal judges plucked from different parts of the country, and should the judges be appointed specifically by the president and confirmed by the senate for that court so you build up expertise around these issues . Jim, i feel like you should get the first crack at that question. Thats they last thing i want to comment on. Im not going comment on any particular legislation. To me, i think that would be a negative outcome. One of the positive features have real article 3 judges making thing decisions decisiond deciding suspicion in an ordinary, open context we all understand and doing that in a secret context and that rotation is a positive things that makes it more likely the standards and analysis were league in a classified context lore morning like what we see in an open context. I dont think the fisc is a rubber stamp. My complaint is way it is structured onesided situation. Its difficult to meaningfully test programs like this is onesided. Theyre not but a broader point. You look at this decision from april and another very lengthy one from november of 2011, these dont read like ordinary article 3 decisions. Theyremake Like Committee reports and the court is being asked to fashion rules of the roll for the nsa and then theres interchange between government and court, not documented with formal filings. Theres informal changes and looks like the back and forth that happens in committees. Would be good to have most of the ground rules set at a different rule, more open forum and input from a broader set of stakeholders. I think part of the problem here is the fsc was defined to do something it still does, which is evaluate the adequacy of a showing of probable cause and application of a particular wiretap and has taken on a second and more systemic policy Evaluation Task that is probably not that well equipped for i dont in the that when you bear in mind that second function, the idea these are supreme selected by the chief justice of the Supreme Court, we have a mix of republican appointees and democratic appointees who were part of a horse trade is not the setup you would have if from the outset you had thought this would be basically policymaking body, with a kind of weird paradoxical body of secret common law guiding its deliberations. Over to this side of the room. We talked about the black door search loophole and i wanted to get your thoughts on a specific reform that is the metadata warrant reform to the back search loophole so you have the fbi able to search database using u. S. Person query riz queriries but handle have is this a good compromise or pitfalls to that approach. Who are you. Austin mooney. Okay. Who would like to take that. If jim is able, he is i would just comment, its the same answer i gave before, which is that would have a significant negative Operational Impact on our ability to respond quickly to the threats to the threats we have to face today. Youre adding on talking about the terrorism reality the terrorism, the Way International terrorist groups operate has changed significant he over time, especially isis and their methodology of just doing sort of lowtech types of dangerous and harmful attacks round the world, and so what we say is the flash to bang, the time from when someone is radicalized and its much more come pressed than it used to be. So layers upon layers of reviews and break bounds you have to consider the impact on that. Its not up to me to tell you what the law should be a. Im telling you the more larrys and requirements you have, its going to slow is down and make it harder for us to do our job to protect the American People. Just saying that. I think one thing that jims comments reflected and is a little misperception is that a warrant requirement is very easy. Put this standard in and it seems like a simple fix and in the executive branch, very wide sort of body of Legal Compliance grows out of all of those new policies and procedures, and so what in pure legislation can look like, not that onerous of a standard, whatever you actually Start Talking about implementing it in practice youre talking about lots of lawyers, multiple offices, needing to have lots of communications and so what seems like you should be able to resolve in 45 minutes, were talking about days or weeks or sort of beyond. And thats i think thats some of where the anxiety comes from in placing what seems like a reasonable operational compromise, on the actual functioning of the system. I would say its a step in the right direction, but the scheme i would favor would be one where at the outset the government is obligated to avoid the interception of American Communications and if the system is imperfect, which inevitably will be, it should avoid reading the communications without getting a warrant and for either period of time might be a coupleday gap to get a warrant. That seems fairly similar to one proposed by former senator Russ Feingold in an amendments to the fisa act when it was considered. That is closer to the theme i would find acceptable. Think thats a step in the right direction. I think i dont want people wasting time crafting applications and going through the hoops to commit a warrant to then find out the answer is, theres nothing there. Im okay with them at minimum knowing whether there is something responsive so they have some sense of whether it is worth their while to craft a warrant application. I think i could live with that. I know liza is much more down on proposals of the sort but she has a whole team to tell you whoa its a bad idea. One more question. Right in the back. I have a question for mr. Baker. What are the subplot surrounding the 702 debate whether whether or not the Intelligence Community will disclose the number of persons. It does ensnare many u. S. Persons. The former number two at the nsa said he thought an statement would by provided to congress and the public. They thought they would get an estimate early enough to perform debate but still waiting. Its something privacy advocates are pushing for. Does the fbi agree with dose sure or or tried to push back on the effort or resist it. Thank you. Well, first of all, not our job to go counting what it is that nsa has collected. They have to figure that out. Its a significant challenge. This has been said before. We often dont know who these people are that were intercepting the communications of. Just from looking at the outside of a communication and even if you look inside in terms of what people talking about. How do you know theyre a u. S. Person or not . Theyre using a particular email account . Even ip addresses are not always a perfect analogy in determining who is u. S. And who is not a u. S. Person. What one of things we have to grapple with is how much time do you want us to devote to thats and how intrusive do you want us the Intelligence Community dish how intrusive . You have to do in sometimes mean investigations to justify the id of the communicateor, so it becomes very difficult to provide an estimate that you would have confidenty, where the margin of error would be sufficiently low or small, guess you would say, that you would be confident the estimate means anything. So its a challenging problem we have not figure out how to deal with right now. [inaudible question] im saying theres significant challenges to trying to do that effort that we understand. I think theres a theres the question of what presumption you afford to people where you dont know. Theres a risk of producing a number that is misleading in some way. So if we have transparency efforts they should inform the public. The other is a question of whether or not a number metric is actually the thing that most or best informs the American People . Is knowing that number, an imperfect estimate under the best circumstances does that help the American People make a decision, better judgment how they want these programs to be constructed . I think there are other forms of transseurpb si related to process that go to you as an american . How is your information collected, how is it used . What are your how are your rights protected . Getting additional transparency into those types of processes, to me strikes me as a more meaningful form of transparent simple. If wore going to be pushing on the efforts, which i think are laudible, there are other places to put our energy and that these numbers have really become sort of symbolic in ways that are not constructive to the debate. Do you want to respond . I think those numbers are enormously important. Thats why privacy advocates have been pushing for them for a while. It actually is now consistent with the procedures of the nsa to couple with an estimate for congress. The most controversial aspect of 702 has been the incidental collection of u. S. Persons communications and the in the war of terminology the nsa has won by virtue of the fact we use the word incidental in some conne addition, even if not explicit meaning, minimizes the problem and makes it seem as though its incidental when in fact it may be a large number of communications swept in. I think we should care about i care about the procedures in place to protect the u. S. Personal information and also want to know what is the scale of the damage or the potential damage if theres a failure in those layers of security. So, im interested in the number and i dont if the under can be 150 i dont know if we would be hearing the same level of sort of suggestion its irrelevant. I want to thank the audience and the panel, hopefully as this debate unfolds it can be this thoughtful and respectful and engaging. Thank you to the four of you and thank you to the audience. Well take a break and then be back. [inaudible discussion] we have another brief break in the conference coming up in 15 minutes well bring you remarks by thencounsel to former senator Russell Feingold and then wrapup coverage of the congress which be later to view at cspan. Org. A story from reuters this month. The u. S. National Security Agency collected more than 151 million records of americans phone calls last year, even after congress limited its ability to collect bulk phone records. The nsa collected calls to spy on 42 terrorism suspects in 2016 in addition to a handful identified the previous year. The report comes as Congress Faces a decision whether to reauthorize section 702 which permits the nsa to collect foreign intelligence information on nonu. S. Persons outside of the United States, and this scheduled to expire at the end this year. Read more about this at reuters. Com. Until the fisa conference reconvenes well show you a portion of todays washington tournament. This is eric with the new york times, their washington correspondent and has a recent store taking a look at the pharmaceutical industry. Ill show you the headline es drug lobbyists battle cry over prices, blame the others. Could you give us a setup of the story . Theres a lot of debate and a lot of pain thats going on in the United States realtive to the high cost of farm suit al drugs us. Al as deductibled have risen, people have to pay more out of pocket for their drugs they need to treat various conditions. So theres because of theres been a lot of anger that has emerged as a result of that. So theres a fair amount of discussion going on in congress about possibly actually finally doing something to try to understand why drug prices are so high and to perhaps consider price controls to reduce them. So the pharmaceutical industry, the biggest industry in the neutz manufacture, is very intense si working to try to stop legislation that would huri theyre part of the sector. We looked at the lobbyist s convening on capitol hill to protect their bottom lines and how the net effect may be that legislation may not pass that will significantly curb the growth in pharmaceutical drug prices. Led me read you a line from the story how much invest from the it with billions in profit on the line the pharmaceutical and Health Products industry has already spent 78 million on lobby the First Quarter of this year, 14 over last year, the industry pays 1100 lobby is more than two for each member of congress. You an have to go to one of the house or senate os buildings and walk around the halls and look at the name tags and the names of the companies peoplee work for as they walk through the halls of congress. More likely than not youll run into a pharmaceutical lobbyistst or shrub they have flown in. Theyre so many of them on he hill, meeting with individual staffers and lawmakers and theyre all giving different versions of reality to the staffer ands the lawmakers and basically going like this, pointing at each other, that the pharmacy benefit managers are pointing at the pharmacists, the pharmacist point at the family benefit managers, the brand point the generics and generics point at the brand and they blame each other for the huge increase in cost of pharmaceutical drugs and avoid having legislation passed that will go after their piece of the pie, blaming the other party. Pe errings it the middle man . The industry itself as the price one pays for drugs . E i think its a combination of all of those things, and that the real to go the problemwe perhaps that we have seen is the single biggest factor in theal cost of pharmaceutical drippings are the brans drugs. They represent a small number of drugs written but theyre the dominant cost factors. Theyre much more expensive than generic drugs and thats the fattest part of the pie, and they have the most lobbyist ands spend me most in Campaign Contributions and have the most protection. Os so far the legislation has had the most movement on the hillse will not good after the branded. Going after other chunks of the industry. And the reason that you can explain that the brands have an insurance policy through their lobbying and Campaign Contributions. Te well continue with our conversation. If you want to ask questions about the idea of the pharmaceutical industry lobbying and the ultimate tropic of prices, cause these numbers you can tweet us thoughtsthe thoughts, krspawj. Is there legislation that would take a whack at prices. Getting anything passed in congress is extremely hard right now, given President Trumps various challenges and the fact that the democrats in the senate still at least as long as the rules stay the way they are can stop legislation from moving. Theres couple of things that have to happen this year that o means its very like lip that at least some legislation will pass. That is what is called user identifies that fund the fda to approve both generic and branded drugs. The agreements that funds the fda and the user fee expire andn the fda can no longer approve drugs unless they receive the fees from the companies. So the program must beye reauthorized by congress. That creates a vehicle for someone to insert something into the legislation to go after prices. Its a relevant amendment to the user fee legislation. One legislation has to do with the brandeds and one generics. So that is likely something that will be incertained in a user fee bill that will address pharmaceutical drug prices. What will be uncertained is clune and the lobbies are feeing on who is going to be hit. There is philosophical badle in congress before the prices . The typical move that congress does is it says, letss study it. Lets commission some agency to do a study to see how can be lower prices . And thats essentially what the one piece of legislation is proposing that something called it was a program that was passed to try to create more patient safety, but ultimately its been a way for brand idaho protect their market share, and one piece of legislation that is considered popular that would study the problems when theres all kind of evidence that its being abused be plannedded companies to protect their industry shares. The most likely thing is another study and push it down the road. Even the president weighed in, early in his administration, shortly after he took offers when he met with Pharmaceutical Company ceos to talk about the issue. Well show you bit from january. The competition, the key to lower drug prices. Anything that make is harder for smaller and younger toys to take the risk to bring products to a competitive market. Including price fixing by the biggest dog in the market. Pp medicare. Compe we increase competition and bidding wars into the program. The president citing this idea of competition. Go ahead. Its interesting to see he is carefully reading text that was provided to him there, which you dont see trump doing too often. Makes you wonder again, this is an industry he has to be careful what he says. Theyre such a big player on the hill. Sitting around with the ceos from the industry. You hear sort of coming from the Trump Administration two things. One is theyre talking to much money from the public, theyre monopolistic and we need to go after them, and then on the other hand they youre not sure how aggressively theyll go pl after the issue players in a private meeting after the reports walk out of the roosevelt unclear how aggressive the health and Human Services agency which overseas the fda and the white house will be when it comes to pharmaceutical price issues. Its unclear. He has said some things are strong and suggest he is in favor of taking aggressive steps we have not seen the action. Eric lipton, our guest. Well start with tim in michigan. Democratic line. E. Youre on with guest. Caller yes, cspan. Ou i was just wondering, do democrats or republicans get more money from the lobbying efforts . Thats my question. And ill take your answer off the air. Guest republicans get the bulk of the funds from the pharmaceutical industry, and in that is not surprising because republicans control the house and senate and the money goes the people who have power. The person who is the chairman of the subcommittee, the chairman of the committee, the people that control the agenda and what moves on to the floor. E its not surprising that this industry gives more money to the republicans, and they have some very important friends who for example, under the Obama Administration there was row pose sal to do an experiment with Medicare Part b, which spends billions of dollars on pharmaceutical drugs every year, and the leader of the effort to try to kill that, to quash it, representative shimkus of illinois. Its someone that then we saw the pharmaceutical industry was having a fundraiser for, called a pharma breakfast they held, where the Pharma Industries went and wrote checks. So, they give money to people who have power, and then the people who have power they say in shimkus case he says the took the position because theres a Cancer Center in his district that would be closed because of the experiment. The Obama Administration was under so much pressure from democrats and republicans that killed this experiment that would have reduced the compensation for the drug companies. Then the Obama Administration at the end of its tenure withdrew the proposal. An effort to actually try to do something about drug prices. The shorter answer is that the bulk of the money goes to republicans but going to members of both liza is codirector of the liberty and National Security program at the Brennan Center for justice. Prior to that she served as counsel to u. S. Senator Russ Feingold, who was the chairman of the senates subcommittee on the constitution. On the judiciary committee. She handled liberty and National Security matters. Focus on government secrecy and privacy rights, and joy getting liza to get here today to complete or program. Also worked as a Trial Attorney in the federal Programs Branch of the Civil Division of the department of justice, and her area of expertise is what she is about to speak on, liberty National Security, the tension between privacy and National Security profiling, transparency, accountability, checks and balances, and detainee policy. One quick note. When liza finishes this session well offer you chance to go upstairs to the rooftop. Its a nice day and we have a little reception up there in the sunshine and spring weather. So, please join me in welcoming liza to the podium. [applause] thank you. Thank you for inviting me and thank you to you for coming and staying. I mean, this section 702, im well aware, can be a very dry, very technical subject, and i salute you all for recognizing its important and for taking the time to understand the core issues beneath the complicities. I want to tell a story from. The 1940s, the end of world war ii. The National Security city was in the infancy and very few laws or really even internal regulations saying what the intelligence agencies could and couldnt do. The fbi operated without any legislative charter and it was under pretty much the complete control of j. Edgar hooverrer who had a sort of tire tyranny. Fear of communism was everywhere and just as great as our fear of terrorism item. The fbi had a campaign of widespread domestic surveillance. The cia and the nsa joined in the act citing the possibility of foreign involvement in domestic movements, even though that was never proven. Gradually over a period of decades, the specter of foreign communist influence wag the basis, some say excuse for infiltration, surveillance and system yipping harassment of a political movements with a particular target on civil rights and antiwar protestes. Leaders were able to use intelligence agencies unchecked political powers to dig up dirt on opponents, pesky journalists and personal enemies and the like many of us are too young to remember that time even if we did live through some of it. Its difficult to imagine what it would be like to be afraid to speak your mind about politics or about politicians, although i do think that Muslim Americans are getting a taste of that. Most people back that knew someone who lost their job or who had suddenly been mysteriously audited by the irs or whose neighbors shunned them after a visit from the fbi. In the 1970s some of the worst abuses of the intelligence agencies tart stowed come to light and the Senate Appointed the Church Committee to investigate. What they found is the stuff of legends. The cia, a special unit, collected information on 7,000 americans and 6,000 groups engaged in political, a activism. The nsa copied and analyzed 150 tell grandmothers going in and out of the u. S. Each point which seems totally quaint to today. The fbi bugged Martin Luther king, Martin Luther king, jr. S Hotel Rooms in order to get evidence of Extramarital Affairs chit then used to try blackmail him into committing suicide. Congress and the department of justice responded to the Church Committees revelations by putting in place a number of laws and policies that established a kind of golden rule. And that rule was that intelligence and Law Enforcement agencies could not collect information about americans unless they had individualized factbased suspicion of illegal activity. Depending on how intrusive the surveillance was, might have to get a warrant or a subpoena but at a member there had to be reasonable suspicion of wrongdoing the foreign Intelligence Surveillance act is one of these laws. If the got, acting inside the United States, wanted to collect communications for foreign intelligence purposes, and if there was an american on one end, the government had to apply to a special court. Itch was foreigntoforeign they didnt. This was a appreciation for americans. If an american was on one ended that had to go to the fisa court and show probable cause the target was a foreign power or agent andif the american was a target that involved some level of criminal activity based on definites in the statute, the idea behind the laws was that if government officials had to point to an objective indication of wrongdoing it would be harderrer in tome fall been on racial bias, political grudges or other improper motives and it basically worked. It wasnt perfect but they became the exception rather than the rule and stayed that way for almost decade, and then came 9 11 and just as quickly as the rule was put into place, it was tosses aside. The individualized showing required to get Business Record about americans and foreign intelligence cases was replaced by bulk collection. The department of justice guidelines for domestic investigations created a new category of Investigation Called an assessment meaning theres no factbased reason to suspect wrong doing. The policies for searches at the borders were changed so that Customs Officials could search the contents of laptops and other Electronic Devices without reasonable suspicion which was required before. Some kind of elicit activity, and there were section 702. So, let me just stipulate that this response to the 9 11 attacks was entirely understandable, and i mean that. When something so devastating has happened, the natural instinct is to remove any barrier on the governments ability to do anything that conceivably could have but in this instance, at least that instance was misguided. The 9 11 Commission Found fault with many things that the intelligence agencies were doing, and issued a slew of recommendations, but it never recommended changing the laws to remove the requirement of suspicion for surveillance, to create a regime of suspiciousless surveillance, never recommended and thats because theres absolutely no requirement that doing that actually helps in any we to make us safer and ill circle back tot. That getting back to 702. We have heard about the changes made to the law. So ill briefly reiterate what i thinking probably the toast moe e most fundamental. First, removed the requirement of case by case judicial approval when an american is on wound end of the communication. These days the government is quite dismisssive, even sarcastic about the time they could be required to get a court order to collect on a foreign target, but in fact thats exactly what the law requires from 1978 up until 2007. Second, perhaps even hormones, section 702 expanded the permissible pool of targets and have not heart that much to from acting to any foreigner overseas, no question whether you have to get a warrant or probable cause, its who the people are, and at this point theres no requirement that the foreign target pose any threat to the United States, have any information about a threat to the United States oar be suspected of any wrongdoing. Not only does this allow the government to target innocent private citizens overseas, it also invariably increases dramatically the number of americans whose communications are subject to being collected, and also increase ted likelihood those americans themselves are ordinary lawabiding citizens. So it turns surveillance supposed be targeted at foreign threads into a potential dragnet. The government still has to certify that acquiring foreign intelligence is one goal, but not necessarily the main one. It can be secondary, but that term, as was alluded to earlier, is broad enough to encompass conversations about current events. I have had conversations with my stepmother, a foreign non who livers in switzerland about trumps Foreign Policy that the nsa could legally collect under section 702. Now to be very clear, im talking about what the law allows. In practice the government probably does have some rationale for choosing targets beyond the mere fact theyre foreigners. I doubt my stepmother is a target of surveillance but i also doubt that every target of surveillance is someone who poses a threat to the just or has information about a threat. The statute opportunity require that. And its courting disaster to rely on any administrations commitment to selfrestraint or to hope that the fisa court will lay on additional requirements beyond those that the statute actually requires. I want to address the argue. We heard today that the changes made to section 702 were necessary to modernize fisa. Theres a creation myth here. The idea is that congress intended to regulate surveillance only for wholly domestic conversations, not international ones, but for some reason didnt say so, and instead used the method of communication, wire versus radio, as a proxy. Because methodses of communication have changed as more International Communications traveling by wire, which i true, congressional intent is being thwarted. The problem is that no one has ever managed to explain why congress would have engaged in this very specific parsing of technologies if it simply wanted to differentiate between international and Domestic Communications. Would been a much simpler law to write. But flow opponents gloss over the fact that a significant portion of International Communications did travel by wire in 1978 between a third to a half of communications. So this notion that they used to all be radio and now theyre all require, its just not true. So the modernization theory sounds good but doesnt hold up, at least cant be the full explanation. Theres a Different Technology based argument and they were kind of conflated, a different argument that julian raid that makes sense, and thats the argument that certain foreigntoForeign Communications not covered by fisa in 1978 now transit through the nuss ways that bring them within fisa scope and this is true for one category of communications, and thats foreigntoforeign emails stored on u. S. Soil. But the change is made by section 702 obviously went far beyond what would be necessary, as julian was saying to address that discrete challenges. Thaw. The reach of government surveillance 1978 was substantially constrainted Technology Changes and on the governments ability to acquire, store and process all of these communications. Of the past couple of decades these constraints have billion neglectable, and the government has capacity to tap into communications which have exploded, and to store them in the peta bytes and to this is truly the golden age of surveillance and theres another aspect of this. In the pact decades International Communication was relatively rare because it was difficult and expensive. Today it is cheap, easy, sometimes free, and its necessary. A show of hands who has commune kateed with a foreigner overseas a few times in the last year . I think thats everybody. So, what all this International Communication means is the amount of information about americans that the nsa intercepts even when targeted foreigners overseas has increased dramatically, and yet instead of increasing american safeguards for privacy, the law has gone in the opposite direction. The vastly expanded scope of 702 to any foreigner overseas has turned fisa interest a tool for mass surveillance. In two 11, according to the fisa court the nsa was collecting 250 Million Communications a year under section 702. That number is almost certainly higher today if only because the number of targets has risen steadily each year and also we know, the government is generally allowed to keep these communications for five years. So that means at any given time theres well over a billion well over a billion communications that are stored in government databases from 702. How many of those communications have an american on one end of system wouldnt we like to know. This is the question that lawmakers have been asking the nsa for years. The neaces arm response is, we dent know. Too time consuming and expensive to find out and violate americans privacy to find out. Not quite as crazy as i sounded. My First Response is, what . For some kinds of communications the government would have to do some digging to figure out if theres an american on one end, but theres another way to do this. For upstream collection the government is required to try to filter out wholy Domestic Communications on the front end. The way it does that through a combination of using the ip address and certain other techniques it has, and it says it can reliably screen out the vast majority of Domestic Communications. If that technique is sufficient to identify who the u. S. Person for purposes of complying with the constitutional requirements is sufficient for purposes of giving us an estimate how Many Americanss communications are picked up, and in fact, under president obama, the director of National Intelligence finally agreed that they would do this try to do this. They came up with some methodologies and briefed lawmakers and Civil Liberties advocateds advocateds and ready do toe go and then mysteriously we have heard nothing about and it then start hearing from spokes porns for the government, its difficult, privacy concerns and now its out of our grasp. Im going to state the obvious here. The government cant have it both ways. Officials cant simultaneously reassure us that section 702s effect on americans privacy is minimal while in the same breast same breadth saying they have no idea no way to figure it out, how Many Americans communications are being swept up. In the absence of an official estimate we are left to draw our own concludes from the publicly available information. The Washington Post reviewed a sample of section 702 communications from edward snowedden and half of those contain some u. S. Person information. We have no way of knowing if thats representative but if you assume it is that means 125 Million Communications a year would have some u. S. Persons information in that and at any given time half a billion such communications in the government databases. Again, that could be wildly off but a in the absence of official data thats the best we can do. Even if there was a strictest possible minimization requirements on the back end this mass collection and storing of Americans Communications is extremely problematic for several reasons. First, theres the potential for abuse and disregarding the limits on the handle offering the data and misuse it for political or personal purposes. I agree there has been very little evidence of that to date and i think its true that the laws in the institutions put in place after the Church Committee changed the culture within these agencies. In general, in a very positive way. People in the agencies sometimes talk about a culture of compliance. But the laws and institutions that led to this cultural shift are the same ones steadily eroded since 9 11 and doesnt need a clairvoyant to think the culture of the agencied might change. We have seen much evidence of potential abuse we have seed a remarkable pattern of failures or the party of agencies to comply with fisa court or thes. Necessary, people mistakes but im not talking about a handful of trivial incidents. Im talk about significant and sustained violations of Court Ordered limits on collection, retention, querying and sharing. In many cases these violations went undetected for years, and then unreported for even longer. During which time government lawyers were misrepresenting the nsas activities or the agencys activities to the fisa court and the most represent example is the april 26th opinion of this year that was discussed earlier. These violations are ostensibly inadvertent but an inadvertent privacy violation is stale privacy vie someplace the history of repeat violations suggestion one of two things mulls be happening. Either the agency is not trying that hard to comply, and i dont want to reach that conclusion or theyre trying very hard put they cant. Theyre incapable of avoiding serious repeated violations. Maybe because the system has become so large and so technology include complex. Either explanation gives me very little reassurance when the government is asking us to trust it with tens, maybe hundreds of millions of our communications. That lead know another concern. I would love to think the Intelligence Community does a better offof ensuring data then the omb but wikileaks exposed the cia tactics and communications are a very attractive target for hackers nice clouds potentially valuable foreign intelligence information and you seek how to the russian government or Chinese Government might be interested in this data. Ive been talk about americans privacy and we also need to consider the effects of allow thing government to target any foreigner overseas. Foreigner have rights to privacy acknowledged under international law, including treaty to which the United States is a party and the mass collection of foreigners people peoples and phone calls is very likely a violation of those international obligations. At least that is the consensus position of courts and legal authorities in europe as a direct result the agreements that u. S. Technology companies hey reached with counterparts in europe in order to do business over seas have been struck done and theyre in jeopardy. So whether its one that was struck down in 2015, another that replaced it. That one may not survive if section 702 is not amendment when amended when its reauthorized. More than 30 idaho including facebook, going and microsoft, signed a letter urging significant reforms of section 702. For all of these reasons, strong backend protections cant cure the problem of overly broad collection on the front end. Conversely, narrowing collection at the front end isnt going to eliminate need for strongend protection. Any kind of surveillance youll end up with incidental collection, collecting innocence conversations as a result of surveillance and minimizessation is required as far as constitutional and statutory requirement. The minimization in the 702 context is fairly simple. Interception of Americans Communications is inevitable but because of such interception ordinarily would require a warrant or an individual fisa order, incidentally collected u. S. Person information should not be kept or used or shared subject to narrow exceptions. The it is left to the agencies and the agencys minimization procedures contain numerous exceptions and have grown more and more permissive over the year as Mission Creep has set in. Trying to decide how much to tell how interested in knowing about the minimize situation procedures . Show of hand. Not many hands but im going ahead anyway. The nsa can share the raw data with the cia, the fbi, now also the National Counterterrorism center as of recently. All agencies generally allowed to keep the raw data, including u. S. Persons raw data, for five years after the certification requires. So right there they can keep the u. S. Persons data five years and can seek extension and the fiveyear limit doesnt apply if the communications are encrypted, which is increasing the case for mime using order mobile devices. If it is determined it contains no evidence of the crime the eight is supposed to purge the data but the privacy and Civil Liberties Oversight Board found it doesnt because it can almost always posit a reason why some day it may be relevant so they basically keep it all and the fbi and cia decent have to requirement to purge undetection, if the fbi reviews information concerning a just personle ands to no conclusion whether it is foreign intelligence just looking at the fiveyear limitation evaporates evaporates and replaced with a longer period of time that is classified. So thats enough of that. Thats really the weedy stuff. But it goes show that the words we talk about, targeting, minimization, incidental, dont mean what people orderly think of when they hear this words. Its not minimizing the retention of u. S. Person information is putting restrictions on it but not minimizing by any definition. The most disturbing fact is they allow the cia andfish fbi to search through the data with express goal of finding and reviewing Americans Communications. If the government wants to obtain an americans emails for cone calls in a foreign intelligence investigation, it has to go to the fisa court and show probable cause that the american is a foreign power or an agent of a foreign power. Government wants to obtain an americans phone calls or emails in a Law Enforcement investigation, it has to go and get a warrant. To ensure that section 702 is not used to avoid these requirements the statute contains a prohibit base on reverse targeting. Before conducting section 702 surveillance the government has to certain its interest is only the foreign target and does not expand to target any particular known american. That is what makes it legal in the beginning, that certification. Only interested in the foreigners, not the americans, not any particular nobody americans and yet the moment that dat is in their hand tata is in data is in their hands they can sort through it, the very people in whom the government just disclaimed any interest, and the fbi can even search for those communications to use in ordinary criminal cases that have nothing to do with foreign intelligence or with National Security. Ive said many times, say it again, a bait and switch that is totally inconsistent with the spirit if not the letter of the reverse targeting prohibittation and it creates a dangerous end run around the Fourth Amendment. Hear intelligence officials defend backdoor information that once it is collected they can use it for any purpose. The very definition of minimization is you cant use it for any purpose. Thats what minimization means and thats not only a statutory requirement, thats a constitutional requirement as well and the fisa court has plainly said and i quote the procedures regarding detention, use and dissemination bear under the reasonableness. So, what is the password . Listening to me speck you would think i am completely against section 702 and i want it to lapse but everything if a been talking about is outside the core of what section 702 was supposed to do, and what it was supposed to do was to allow the government go after foreign threats, suspected terrorists and not have to get a warrant to do it. I think there are several changes should be made to section 702. Two major ones i want to discuss today, fairly quickly. Know im standing between you and cocktails. But none of those changes go to the heart of section 702, which is warrant collection on suspected foreign threats. I believe that can stay in place. And we can still address the serious most serious israel liberties issues which arise from all of this sort of ways in which the law is much broader thanked ever had to be. So in the reverse order the back door loophole should be shut. The government to have to obtain a warrant in criminal investigations, and have to get a fisa order to Search Communications in foreign intelligence investigations, by the way there is a precedent for requiring the government to go get a warrant for information it has already acquired. In criminal cases where the government has made electronic copies of computers or iphones and has seized those and gotten a warrant to search them, it hays than been required by the warrants warrants to get a second warrant if itself wants to do a later search. This is not unprecedented. As for the proposal to allow the government search only for metadata and then if something comes up, have to then get a warrant to look at the content, we have a process for the government to search for americans metadata, section 215. The fisa court, show relevance and get a court order to search for metadata. So im not on board they can do that without a process. In addition to closing the back door search loophole the scope should be narrowed and this is something i also agree that the end of collection should be codified. That was discussed about earlier. I want to talk about the government should have to have a reasonable belief not talking about a warrant or probable cause standard have a reasonable belief that the target is a foreign power or agent of foreign power or poses a threat or has an information about a threat to the United States. There is no reason to think that this would make section 702 less effective. In every okay that the government has publicly cited, as evidence of section 702s importance the initial surveillance targeted a suspected terrorist, someone the government already knew or believed to have terrorist ties. And government officials have discussed the larger nonpublic pool of Success Stories that describe them them say way to matt olson testified last year that the typical section 702 Success Story has involved what he calles surveillance targeting a specific foreign individual overseas based on the governments reasonable belief the vivid was involved with terrorist activities. These cases do not support the idea that the government needs the authority to target any foreigner overseas and collect all of his communications with americans. So the good news is we can do this. We can have a foreign Intelligence Surveillance law that gives the government broad latitude to go after foreign threats without getting a warrant and can protect the rights of innocent americans and foreigners to restrict requirements and a sensible pool and protect the requirement for a warrant to listen to phone calls or read emails. Intelligence Officials Say we shouldnt do that and any additional limitations on authority to conduct surveillance wisdom make it less safe. The same arrange. When the congress was considering the church recommendation, and that brings us full circle because the alternative to moving forward with reforms is to move backward to a time when americans were afraid of their own government. At some time in the future, and perhaps the not too distant future, the selfrestraint and the selfpolicing and the culture of compliance that has kept the government from taking full advantage of the tremendous legal license contained in section 702 will fail unless we act. Thanks. [applause] you could pull up chats and there is an american at the other end. Under your system you could read that and theres something on the american that is suspicious, wouldnt that, by definition, give you enough to get a warrant . So you are raising another set of reforms which i didnt talk about, but in addition to getting a warrant and closing the back door, another set of important reforms is use limitation and thats when you can use information that you actually been to as youre looking through. The idea is this is information you wouldnt have had unless you had certified, you got a warrant for that reason. Then the question becomes, how much use should the government have of information . I want to be very clear. I think usually when this happens, i think the bigger threat is the backdoor search because i dont get that often that accidentally the government bumps into a random crime being committed by an american. Is a backdoor search just throwing the name of american into a search query as opposed to already having some information from having queried the foreign target . Its the difference between going looking for that information versus stumbling across it. You can imagine if you had a warrant at the frontend, which you dont, but wha lets say you did, then the analogy would be your searching a house and you find a murder weapon. Its the difference between bitterly tripping over a bag of drugs versus finding the murder weapon and saying you know, i think ill go look for some drugs, which you cant do. I will stop after this. In the snowden movie, you see. You see the spiderweb of all of these connections. Is the abuse we are worried about that there is a targeting of a foreigner thought to be a broad, and at what point is the american wrongfully searched in that process . Is it that information has already been pulled up by the nsa about this foreign target, or is it just that theres information about this foreign target thats in a database blind and you throw the americans name in as a search item. Those are two different concerns. The theoretically distinguishable but they are both concerns. There was mention earlier of surprising potential allies. Have you talked to any of these people who have previously supported these surveillance are authorities and now theres questions about it and you think theyre open to reforms that arent politically motivated . Without naming names, i think the wildcard are people who are very strong defenders of section 702 such as devon nunez who has now said things that seemed critical of it but then he was walking a line where he wasnt criticizing the law but criticizing how it was used. I think there are a lot of people who republicans, and democrats, who voted for this law without really understanding that well what wasnt it. I dont want them. I dont understand how they stay on top of everything they have to stand top of. I think its a big problem, but this is complicated under the best of circumstances pretty think they listen to people like jim baker who came in and said we need this authority and jim clearly believes that and is acting in good faith and they say we trust you and they granted authority and they didnt really know what was involved in it. I think as some of the details are coming out, and as theyre focusing more on it, i think there will be room for some of those people to say, not lets get rid of 702, not this is a travesty or we need a warrant anytime we target a foreigner but can we trim some of the fat which is where most of the risks are. Do we really need the ability to get any foreigner overseas. Do we really, could we be a little more specific what we meant about minimization so the stuff isnt held onto for five years or longer. I think we might see that level of engagement for some people, and that is welcome. They keep bringing up the fact, you kept mentioning that the law basically says if you are a foreigner overseas we can target you willynilly. We dont have to have a reason , but as far as i understand it, there is a third component to that and thats the foreign intelligence value so its not just that your foreigner overseas, but there is a third component which is the reason that we are targeting you yes, i did mention that, and what i said about that is it can be a first primary reason or secondary reason. But i dont know thats true. There are three things you have to meet to target somebody. The court has said that is true. Thats not my reading of it, thats actually what the law says that a significant purpose has to be the collection of foreign intelligence. In the compliance world, those are three things that are double checked and triple checked and quadruple checked to make sure it exists. Absolutely. Foreign intelligence value is critical to making sure a target is a legitimate target before you can collect that. Assuming that happens, and thats true, when its not just willynilly random mass collection of anyone overseas, if there is incidental collection, and that person really is a legitimate target because there is some derogatory information leading us to think that person could do us harm in some way, and that incidental collection happens to be a u. S. Person or one of our allies, a canadian citizen or whatever that is in close contact with someone we suspect is a terrorist, wouldnt you want to know that. Wouldnt you want the fbi to know that . Sure. Nothing you said, you said if we have information that this person wants to do us harm. And i want to know it quickly. I dont want them to wait a week to get a warrant for the information. Im not disagreeing with you. But what youre calling that is the backdoor loophole. No, thats when you say i want to read the communication of this american, of this guy, i think this guy might be up to something salmon to plug it into my database and read something. Youve already collected the data on for a foreign intelligence purpose. They can put that identifier into the database when theyre doing a routine assessment in a criminal investigation. They can actually read an americans email, listen to their phone call when they dont even have a factual basis to suspect wrongdoing let alone a foreign intelligence purpose. That is in the Oversight Board report. Get it, its not a conclusion im drawing, but go back to what you said, the limitation is not that much of a limitation because of the definition. Its relevant to the conduct of the United States affairs. That increases my phone calls to my stepmother about trumps foreignpolicy. Im not for paranoid but it fit fits. If they were doing something so bad they wouldnt even be on the radar. We talked about the four the nafta. Is in nafta foreignpolicy. I wouldnt know. Im worried about what the law allows, not what is done right now, but what might be done a month from the now or a year from now and i think we can narrow the law that allows what you are talking about which is going after who pose harm to the United States in doing it without a warrant without reading american phone calls or email or having these definitions that would in fact allow conversations of my stepmother to be swept up. Thank you for the talk. Just for disclosure, im in the camp that believes this is an Important Program but continuing reform and oversight to keep remaining vigilant so i appreciate what youre doing. My question is about the more vulnerable americans may think we often forget this. I have friends were Muslim Americans who ended up on the nofly list for no reason other than the fact they have relatives in pakistan. This was during the immediate post 911 paranoia. We forget this. I have chosen a path where i am more in the public eye. Im in diplomatic circles and i assume my stuff is swept up by someone, it might be the russians and the nsa steals it or, i have to trust that the oversight, currently i do, but i am worried about erosion. Im also a rich white guy from boston whose well at welleducated so lets be honest with ourselves, no one is coming for me. Im fine and im lucky in the society. Not everyone is that lucky. Can i tell you a story. People forget how we are fre free. They are targeted right now by fellow citizens. So i write a lot about very critical things about this Current Administration and i recently traveled internationally and it occurred to me on the way back that i might one of those people whose laptops are cell phones got churched and when it wasnt, i was a little disappointed. I thought how many oped so i have to write, but i chose that public speaking, i chose that and i chose to speak out about certain issues that i know could potentially, who are probably very worried, and who didnt ask for any of this, and one of the harms of over collection, one of the reasons why dont agree if collecting it all and then having stringent, just the fact that collection and potential that could be abused creates immediate harm which is an immeasurable Chilling Effect on the willingness of certain vulnerable populations willingness to speak freely, and it has been, in the wake above disclosures, there was a 5 drop that google measured in people being willing to type those things into google. Not other sensitive words like abortion or Something Like that, but just those kind of things. Right there, thats across the population. The Muslim Americans, i dont think the response to the 702 has been measured specifically, but the response to the nypd surveillance, theres been some studies on that. Its really dramatic stuff in terms of declines in mosque attendance and things that should hit us just as deeply, things we should be just as afraid of as we are of security incidents because this is who we are as a people. Can we talk to each other . Can we air our political differences without being afraid that it might be heard the wrong way by the nsa. Thank you for raising. [applause] we are about to wrap up but before we go upstairs we are having a reception on the roof. We welcome everyone to attend. Please take your things with you because you will not be able to have return access into the building. Please take it with you. There will be people escorting you, we only have one elevator to the roof, and with that, i just want to thank john, matt olson, ben, susan hennessey, Julian Sanchez, and liza for a fantastic conference. Finally, it will be available if you want to rewatch this or if you have any questions you want to access later it will be on the website and ben was able to negotiate his our being on a podcast as well. Thank you everyone. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] this entire conversation including the Civil Liberties this is part of book expo today in new york city. Live coverage begins at 6 00 p. M. Eastern here on cspan2. Returning to a portion of the conference i just wrapped up, the former director of the Counterterrorism Center. One thing about 702 is that its not an onoff switch
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