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 at the time was the chairman of the senates sm subcommittee on the constitution. On the judiciary committee. She handled liberty and National Security matters. Focus on government secrecy and privacy rights, hence our joy at getting her here today to complete our 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 were going to offer you a chance to go upstairs to our 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, mike, for that kind introduction and thanks to the Hoover Institution for inviting me and thanks 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 that lie beneath the complexities and the jargon. I want to start by telling you a story. And to tell the story from the beginning i have to go back to the 1940s to the end of world war ii. The National Security state 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 hoover, who exercised a kind of tyranny over the rest of the federal government. Our ally russia morphed into our enemy. 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. And gradually, over a period of decades, the specter of foreign communist influence became the basis, some might say the excuse for the infiltration, surveillance and systemic harassment of a range of political movements with a particular target on civil rights and antiwar protests. At the same time, leaders were able to use intelligence agentsies unchecked political powers to dig up dirt on political opponents, pesky journalists and personal enemies and the like. Some of us 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 in this country are getting a taste of that now. 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 they received a visit from an fbi agent. That was the atmosphere back then. In the 1970s some of the worst abuses of the intelligence agencies started to come to light and the Senate Appointed a special committee, 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 activism. The nsa copied and analyzed 150,000 telegrams going in and out of the u. S. At this point, which seems totally quaint. The fbi bugged Martin Luther king jr. S Hotel Rooms in order to get evidence of extra marry tall affairs it then used to try to 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 they might have to get a subpoena but at a minimum they there had to be reasonable suspicion of wrong doing. The Foreign Intelligence Surveillance Act is one of these laws. If the federal government acting inside the United States wanted to collect communications for foreign intelligence purposes and if there was an american on one end of the communication, the government had to apply to a special court. By the way, this was foreign to foreign, 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 an agent of a foreign power and if the american was the target that involved some level of criminal activity based on the definitions in the statute. The idea behind all of these laws was if that government officials had to point to an objective indication of wrong doing it would be harder for them to fall back on racial bias and 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 three decades. Then came 9 11 and just as quickly as that rule had been put into place it was tossed aside. The individualized showing that had been required to get Business Records about americans in 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, which lacks a factual predicate. Meaning there is 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 stopped it. But in this instance at least, that instinct 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, that was never recommended and thats because theres absolutely no requirement that doing that actually helps in any way to make us safer. And ill circle back to that. That getting back to 702. We have heard about the changes made to the law. So ill briefly reiterate what i think are probably the two most fundamental ones. First, it removed the requirement of case by case judicial approval when an american is on one end of the communications. These days the government is quite dismissive, even sarcastic sometimes about the fact that they could be required to get a court order to collect on a foreign target but in fact that is exactly what the law retired from 1978 up until 2007. Second, section 702 expanded the permissible pool of targets and at this point there the is no requirement that the foreign target pose in threat to the United States, have any information about a threat to the United States or be suspected of any wrong doing. 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 that is supposed to be at foreign threats into a potential dragnet. Now, the government still has to certify that acquiring foreign intelligence is one of its goals although not necessarily the main one. Thats another thing we didnt discuss today. It can be secondary, but that term as was alluded to earlier is broad enough to encompass conversations about current events. Ive had conversations with my stepmother who is a Foreign National who lives 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 its targets beyond the mere fact that theyre foreigners overseas. I doubt my stepmother is a target of surveillance. I also doubt that every target of surveillance is someone who poses a threat to the u. S. Or has information about a threat because the statute doesnt require that. More to the point, 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 argument weve heard today that the changes made to section 702 were necessary to modernize fisa. And theres a bit of a creation myth here. The idea is that congress originally intended to regulate surveillance only for wholly domestic conversations not for International One buzz for some reason didnt say so and instead used the method of communication wire versus radio as a proxy because methods of communication have changed with more and more International Communications travel big wire which is true. Congressional intent is being thwarted. The problem with this argument 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. That would have been a much simpler law to write but congress didnt write that law. Moreover, proponents of this argument gloss over the fact that a significant proportion 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 wire, its just not true. So the modernization theory sounds good but it doesnt hold up, at least its it cant be the full explanation. Theres a different technologybased argument and they were kind of conflated in an earlier discussion but its a very different argument that julian raised that makes a bit more sense and thats the argument that certain foreigntoforeign communications which were clearly not covered by fisa in 1978 now transit through the u. S. In ways that bring them within fisa scope. And this is true for one category of communications and thats foreigntoforeign emails that are store on u. S. Soil. But the changes made by sexton 702 obviously went far beyond what would be necessary as julian was saying to address that discreet problem. The truth is changes in technology were an exhibiting the nsas ability to conduct surveillance in the years before 702 was passed but they were making surveillance easier not harder. The reach of government surveillance in 197 was substantially constrained by technological limitations and cost constraints on electronic communication itself and on the governments ability to acquire, store and process all of these communications. Over the past couple of decades, these constraints have become negligible. And the government has unprecedented capabilities today to tapin to communications which have explode all kinds of communications and to store them in the ped i bytes and to use sophisticated computer analytics to sort through them. So this is truly the golden age of surveillance. Theres another aspect to this. In past decades International Communication versus purely domestic was relatively rare because it was difficult and expensive. Today in our interconnected world, it is cheap, its ease. Sometimes its free and its necessary. Could i just have a show of hands who here has communicated with a foreigner overseas at least a few times in the last year . Okay, i think thats everybody. So what all this International Communication means is that the amount of information about americans that the nsa intercepts even when targeting 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 into a tool for mass surveilance. What do i mean by that . In 2011 according to fisa court krk 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 reported targets has risen steadily each year. As we know, the government is generally allowed oo to keep these communications for about five years. That means at any given time, there is 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 them . Wouldnt we like to know. This is the question that lawmakers have been asking the nsa for years. The nsas original response is we dont know. It would be too time consuming and expensive to find out and it would violate americans privacy to find out. This last one is not quite as crazy it sounds. Its true 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 also another way to do this, and for upstream collection, the government is required as a constitutional matter, to apply a fitter to filter to try to filter out wholly Domestic Communications on the front end. The way it does that through a combination of using the ip address and certain other techniques that it has. And it says that it can reliably screen out the vast majority of Domestic Communications in that way. If that technique ip dresses plus is sufficient to identify who is a u. S. Person for purposes of complying with the constitutional requirement, its sufficient for purpose of give us an estimate of how Many Americans communications are picked up. And in fact under president obama, the director of National Intelligence finally agreed that they would do in that they would try to do this. They came up with some megd otologies and briefed lawmakers and Civil Liberties advocates. They were ready to go and then mysteriously for past few months, weve heard nothing about it and then we start hearing again from spokespersons for the government, its very difficult. There are privacy concerns. So we were on the verge of getting that number. And now somehow, 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 absolutely minimal while in the same breath saying they have no dale and not even a sense, not even a ballpark and no way to figure it out how Many Americans it communications are being swept up. In the absence of an official estimate, were left to draw our 0 own conclusions from the publicly available information. The Washington Post reviewed a sample of section 702 communications obtained from Edward Snowden and reported that approximately half of those communications contained some u. S. Person information. We have no way of knowing if thats a representative sample but if you assume that it is, that means that approximately 125 Million Communications a year would have some u. S. Person information in them and at any given time, there will be about half a billion such communications in the governments databases. Again, that could be wildly off but in the absence of any official data, thats the best we can do. Even if there were the strictest possible minimization requirements on the back end this kind of mass collection and storing of americans comrukss is extremely problematic for several reasons. First theres the potential for abuse for government officials to simply disregard the limits on the handling of this data and to misuse it for personal or political purposes. I agree there has been very little evidence of that to date, and i think its true that the laws and 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 agency sometimes talk about a culture of compliance. But the laws and institutions that led to this cultural shift are the same ones that have been steadily eroded since 9 11 and it doesnt take a clairvoyant to see that the culture within these agencies might start to change, too. Moreover, while we havent seen much evidence of intentional abuse, weve seen a remarkable pattern of failures on the part of agencies to comply with fisa court orders. Yes, people are human and make mistakes but im not talking about a handful of tribal incidents. Im talking 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 recent example can be seen in the april 26 opinion of this year that was discussed earlier. Now, these violations are ostensibly inadvertent. But in inadvertent privacy violation is still a privacy violation and the history of repeated systemic violation suggests that one of two things must be happening. Either the agency just arent try thrying that hard to comply and i dont want to reach that conclusion or theyre trying very hard but they cant. Theyre incapable of avoiding serious repeated violations. Maybe because the system has become so large and so technologically complex. Either of those explanations gives me very little reassurance when the government is asking us to trust it with tens, maybe hundreds of millions of our communications. That leads me to another concern. I would love to think that the Intelligence Community does a better job of securing its data than say the office of Personnel Management but it wasnt too long ago that wikileaks disclosed the cias hacking tools. So its, you know, their record is imperfect. And all of this information about presumptively innocent americans as well as innocent foreigners is sitting there in massive databases that are a very attractive target for hackers because they also include some potentially very valuable foreign intelligence information. And so you can see how the russian government or the Chinese Government might be interested in this data. Now, ive been talking about americans privacy but we also need to consider the effects of allowing the government to target any foreigner overseas. Foreigners may not have Fourth Amendment rights but they do have rights to privacy acknowledged under International Law including treaties to which the United States is a party. And the mass collection of foreigners emails and phone calls is very likely a violation of those international obligations, at least that is becoming the consensus position of courts and legal authorities in europe. As a direct result, the agreements that u. S. Too companies have reached with counterparts in europe in order to do business overseas have been struck down. And they are in jeopardy. Where theres one that was struck down in 2015, theres another that replaced it. That one may not survive if section 702 is not amended in some form when its reauthorized. This is a serious economic threat to the american tech sector which is why more than 30 Companies Including facebook, google and microsoft signed a letter last week urging significant refors of section 702. For all of these reasons, strong back end protections cant cure the problem of overly broad collection on the front end. Conversely, narrowing collection at the front end isnt going to eliminate the need for strong back end protections. We heard this earlier. Its the nature of surveillance. In any kind of surveillance you do, you are going to end up with incidental collection, collecting innocent conversations as a result of that surveillance. Thats why minimumization is required as a constitutional matter as well as a statuary one. The concept behind minimization in the 702 context is fairly simple. The interception of Americans Communications when targeting foreigners is inevitable, but because such interception ordinarily would require a warrant for an individual fisa order, incidentally collected u. S. Person information generally should not be kept or used or shared. Subject to narrow exceptions. The statutory minimization requirement however is almost entirely lacking in specifics. It leaves the details to the agencies and not surprisingly, the agencies minimization procedures contain numerous exceptions and have grown more and more permissive over the years as the inevitable Mission Creep has set in. Trying to decide how much to tell you about. How interested are you in knowing about the minimization procedures . Show of hands. Im going to go ahead. Not many hands but im going to go ahead anyway. The nsa can share the raw data with the nsa, sorry with the cia, the fbi now also the National Counterterrorism center as of recently. All of these agencies are generally allowed to keep the raw data including u. S. Person raw data not minimized for five years after the certification requires. So right there they can keep the u. S. Data for five years. They can also seek extensions at that time from a high level official and the limit doesnt apply if the communications are encrypted which is increasingly the case for people who muse mobile devices. If they con information with no evidence of a crime, the agency is supposed to purge the data but the oversight bound found it essentially doesnt because it can almost always pos sit a reason why some day it might be relevant. The fbi and cia dont even have that requirement. They just rely on the fiveyear. Moreover, if the fbi reviews information concerning u. S. Persons and comes to no conclusion whether or not its foreign intelligence, literally no conclusion, they look at it, dont know, the fiveyear limitation at that point evaporates and replaced with some longer period of time that is still classified. So ill just thats enough of that because thats already the weedy stuff. But it goes to show that the words we talk about, targeting minimization, incidental, they dont mean what people ordinarily think of when they hear these words. Its not minimizing the retention of u. S. Person information. Its putting some restrictions on it but not minimizing by any definition of the term. The most controversial and disturbing aspect of the minimization procedures is that they allow the nsa, cia and fbi to search through raw section 702 data using u. S. Person identify fears with the express goal of finding and reviewing Americans Communications. This is the backdoor search loophole. Remember, if the government wants to obtain an americans emails or phone 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. If the government wants to obtain an americanss 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 prohibition on reverse targeting. Before conducting section 702 surveillance, the government has to certify that its interest lies only in the foreign torth and that it does not intend to target any particular known american. Thats what makes it legal in the beginning is that certification. Only interested in the foreigners, not the americans. Not any particular known americans. And yet, the moment the data is in their hands, all three agencies can sort through it looking for the communications of particular known americans. 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 it many times, ill say it again, this is a bait and switch that is totally inconsistent with the spirit if not the letter of the reverse targeting prohibition and it creates a very dangerous end run around the Fourth Amendment. Now, ive heard intelligence officials defend backdoor searches on the ground that once information is lawfully collected it can be used for any purpose. Alex did an excellent job earlier explaining why thats not the case. I want to add on top of that that the very definition of minimization is you cant use it for any purpose. Thats what minimization means and thats not only a statuary requirement, thats a constitutional requirement, as well. The fisa court has plainly said and i quote, the procedures governing retention use and dissemination bear on the reasonableness under the Fourth Amendment of a program for select collecting for intelligence information. So what is the path forward . Listening to me speak, you would think that i am completely against section 702 and i want it to lapse. But everything ive 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 to go after foreign threats suspected terrorists and not have to get a warrant to do it. I think there are several changes that should be made to section 702. There are two major ones that i want to discuss today fairly quickly. I know im standing between you and cocktails but none of those changes go to the heart of section 6702 which is warrant collection on suspected foreign threats. I believe that that can stay in place. And we can still with that in place we can still address the serious, the most serious civil little bits issues which arise not from that but from all of this sort of me numb bra and ways in which the law is much broader than it ever had to be to do what it was supposed to do. In reverse order arguably, the backdoor loophole should be shut. The government should have to obtain a warrant for Americans Communications and criminal investigationed muches. It should 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 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 has then been required by the courts to go back and get a second warrant if it wants to do a later search even though it has that information. This is not unprecedented. As for the proposal to allow the government to search only for metadata and then if something comes up to have to then get a warrant to look at content, behave a process for the government to search for americans metadata. Its section 215. The government can go to the fisa court, show relevance to the investigation and get a court order to search for metadata. Im not on board with the idea that they can do it with absolutely no process whatsoever as a kind of om pro mice. In addition to closing the book door hope hole, the scope of permissible targets should be narrowed. I also agree that the end of a bout of collection should be codified. I want to talk about something we havent spoken about as much. Government should have to have a reasonable belief, im not talking about a warrant or probable cause standard, a belief that the target is a foreign power or agent of a foreign power or in some way poses a threat or has information about a threat to the United States. There is no reason to think that this would make section 702 less effective. In every case that the government has publicly cited including the zazi case 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 when government officials have discussed the larger nonpublic pool of success stories, theyve described them the same way. Matt olsen who spoke earlier testified last year that the typical section 702 Success Story has involved what he called narrowly focused surveillance targeting a specific foreign individual overseas basesed on the governments reasonable belief that the individual was involved with terrorist activities. Needless to say, these case dozen not support the idea that the government needs the authority to the 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, at the same time we can protect the privacy of innocent americans and foreigners through stricter minimization requirements and a more sensible tool of permissible targets and we can preserve the foundational principle that the government must get a warrant if it wants to listen to an americans phone calls or read their emails. Intelligence officials will say we couldnt or shouldnt do it and say any additional limitations on their authority will make us less safe. They made the same argument when congress was considering the recommendations of the Church Committee and i think they believe it now. 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 selfrestraints and the selfpolicing and the culture of compliance that have kept the government from taking full advantage of the tremendous legal license contained in section 702 will fail. Unless we act. Thanks. [ applause ] does anyone have any questions that dont relate to wlik drinks you can order when you get upstairs . Yes. Based this may sound like a really stupid question. Id like you to try to walk us through two situations. The first situation is under your reforms, if can you target a foreigner and you pull up and the snowden seemed to suggest you could pull up a facebook page, you could pull up chats. And theres an american at the other end. If you could under your system you could read that, and theres something on the american end that is suspicious, wouldnt that by definition give you enough to get a warrant . Well, so that youre raising another set of reforms which i didnt talk about, but in addition to getting warrant and closing the book door search loophole, another important set of considerations is use limitations when you can use information that you actually bump into as youre looking through, and again, the idea is this is information you wouldnt have had unless you had certified were not interested in the american, were only interested in the foreigner. You got it without a warrant for that reason. Question becomes how much use should the government have of information that it bumps into. I want to be very clear. I think that usually when this happens, i think the bigger threat is the backdoor search because i dont think its that often that accidentally the government bumps into a random crime being committed by an american when theyre reading. Go on. But maybe im just being thick here but is a backdoor search just throwing the name of an american into a search query as opposed to already having some information from having queried the foreign target . Yeah, its the difference between going looking for that information versus stumbling across it. So you could imagine if you had a warn at the front end which you dont which is a key difference. Lets say you did, nen the analogy would be if youre searching a house and you find a murder weapon, youre searching for the murder weapon, thats what the warrant says and its the difference between literally dripping over a bag of drugs on your way to fine the murder weapon versus finding the murder weapon and saying you know, i think im going to go look for some drugs which i cant do. Ill stop after this. In the snowden movie, he shows, you see the. I havent receive it. The screen shot of the spider web of all of these connections. Is the abuse were worried about that theres a targeting of a foreigner reasonably thought to be abroad and at what point is the american wrongfully searched in that process . Is it that information is already been pulled up by the nsa about this foreign target or is it just that theres information about this foreign target that is in a database blind and you throw the americans name in as a search item. Theyre two different concerns. Theyre both concerns and theyre theoretically distinguishable but theyre both concerns. Does that make sense . It does. Thank you. Okay. You. I dont know if you do a lot of interaction with staffers on the hill but do you see as mentioned earlier, there was kind of surprising allies. Have you talked to any of these people who have previously supported kind of these strong surveillance authorities and now have questions about it, and do you think that theyre open to kind of serious reforms that arent politically motivated. Without naming names, i think the sort of wildcard here is people who are very strong defenders of section 702 in the past such as devin nunes who is now has said things that were seemed critical of it but then he seemed to be walking a line where he wasnt so much criticizing the law but how it was used 37 but i think there are a lot of people and this is my sense from being up on the hill who republicans and democrats who voted for this law without really understanding that well what was in it. I dont fault them. I dont understand how they stay on top of everything they have to stay on top of. I think its a big problem. This is complicated under the best of circumstances. I think that they listened to people like jim baker who came in and said we need this authority and jim clearly is believes that and is acting in good faith and they said we trust you. And they granted the authority. And they didnt really know what was involved in it. I think as the deep some of the details are coming out and as theyre focusing more on it, i think theres going to be room for some of those people to say not lets get rid of 702, not that this is a travesty, not that we need a warrant anytime we target a foreigner but can we trim some of the fat around the ends of the law where is where kind of most of the risks are. Do we need the ability to get any foreigner overseas . Could we be more specific so that the stuff isnt held on to for five years or longer if the fbi looks at it and says i dont know. So i think we might see that level of engagement from some people. Thats welcome. Yeah. Bringing up the fact that im no expert but you kept mentioning that the law basically says if youre a foreigner overseas, we can target you. Willynilly. We dont have to have a reason. But as far as i understand it, theres a third component to that and thats the foreign intelligence value. Yee. So assets not just that youre a foreigner overseas but theres the third component which is the reason that were targeting you. Yeah, i did mention that. And what i said about that is it can be secondary reason. Your primary reason can be Something Else entirely but you have to have it but i dont but i dont know that thats true. There are three things you have to meet to target somebody under 702. The court has said thats true. Thats not my reading of it. Thats actually what the law says is that a significant purpose has to be the collection of foreign intelligence and the fisa court has said it doesnt have to be the primary purpose. In the compliance world, those are three things that are double and triple and queued resume checked to make sure exists. Absolutely. That there are three things. The foreign intelligence value is critical to making sure that a target is a legitimate target before you can go and collect that. And assuming that happens and thats true and its not just willynilly random mass collection of anyone who is overseas, if theres if there is incidental collection and that person really is a target, a legitimate target because theres some doinger to information thats leading us to think that 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, whatever, that is in close contact with someone we suspect is a terrorist, wouldnt you want to know that . Yeah. You want the fbi to know that. Sure. I do. Sure. I mean nothing youve said you said if we have information this person wants to do us harm. I want them to know that quickly. I dont want them to have to wait a week to get a warrant for that information. Im not disagreeing with you into but closing that backdoor, what youre calling that is the backdoor loophole or whatever. The backdoor search loophole is when you say i want to read the communication of this american, not canadian. I want to read the information of this american, this guy. I think this guy might be up to something. Im going to plug that into my database and read his email. Thats not how that system works. Yeah, it is. Youve already collected the data based on a foreign intelligence purpose but at the point they put in the u. S. Person identify fear, they can put that identifier into the database when theyre doing a routine assessment in a criminal investigation. Remember, an assessment is when they dont have a factual predicate. They can read an americans emails listen to their phone calls when they dont even have a factual basis to suspect wrongdoing let alone a foreign intelligence purpose. Thats in the Oversight Board report. Its not a conclusion im drawing. To what you said before, the foreign intelligence purpose limitation is unfortunately not that much of a elementation because of the definition of foreign intelligence. Which is not derogatory information suggesting someone means to do us harm. I would love it if that were the definition. Its any information relevant to the conduct of the Foreign Affairs of the United States. That is one of the definitions. And that includes my phone calls to my stepmother about trumps Foreign Policy. Again, im not paranoid. I agree. But it fits the doing something you know bad, you wouldnt even be on the radar. If she and i talk about the merits of nafta, is nafta Foreign Policy. I wouldnt know if they were on some list of you know okay. Im worried about what the law allows, not what is done right now. But what might be done a month from now, a year from now, ten years from now. I think we can narrow this law in a way that allows what youre talking about which is going after people who really are, who pose some harm to the United States and doing it without a warrant without reading americans phone calls without an email or having these definitions that would in fact allow conversations with my stepmother to be swept up. I dont think they are, but yes. Last question. Thanks for the talk. I just sort of i dont know disclosure. Im sort of in the camp that believes this is an Important Program but continuing reform and oversight and especially as Technology Evolves to keep remain vigilant. So i appreciate what youre doing. So my question is sort of about the more vulnerable americans. I think we often forget this. So i have friends who are Muslim Americans a few have ended up on the no fly list for no reason other than the fact that they have relatives in pakistan. This was during sort of the immediate post 9 11 paranoia. We forget this. And i have chosen a path where im more in the public eye. Im in diplomatic circles. I assume my stuff is it swept up by someone. It might be the russians and then the nsa steals it. I have to trust that the oversight and currently, i do. But i am worried about erosion. But im also a rich white guy from boston who is well educated. Im from boston. Where. Whalens. Just outside. Belmont. Ultimately, lets be honest with ourselves here. No ones coming for me. Im lucky in this society. Not everyone is that lucky. Can i tell you a story. We forget how afraid Muslim Americans are right now or christians from syria or sikhs and theyre targeted right now by fellow citizens. You know. So i write a lot about a lot of critical things about this Current Administration and i recently traveled internationally and it occurred to me on the way back that i might be one of those people whose laptops or cell phones got searched. When it wasnt, i was a little disappointed. I matte how many opeds do i have to write. Youre right. I chose that sort of public speaking and all of that. I chose that. I chose to speak out about certain issues that i know could potentially and there are lots of people including Muslim Americans including immigrants who are probably very worried and who didnt ask for any of this. And one of the harms of overcollection as opposed to one of the reasons why i dont agree with well just collect it all but have these stringent safeguards on the back end is because just the fact that have collection and the potential it could be abused causes immediate and concrete harm which is a chilling effect, not a but a measurable willing effect on the willingness of certain vulnerable populations willingness to speak freely. In the wake of the snowed. Disclosures, there was a 5 drop in that google measured in government sensitive search terms. So cia, dirty bomb, things like that. A measurable drop in people being willing to type those things into google, not other sensitive words like abortion or Something Like that but just those kinds of things. So right there thats across the population. Then Muslim Americans, i dont think their response to the 702 has been measured specifically, but the response to the nypd surveillance theres been some studies on that. Really dramatic. Really dramatic stuff in terms of declines in membership in Muslim Student associations, declines in mosque attendance. Things that should hit us just as deeply, things we should be just as afraid of as we are of you know 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 that. [ applause ] cspans washington journal live every day with news and policy issues that impact you. Coming up wednesday morning, new york republican congressman john fas so on president trumps budget, the gop agenda and efforts to combat lyme disease. Then the Virgin IslandsDemocratic DelegateStacy Plaskett on former fbi director james comeys upcoming testimony before the Senate Intelligence committee and Muslim Advocates president and executive director on president trumps proposed travel ban and the recent terrorist attack in portland. Be sure to watch cspans washington journal live at 7 00 a. M. Wednesday morning. Join the discussion. Wednesday, the Senate Intelligence committee holds a hearing on the Foreign Intelligence Surveillance Act. Witnesses includes the director of National Intelligence daniel coats, acting director of the fbi and drew mccabe nsa director Admiral Mike Rogers and the department of Justice Deputy attorney general rod rosenstein. Live coverage begins at 10 00 a. M. Eastern here on cspan3 on cspan. Org and our free cspan radio app. Thursday, well have live coverage of former fbi director comeys testimony before the Senate Intelligence committee. See it live starting at 10 00 a. M. Eastern here on cspan3 or cspan. Org. And if youre on the go, you can follow the former direct areas testimony live on our cspan radio app available free in the Apple App Store or for Android Devices available on google play. Sunday night, on after words, new America President and ceo Anne Marie Slaughter examines global networking in the digital age in her book the chess board and the web, strategies of connection in a networked world. Miss slaughter is interviewed by denis mcdonough, former white house chief of staff in the Obama Administration from 2013 to 2016. What would strike me was that we knew there was a world of states and state threats. Today if you think about north korea or iran or sometimes china and russia, that world of state to state releases is still very, very important and i think of it as the chess board world because its the world of how do we essentially beat our adversaries and we think about a move and we try to anticipate what move theyre going to make. And that world is there and its very important. But equally important is what i call the world of the web. That world of criminal networks including terrorists but also arms traffickers and drug traffickers, the world of business which increasingly big Network Supply chains, Global Corporations and the world of nongovernmental organizations. I think of all those actors as web actors as increasingly important actors but we dont have strategies for how to bring them together. Watch after words, sunday night at 9 00 p. M. Eastern on cspan2s book tv. Next a look at the challenges posed by north korea for both the u. S. And its asian allies. Korean and American Scholars looked at the political, economic and military situation and the impact of the trump presidency. The International Institute for strategic studies hosts this 90minute event