Because a truism in Information Technology, which goes all the way back to the ibm main frames and bell labs worked with the government in world war ii is the first user of Information Technology and most advanced user of Information Technology is going to be the defense establishment in the u. S. Government. And i use defense in the broadest term. Im talking about anything associated with defense. So theyre first guys in, and when we build qwest, or as we went public with what we were building, before we had laid more than a thousand miles of cable, we did 26,000 in the u. S. We were already engaged or approached to participate. So what was the you were asked to chair this committee called the Network Reliability and interoperability council. Explain what that really was trying to accomplish. There was really two federal advisory committees of substance for the Technology Industry. The Technology Industry included not just the telecoms, it included microsoft and ciscos the people you know there, and a lot of the defense players. So you had the lockheed martins, northrop grummans, all the systems interrelated to what we were building, depending who we were building it for. The long and short of it was there was a concern prior to 9 11, which was realized at 9 11, you remember, when southern manhattan went out of service, all of the country went out of service for your cell phones. There was a question that said, in case of disaster recovery, what are the scenarios that could knock out command and control, you knock out command and control, you knock out everything youre using as a collateral consequence. And how would we recover . And so because of antitrust concerns, i couldnt talk with at t or mci or sprint directly. Or the bells in certain regards. So advisory committees were formed under the National Security umbrella, and the fcc played on that. Thats the Network Reliability committee. What we were trying to figure out in those days, given the existing law, how could we quickly respond to back each other up, what could be Critical Infrastructure problems, at what layer in the hierarchy would you be attacked . I should point out, it is interesting, i was liz listening to some of the Technology People saying we have to be able to back each other up, we were worried about this in the late 90s. America has been in the cyberwar sense the birth of the internet. We got better and smarter and faster than everybody else. These were problems this 1996 and 1997 when you were still using bulky laptops if you had them, okay. So the intelligence community, defense department, appropriately, to defend the nation, was engaged in this stuff. And these committees were there to deal with those questions because the assets are owned in this country in private hands, not by the government. So for them to do their job, it is necessary for us to be engaged. So basically at the very beginning of all of this there had to be this very close nexus between government and the telecommunications industry. Absolutely. And we did a lot of what we call special construction for certain customers, because even the National Infrastructure by itself wasnt going to look at all of the disaster scenarios appropriately. So at some point, you were asked to come on to the National Security telecommunications advisory committee. Why dont you tell us how did that come about. How did you find out they wanted you for this. Well, you know, i had to tell you, it is interesting when you do a Startup Company and you come out of a big company like at t. Just as a joke, first time i walked into Newark Airport and had to get on a commercial flight after flying corporate jets, i couldnt figure out how to maneuver myself. You walk into a Small Company and you do all this stuff yourself, and, you know, you try to build the company and you try to build infrastructure, try to hire people, and then you have the government come in with overlays, it is a real challenge. And so you do it from the front end. I think somebody said it earlier, you try to design reliability and into the product at the front end and thats what we were trying to do. From the beginning, we didnt have more than, like i said, less than a thousand miles of cable wire was laying down on the ground when i got visited by a threestar general in my office in denver with an unannounced visit. That doesnt usually happen. I never met a threestar general, fortunately. I had a high number in vietnam war and beat the draft, that was the best thing that ever happened to me. The bottom line is when a general shows up unannounced and wants to meet you, you generally say yes. That is what i did. I had this meeting and then i got a top secret security clearance from that point in 1998 to the point in early 2000, we got deeply embedded and all im allowed to say, i should point out, 14 years later, i was reminded three months ago that i still am guided by the espionage act in terms of what i can say and even who holds my clearance back 14 years ago remains a classified act today. And which im going to talk about secrecy in a minute. I got involved youre not going to tell us who the general was. I can tell you the general. I would like to say because they would kill me, but they did worse than that, so the bottom line is you cant disclose and it puts you in a very tough position. For the skeptics out there, who were watching on the web or anywhere else, i think a lot of people would say, you know this guy is blowing smoke. He got convicted. Hes a felon. Dont believe anything he has to say. Thats the position of justice department. It just doesnt foot with the classified with the declassified transcripts of 17 months in the cpa court. But i was working we were working, and by 2000, we were deeply embedded in what im allowed to say is four clandestine security agencies and as a result of that, dick clark recommended that i jump ahead of the queue and become chairman of nstack. Which footed nicely with the Network Reliability. Thats that National Security telecommunications thats really the more Important Committee if i was to say it in retrospect. You dont want to say no. If the government approaches you, first of all, if youre going to make money for your company, fiduciary responsibility, look at the opportunity. But as a i hate to use the term patriotism, because i think it is a hollow term today, but, you know if the government comes and says we need you guys to work on something, want to clear you, want to tell you why, here is what we want to do and well give you money, what are you going to say . I dont want to be bothered . You say yes. Now today if you say no to them there is other consequences. Right. So at some point you i said yes. You said yes. I got appointed to the committee, became vice chairman, became the chair. Okay. So you want to tell us about this february 27, 2001 meeting . Well, you know, i think there say lot of serendipity in life that if had you just walked into the other room instead of this room, your life would have been totally different. Just to preface the february 27th meeting, at college, when i was interviewing, when i was going to graduate, i thought i was going to proctor and gamble interview and walked into the wrong interview it was at t long lines. Thats how i got into telecom. Fast forward 27 years, i get a phone call on february 26th from my guy that runs the washington classified stuff and said to me in code words, there is something interesting, i need your help. That means get on a plane, come to washington. I land at reagan national. We run over to the pentagon for a nonclassified meeting. And then we drive up to baltimore washington turnpike and walk into a qwest skiff. A skiff is one of those rooms that if you the cone of silence with maxwell smart, where they cant eavesdrop. We go into a skiff, get briefed, im supposed to meet with michael hayden, the head of the nsa at the time. Walk into the meeting, should have known immediately when he didnt show up that something bad was going to happen. We have the normal meeting. And we do the legitimate work and then there is a bunch of people down the end of the table, basically ask me a couple of questions and they say they need some help on this other project. And i not a lawyer. And but i had been in telecom for 28, 29 years by now. I knew the requirements of the telecom act on privacy, i knew there was an act in 86 that dealt with Data Communications and so i asked the obvious question, and the obvious question you ask you meet with intelligence people, particularly if theyre not fbi, meaning theyre supposed to be looking at foreign intelligence, is you ask if they want to do something to the united states, do you have a fisa warrant . Foreign Intelligence Service act. Talked about it this morning. Came out of the Church Committee in 78, the answer was no. Actually the answer wasnt no. If the answer was no, i would have felt better. The answer was, we dont believe we require it. Well, thats called in corporate speak thats called an idiot question. Theyre trying to determine how much of an idiot am i. To say they dont require it means you shouldnt have asked the question. Then i asked the second question and that is, if you dont need a fisa warrant, do you have executive authority, meaning did it come out of the staff from the president . The answer was no. I said well be happy to help, but you need to show me some authority because, you know, i cant participate. Thats all i can say. We got black balled after that. I learned six months later, it wasnt until june of the first contract we thought we had, we didnt get, 150 million bucks. Later that year, we lost 700 million in contracts. I get indicted five years later, and what im told is, youre being indicted because your forecast for 18 months in the future has too much risk in it. Okay. I had been in telecom for over 30 years at the time. I never had a forecast that on business that the people below me thought was reasonable. They would always want what we call sandbag, the lowest commitment, so they can beat it and get paid incentive compensation, i want the higher commitment to force the performance. This is literally what my case was about. With one caveat. Everybody who testified against me never had clearances and didnt know about the government work. And i was prevented from bringing any of it up. Were going to come to that in a moment. Thats the genesis of how i got it has been reported in the media that you were the only Telecommunications Executive at that time that didnt turn over customer records. Is that the is that what were talking about here . Are we talking about Something Else . What has been reported in the media, first in 2006, usa broke a story about the nsa Telephone Company for billing records and they reported and i had nothing to do with this story, nor my lawyers, that qwest was the only company that said no. Thats true. That is not what was happening prior to 9 11. So whatever this was was something other than that. Yeah. Even though that in fact was true. That is true. We also said no a second time. But for that. But there was a more serious question asked earlier. Now ill now we can talk a little bit about what was different about your case. They had this novel theory, but there was there was Something Different about how your case unfolded. Why dont you explain what it was that was different about it. To paraphrase, what is the boy from brooklyn in the middle of all of this stuff for . We learned very early that they opened an investigation on us. And, of course, like any good corporate board, first thing you do is blame the ceo and then you buy him out of his contract, which they did. I technically resigned, they paid me a lot of money to leave, i took it and left, thats always the deal. Four years later, theyre coming after me on an Insider Trading charge which i think is absurd because for those of you who know the s. E. C. , they have rules, rule 10b51, if you sell options, here is how you do it. I hired internal lawyers to design the plan. We got the board to approve it. We announced it four months in advance and they still said i did Insider Trading. But you cant once you fight the justice department, theyll come up with 100 reasons why that was all part of my conspiracy. What the interesting thing was, i learned when i was a target, early 05, i wanted to tell my wife, you know, i said, you know, theyre if the theory is theyre coming after me for Insider Trading and if the theory is securities fraud, that the projection is wrong, i need to tell you why i thought the projections were right. First thing my lawyer said was, dont tell me anything more. When he deals with classified information you dont have Attorney Client privilege. You dont have spousal privilege. And your attorneys can be held criminally liable if they learn classified information from the defendant. The first thing that has to happen is you have to be indicted, you have to be arraigned, and then you have to petition the court to grant you a lawyer, the same clearance you have so you can tell them what your defense is. Is that what happened in your case . Thats exactly what happened. And then after that after that why dont you explain how you go about communicating with your lawyers in the realm of this information that is protected. Let me just loop back for a minute. There is something i want to say to the audience. Ive been pretty pessimistic for the last 14 years. One of the bright spots, i said this to norm last night and said it to ted and some others was just the fact that you people are holding this conference, okay. Because i think you said it earlier. That you guys are not fighting a legal issue on the matter of overreach by the federal government, surveillance, and overcriminalization. I see it as all one pattern. You are fighting money and power. Okay. You are fighting about the way this country is going to go. And the only thing i feel optimistic about is i can look around this room and see young people, okay, because im not going to be my lifetime, this isnt getting solved, okay, and you people are passionate about it. And it is going to take a groundswell. I think you said it earlier. It is going to take a battle on many fronts. When youre up against the department of justice on a normal criminal 3 conviction, you have no chance of winning. If i was fighting a normal Insider Trading case. I spent 15 million and lost, okay, across the board. And even when i won, like on appeal, they managed to get an en banc court to hear it, which is rare, and extraordinarily three judges on the 12judge panel recused themselves and i get my conviction reinstated 54. And for those of you who have been in front of an appeals court, there is a dissenting opinion, all four judges in the tenth circuit wrote individual dissenting opinions. Thats how strongly they objected to what happened on getting the thing reversed. Well, i had to go through a 17month process in what is called cpa hearings under the classified information procedures act. If you think the problems youre dealing with here on illegal surveillance or oversurveillance is difficult, when the government gets to put an extra layer of secrecy on everything, okay, you cant imagine. I was with two nsa whistleblowers yesterday, while i was in washington, they were talking to me about some things, and one of them was telling me that telling me about the east germany, exstasi guy who said, you know, we wish we could do those things when back when they were around. When i saw the u. S. Government do in those cipa courts would have made orwell, stasi and even the nazi courts be envious, okay . Let me give you a couple of examples of what they can legally do. Under section 6 of cipa, and im going to come back to section 5, a key one, even when the court says yes, you can bring this evidence forward, the prosecutors have to agree what language you can use. In other words, they can intervene and say, like, for example, i cant tell you the four agencies i worked with. Even in trial i couldnt say it. I could say four clandestine security agencies. If i wanted to say i got a call from ill make up a name from that genre of time, im not suggesting it is true. But lets assume i was meeting with george tenet, the head of the cia at the time, i couldnt say, i had this assurance from george tenet, the head of cia. What i would be allowed to say is i met with the senior government official. Now, you guys know in front of a jury that specificity leads to credibility. And i would think that it is much more credible if i was going to make a claim that i met with george tenet than some unnamed bureaucrat in some unnamed intelligence agency. Thats what the government agreed. So anything that i could even say that i was involved was watered down. More importantly, this section 4 cipa says even if it is legitimate under the federal rules of evidence, we can keep it out if it deals with National Security issues. And they actually used that on me. For those youve who are criminal defense attorneys, one of the cardinal rules in a criminal case is nobody gets to have an exparte communication with the judge. The government had three with my judge. How do we know that . Matter of fact, this is really good, if you call the u. S. Attorney who prosecuted my case, he would say this is all baloney, nothing to do with it, except now you have redacted transcripts that were released after i was put in prison, thousands of pages of it, and everything im telling you is in those redacted transcripts. How did they get released . They got released because the denver post did a First Amendment challenge, all through the 17month process and they basically took the position that in federal court that said, look, whatever is going on in the courts, everything theyre saying cant be secret. So to broker a deal after my conviction and after my sentencing, i should point out, the same federal judge brokered a deal that said were going to release all of those transcripts, but the government first gets to redact the information. And if you ever had a boring weekend, you can see that you can read a transcript with an attachment and there is a thousand pages of blacked out information behind that attachment. Most importantly, the Washington Post of all people, because they werent in denver at the time when the redacted transcripts come out, i need to tell the story because there is a Washington Post person here today, i want to give them credit, they came out on a tuesday night, got a call from my lawyers. My lawyer said, joe, youre not going to believe this. February 27th meeting, which i was not allowed to bring up in my defense, couldnt acknowledge it existed, they failed to redact it in the transcript. Okay. They had redacted it in several parts of the attachments, but had not redacted it in the transcript. It was the Rocky Mountain news that thursday that wrote a story about it, and on that friday it was the Washington Post wrote a front page story and i dont want to get into politics, but what they said was, if you read this guys cipa transcript, what bush said about it all starting at 9 11 is not true. Im not taking the position on that. But they wrote a front page story. So i went through 17 months. I saw these abuses. And im going to tell you another interesting fact, i dont mind saying this on camera because ive done it on fox news already. My judge, who has been removed from the bench shortly after my trial, Edward Nottingham iii, was ruling for first seven or eight months pretty balanced, pretty favorably, trying to live within the constraints of the cpa act. There was an exparte communication by the name of shimkus who showed up. These people would show up from washington and werent required to announce who they were, okay. One guy is in the transcript, you see, his name is simpkins and he identifies himself as the senior counsel to the assistant attorney general for counterintelligence. Now, the u. S. Department of justice to this day denies that my case had anything to do with classified stuff and what was relevant to my defense. So i guess the senior counsel to the had nothing to do that day and decided to fly to denver and have an exparte communication with judge nottingham, who from that point forward completely reversed his rulings, denied access to a lot of we couldnt even get denied access to documents, said i couldnt talk about february 27th at all, denied several other motions we made, including ill tell you how dirty they play, they made a mistake. When the fbi interviews people, you know them as fbi 302s, the number of the form, there was a classified 302, we fought for eight months to get our hands on what the government had. They gave us one, a mistake on their part, because it had a counsel to one of the intelligence agencies named, her name is classified, who said, yeah, i was in a meeting and they were pretty mad at joe nacchio for refusing them. She said that. So we went back to the judge, filed two motions, saying that i was my Constitutional Rights were being violated by not turning over and letting us interview this witness. Now, very cleverly since this was all in a secret court, none of you could see it so they could get away with it, they reinterviewed this attorney. And this attorney came back with a new 302 and said, oh, geez, i was mistaken, i didnt really mean to say that. They werent talking about joe nacchio and guess what the judge said, the judge said, oh, okay, there is no reason to interview her. The judge didnt say we got two 302s in contradiction, this is for a jury. The judge i want to finish this story, youll understand why i think youre in a big fight. This judge, after my conviction, after im sentenced to prison, gets caught in a prostitution scandal, much like eliot spitzer, which if you talk to people in the intelligence community, theyll believe those guys got caught because of an intelligence sweep, okay. Got caught in a prostitution scandal. As the tenth circuit is investigating him, okay, and interviewing some of the prostitutes, a prostitute says to the fbi person who is doing the investigation, judge nottingham coached me on how to answer your questions. Now, i think for rest of us in a normal word, that would be obstruction of justice, witness tampering, and youd probably have an indictment against you and go to prison. They allowed nottingham to resign from the bench, give up his pension, he comes from a wealthy family, okay, and the u. S. Attorney chose not to do anything. Now i always believed that was payback and i believe the exparte meetings said the following. They said, you need to find a way to convict this guy and let me tell you why did they want to convict me . I was a dodger fan, from brooklyn, why do they care . The answer is pretty simple. If youre the head of nstack and you say no to the nsa, how likely do you think it is going to be that at t, mci, sprint and everybody else agree. How likely do you think its going to be the other Information Technologies will be complicit . Now, i think me going away to federal prison for a couple years, forfeiting 70 million, having my career ruined, reputation ruined, all the collateral consequences i suffer now. Im such a threat to society, i cant vote, i cant carry a firearm under the second amendment, you know, impacts your family. Thats a message to everybody else. As you know, as you read recently in 2007, yahoo admitted they got fined. So everybody has played ball and with all respect to the people who were presenting today, when i hear that, you know, google and facebook and cisco and microsoft are, you know, putting up and at t and verizon are putting up this big fight to protect our privacy rights, that program is being run out of the pr department. I would bet you today, every one of the ceos is brought under the cover and has top security clearance. Not because the government is magnanimous, it is because theyre all agents of the government. Our danger Going Forward is that the world is getting more sophisticated and youre up against big money, big dollars. Besides maybe some altruism that people think theyre protecting the country. Let me play devils advocate for a moment. In a society in which you have free enterprise, in which the government doesnt own all of the industries, isnt it almost essential that there be a level of cooperation between telecommunications and the government . It always has been essential n world war ii they were tapping circuits going through bermuda. It always has been there. You have to do it. The question is, there is legal ways of doing it, and then there is not so legal ways. People who look at the fisa courts, i read recently, since 1978, there has been Something Like less than a dozen times a fisa judge said no to a fisa warrant, okay . Since 1978. Now, if you have a mechanism to get a fisa warrant to do these activities, and you choose not to do them, okay, even you must believe something is wrong. Because judges, these are handpicked courts, handpicked judges who always say yes. And we heard first panel this morning that some of the standards have been relaxed. Congress has moved back, but maybe one of the answers is that we need we need to get our legislators engaged. I would like to sort of bring it to a close by asking you to look at a couple of trends. And talk, first of all, about capacity and the potential for abuse and then talk about what the final capacity. A couple of i think three or four years ago i read while he was away nsa was building a million square foot place, utah, for storage. Thing they just went in for a wreck what signature to build a another Storage Facility here in ft. Meade. Theyre collecting a lot of data. I think the panel was on to something very important this morning, which is going to i wasnt following all the legal inside and out, you dont need all the data. You need the meta data. If you can get names and addresses, you can get patterns. You get patternable sis and you weed your universe down from, you know, a trillion people youre looking at to 20,000. And then go look at the data. You might ask, why arent they doing that, not building all these facilitys . And the answer is, because a lot of this is outsourced. And there is a lot of money being spent, okay. Dont ever believe the people who are the suppliers are finding the most efficient way to do something. Theyre finding the most profitable way of doing something. When your budget is secret and when all the conversations are secret, and when you play the orwellian game that we have a new threat, like they did in 1984, okay, you know, you kill osama bin laden, you replace him with another guy, and replace him with isis and then these guys, were in a perpetual state of war on terrorism. I think the scariest part of that now is how were inculcating the American Public to believe that they brought this fight to, quote, to the lone wolves so therefore we better look at everybody inside the united states. Now, dont get me wrong. There is real National Security threats. And there is a real need and imperative for our defense and intelligence agencies to be on the cutting edge and to be better than our adversaries. It is an ugly, dirty world out there, okay . But the bottom line is we will prevail as a society based upon our morals and our principles, not based upon we can beat the other guys in the dirty game dirtier. You look at our constitution, it is probably the best political document ever written, okay. And we seem to be able to willynilly throw it aside when you have National Security issues. I think thats a dangerous slippery slope. I think thats a good note to reflect on why were here, which is to make sure we have at least on the front lines where a lot of these things are litigated aggressive defense lawyers who are able to inform courts, try to shape the law and then advocacy groups like so many youre hearing from today that can perhaps push for the kinds of changes that will bring us back to the checks and balances that we absolutely. I think what you what you need to think about is you dont want to be in the position of the ethiopians against the italian army in 1935 where theyre attacking the tanks with spears on horses. Okay. Fighting this battle through the courts is only one of course, of course. Playing field. It is a much bigger playing field. And i wish i had the answers for you guys. Well turn it over to questions. I want to wrap it up, joe, by just making the observation that we all, as officers of the court, as lawyers, we have respect for our system. Nobody can really know almost in almost any white collar case, the issue is always comes down to one of intent and whether or not you can prove beyond a reasonable doubt that someone has a criminal intent, thats what a jury is for. Right. So when we reflect on this case, rightly or wrongly, what seems to have been lacking was the jury being able to hear all of the facts that would make it possible to make that determination. And i think thats it shouldnt be it shouldnt be for judges at all to decide, except in the most extreme case what a defendant can tell a jury. It is up to the jurors to believe whether the defendant is telling the truth or not. Up to prosecutors to say no. I think you put a layer of secrecy over that and empower the people to do what they can do, people asked me for a lot of years, why didnt you take the stand . I didnt take the stand in my defense, nor did i elocute at sentencing. If i had, i could have had a lower prison sentence because judges like it when you get up and say, now that you caught me, i feel bad, ive seen the light, please forgive me, you know, and they give you less time. I remained silent. I wouldnt address the court. And people said to me, why dont you do that . And maybe i was polly annaish about it but i thought it was the matter of principle. I felt i was in a kangaroo court. I felt my Constitutional Rights were violated. And i wasnt going to participate. And as a result, i turned down the deal, by the way, i could have had a deal on one count, probably would have done 18 months, doj would insist on prison time. The deal i turned down was one count, 18 months, 10,000 trade, my restitution would have been 10,000, i would have been fined 1 million. Instead, i said, no, they indicted me on 43 counts, faced 430 the government asked for 430 years in prison. I got only 72 months. I had to forfeit 62 million. And i was fined 19 million on top of it. And then, of course, there is a story for another time, how enjoyable it is to be in federal prison four and a half years when the feds are watching you. Special designations. I was called a cim inmate, cim. Centralized inmate management. That meant wherever i was, the people had to report to people in washington. Who these people are, who these wizard of oz people are behind the curtain is beyond me. I could tell you, i got a lot of unusual treatment. I had a 15minute Court Appearance on resentencing. It took instead of the i had 15 minutes, real quick story, 15minute Court Appearance in denver. Warden could have granted me a furlough to go to denver and back in one day, we offered for the marshals to escort me. I was out on bail not a flight risk, i should have been a candidate, i could have done that, they said no. And instead i got treated to diesel therapy. Diesel therapy is when they turn you over to the u. S. Mashals. For a 15minute Court Appearance, i spent seven weeks on the road, four flights on con air in solitary in Oklahoma City for eight days, which we inmates call the hole, i was in three penitentiary cell blocks, if any of you know the federal system, i had the enjoyment of being in brooklyn mdc, metropolitan detention center, truly one of the poorer facilities. For 15 minutes in court. Okay. And they didnt have to do that. So what i learned, and i want to end on this, what i learned being in prison and through this whole experience is something that most americans take for granted. And thats and some of you heard me say this at lunch, dinner last night, i kept coming back to saying, whatever the issue is the most important thing is a persons freedom to make the choice. Okay. Freedom is for americans somewhat esoteric concept. All of us have been born into a free society. You go into prison and you have no Constitutional Rights, no freedom, and then remind you that the only obligation is to feed you, to house you, and to give you clothes, anything else is a privilege, okay, and when they say jump, you jump, when they say you do x, you do x, you get a real appreciation for freedom. And i hate to see what i fear is a very dangerous path this country is going down, where were giving up our freedom, in increments, because were constantly being told there is a threat to National Security. I think James Madison said this well back in the federalist papers, he said he was more worried that of our strong Central Government that americans would lose their freedoms in small bits rather than a sudden usurption of power. Thats whats been going on since 2001. Fight for your freedom, thats important. Any system with no check and balances is going to be abused. Okay. Which is the problem with secret courts. And you are in for a good fight of your lives too. Ready to take some questions . Happy to. And, yes, i am a convicted felon. And, yes, i cant vote, and im not allowed to carry a gun. A whole bunch of other things depending where you live. Like 40,000 of them depending what state youre in. With angela and frazer coming to the microphone, thats a perfect segue. My question goes to that. So you talked about a couple of the collateral consequences that you face. One of the collateral consequences that you dont necessarily face is that you are attractive white man with a suit and a tie on and youre given the benefit of the doubt when you walk into the room that you dont have a conviction. One of the things that some of the folks who we have talked to when we were doing the report was, they he cant even get a foot in the door. My question is, since you probably can get a foot in the door, how has that experience been for you, and then my second question is, how did you feel about people who had records or incarcerated prior to you being incarcerated yourself and what are the types of people that you met when you were in incarceration . Look, i have im blessed. I have a wife of we know each other 40 years, married 37, she never missed a visit, except on a road trip and i couldnt get visits, my kids all got through this fine, there was some damage there. But my friends, my three closest friends coming out of prison now, one is an africanamerican drug dealer, did ten years, one is a puerto rican drug dealer who did ten years, and one is a dominican drug dealer who did ten years. Those are my three closest friends in prison. One is named q, spoony, and juice. Okay. Because people now, these guys, and me, are about as different as you could ever imagine from background. We became the closest friends. One of the things i learned in and theyre all having tremendously difficult times finding a job. And one of the things i learned, which i should have mentioned earlier is what prison taught me, and i said this in front of the federal judge when i was going back for resentencing. I asked to be sent back to prison, back to the prison i was in for as fast as i could. I didnt need to be there for resentencing. And i said, i want to go back because the character of people im in prison with is better than the character of people i worked in business and the government with. Okay. And these guys, all of whom got their ged degrees or 2 out of the 3 got ged degrees when i was in prison and i was a tutor to one of them. All have enormous difficulties finding jobs. If theyre lucky, they make 10 bucks an hour. Government comes in and takes 15 off the top for restitution, then they pay their taxes on the full amount. They even though the federal law says you cant discriminate because youre an excon, everybody does. Now, you asked me about my personal experience. Its really interesting, you know, when i was the head of nstac, id been invited to im not picking on anybody to be but, you know, id been invited to gates house three times. I knew chambers at cisco was a good friend. I knew the ceos of everybody. Only one ever contacted me once there was an indictment. Okay. Only one. Im not i didnt need their money, i didnt need their support. It would have been nice for them to say, you know, joe, we thought you got screwed, we dont believe what theyre saying about you. Nobody ever did it. My friends in prison, theyd have your back. They would share the last bit of contraband food that we smuggled in, okay. You know, to help you out. And all three of these guys are having a tough time. And you know what i do, the little i can do. Ive tried to find jobs for them, but im not in that circle anymore. But i talk to them about once a month. Just to keep them on the straight path. You know, youre making, youre making 10 bucks an hour. You cant afford your family. You know, youve got to see a parole board. You cant travel out of state. Every month, hes deeper and deeper in debt. Everybody they know in the communities they grew up with is associated with the drug trade. So up pops your friend. And he says, youre 11,000 in the hole on your credit card. Youve been out a year. And he says, hey, i want you to do me a favor. Drive to baltimore and pick up five keys of cocaine, ill give you 20,000, you do that and get caught, youre doing 20 years mandatory on your second federal sentence. Now, these people are in for economic crimes. I know drugs are bad. But the government wanted to stop drugs, they could. All right. Lets go to another question. Well leave well leave the drug wars for another day. And by the way, i applaud the president yesterday, this week, i think somebody in heres affiliated, i think 20, hes only got 250,000 more to do, right. Take the 20 and run. Hi, joe. Im ellen nak shim ma with the Washington Post and cowrote that article you refer to. I tried calling you back then and you didnt take my call but i found you here now, eight years later. I was busy. So back then, we saw in court documents, i guess, you said youd thought you were, you lost out on contracts for the nsa because of your refusal to participate in this nsa program. So now today, just to clarify, are you saying you think you were prosecuted because of your refusal to participate in that program . And secondly, if you had decided if you had gone along with the nsas request and participated, do you think they would have come back to you again a second time and asked you to take part in that Second Program . Well, i cant answer the second because i didnt participate in the first. But, no, to this day, i believe, i used to joke with some of my friends in prison. I told them while i was there that i was the only guy in prison who got to prison for refusing to break a law. And, so, you know, as a matter of fact, i think, yeah, ill be very direct. I think i was singled out and targeted to be made an example of. For five years they crawled through the books so many ways. It would have been easier to get me on a Sarbanes Oxley violation and much bigger consequences from a sentencing point of view. They couldnt find anything. They couldnt find anything on a normal Insider Trading case so they came up with this novel theory. We thought it was absurd. Until i found out what happens when you before you get to a jury, what you can say and what you cant say. So no, im certain of it. As a matter of fact, give you guys a preview, im battling the u. S. Government in court of claims. Doj representing the irs, deals with my forfeiture of money. They make you pay the gross amount as a penalty anyhow. So whats happening is doj is choosing not to go to court on this. Theyre going to stipulate at the trial court. They offered me a stipulation to win. And i said no. I said i want to go to trial. I want a court record because i know Appellate Courts only read whats in the court record. Were negotiating with doj right now. My lawyer should have it done within 30 days because they asked the judge for a 30day stay. Im putting in a stipulated statement in that case, in that federal case that says, if id been allowed to testify in 2001, heres what i would have said. Heres the contracts that we were blackballed on. And heres the amount of money i thought i was expecting in my budget. Thats going to become im not going to tell you what that is now. Im going to let it get filed in federal court. Im going to let the judge affirm the victory at the trial court and then we can talk about it. To be continued. Yes. Thank you. So, i think, weve run out of time, joe. Thank you very much. I appreciate your participation. Keep up the good work. More from this conference on Surveillance Technology and the law with a look at how surve surveillance has outpaced Privacy Protection laws including the constitutions Fourth Amendment that prohibits unreasonable searches and seizures. Former security adviser to president bush participate in the discussion. So welcome, everyone. Good morning. Thank you all for being here. A special thanks to nacbl and the criminal law practitioner and particularly to jumana musa who did a lot of behindthescenes work to make this happen. Im going to do very brief introductions so we can get right into the meat of our panel. You also have longer bios that you all should have received attached to the agenda for today. So all the way on my far right catherine crump, who is an assistant professor and clinical professor and associate director of the samuelson Law Technology and Public Policy clinic at berkeley. She was also a former staff attorney at the east l. U. For nine years. Next to here we have eric wenger who is a director of cybersecurity and privacy at ciscos Global Affairs division here in d. C. Also former counsel at microsoft. To his left, my right, is liza goitein, the codirector of the National Security project at the brennan center. Also a former counsel to senator russ feingold. And immediately next to me we have Joseph Lorenzo hall who is the chief technologist at the center for democracy and technology and were particularly excited to have him here to talk about the technological aspects of all of this. So i am going to remind us of what we all know. That theres been a tectonic shift in the way data is collected, stored, the ways in which we communicate over the past 10, 15 years. So our panel is going to explore the implications of that. Both whats happened and what that means for the law and for policy. And im going to run this as a moderated discussion. I really want to have a conversation between the panelists and eventually there will be time for all of you to ask your questions, as well. Im going to start with joseph, and i want my question is about the underlying technology, just to lay out whats happened. So what have we seen . Whats changed in the past 10, 15, 20 years, and whats the world were living in now . Thank you very much for having me and for organizing this event. To put it simply, surveillance is and collecting data about individuals that are targeted for investigation or not targeted for investigation has simply ballooned extraordinarily. Surveillance has gone from passive types of collection to increasingly active types of collection. I will describe what im talking about there in a minute. From targeted to increasingly bulk forms of collection. And to sort of less intrusive forms of getting this stuff to pretty dramatically intrusive and shocking in some cases at least to me as a technologist and people who care about Civil Liberties in general pretty dramatically, intrusive, and probably shocking intrusive methods. Surveillance historically has been what we call sort of passive signals collection. What that means is you can think of it as just listening. Traditional eavesdropping where someone is communicating and you sit there and you capture the stuff. And you analyze it there. With the sort of amazing explosion that the internet and Digital Technologies have created there is a much more active surveillance. What i mean by that is not just listening but participating in the communication flows in ways that are meant to sort of undermine the trust in the systems, and to get access to things that they might not already have access to. So for example when you communicate online with your bank or something you will see a little lock in a web browser. Thats basically saying this is an encrypted transmission. It means if someone were to eavesdrop on it looks like gobbledygook. Not only that but its authenticated. Someone vouched this is your bank. And browsers go to Great Lengths to make sure that is the case. Theres something called a man in the middle attack where, say, catherine on the end of my panel is trying to communicate with me, and we wont use eric, well use liza here, liza wants to intercept our communications. What could happen is catherine could send a signal into the ether, liza can essentially pretend like shes me, and send credentials back to catherine that look like me, and then very transparently pass that information on to me. That sounds very passive in that they are not modifying the content of the communications. But what they can modify are the credentials sent to sort of undermine your ability to engage in confidential and Confidential Communications that have some underlying integrity so they cant be changed. Not only that but we have seen this weaponized by the National Security agency and its Global Partners into something called quantum. Which make no mistake about it is basically what i call a Global Attack infrastructure on the internet. What i mean by that is we dont know a lot of details about this stuff. It often comes up in powerpoint slide decks from the nsa. Essentially this is something thats with a select targeted program, with a selector it can intervene communications flowing over the internet such that it can poke a hole in your browser and exploit a vulnerability in what you youre using to communicate with and then once they have that installed software in your computer to do a variety things. Capture keystrokes for passwords and a whole bunch of things. It is targeted so its not doing this to everyone all the time. There is other stuff theyre doing to everyone all the time. Thats what i mean when its gone from targeted surveillance to increasingly bold. A good example of this is the Muscular Program. Mousse dollar is all caps. I wish i could shut it. Muscular. The Muscular Program was one where the nsa was overseas tapping the entire data links between yahoo data centers and google data centers. These are the private networks between these data centers taking all the information that was sent over those links. Its a lot of information and in fact when yahoo pushed out an update to its internal file system storage, the way they store data they had to sync this stuff back, nsa had to turn it off because they were getting essentially all the stuff from everyone all at once over the period of a day or a few weeks. That is decidedly broken. Obviously the first thing we learned about from the snowden investigation, the 215 metadata program, was pretty shocking to a lot of us when we realized that, you know, some amazingly large 99. 9 something fraction of these people are entirely innocent in their date is being collected. I like to say the nsa and its partners were converts to what we call big data way before industry caught up. They were basically collecting all of the hay in the haystack to get access to however many needles are in the haystack. Finally this kind of surveillance is gone from sort of relatively unintrusive. Part of this is just how society has evolved. So going from relatively unintrusive to very intrusive. We used to say our digital watches have more Computing Power than the Early Computers and unfortunately your smartphones and ipads and im using to look at my notes right now are vastly more complex and capable. And so you get this combination of sophisticated analytical techniques, and then subversion of technical hardware and software. You have heard about content chaining in the 215 data base where they look at these phone numbers called these phone numbers, these phone numbers called these. Those all can be implicated once you have everyones calling records. And theres other things like covert analysis where people on the same train, a target may be implicated as well. We are all creatures of habit and i see the same people on my train all the time. So theres a big opportunity for what we call false positives identifying someone for suspicion when we shouldnt have a suspicion. The last thing i will mention this when we get to, when we talk about less intrusive and increasingly intrusive we are starting to see very sophisticated subversion of hardware and software. Some of these things are attacks on what we call keying material as technical folks. These are the Encryption Keys that sort of make sure that all the things you do cant be modified in transit and eavesdropped on it while youre communicating. I think this is especially cute acute in a case with cisco and eric can talk more about this. Apparently the nsa is doing this stuff where when someone orders products and specifically cisco products because they send a lot of routers and servers, very chokepoint computers that control a lot of your communications around the world, theyll capture these things. Apparently very carefully open them and modify the hardware or maybe the software inside of that device and send it on its way. This is very troubling to a lot of us in the sense that these are chokepoint Communications Technologies that are being subverted technically which means just the same kinds of concerns that you may have heard about with the back door discussion with the fbi, this is fundamentally undermining the security and integrity of these products. It is important to the people using the products but its also important to the businesses that require this trust to sell these products and to put this really good stuff out there. I know a lot of particularly cisco engineers. I know a lot of engineers. But i know a lot of cisco engineers who are just some of the best and they work very hard to make sure that businesses who buy these things conduct communications to keep things like trade secrets, business deals and things that are time sensitive and sensitive personal and medical and Financial Information safe. We dont want to see that leveraged for bad uses such such as organized crime or things like that. I think ill stop there. One announcement for those of you watching on line there will be a questionandanswer session and you can email your questions to nacdlquestions gmail. Com. We dont get to them all but you can start thinking about that for those of you watching online. Now i want to turn to liza. Having heard about the Technological Developments can you describe for us how the Legal Framework has or has not kept up with these developments over time . Sure. First thanks very much to National College of washington of law for hosting this event and having me participate. I think its pretty Clear Technology has made it much easier for the government to collect americans information in massive amounts. Even programs that are not only targeted at foreigners overseas are likely to sweep in a huge amount of americans data, either inadvertently or as they say incial