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tv   Key Capitol Hill Hearings  CSPAN  April 7, 2015 1:30pm-3:31pm EDT

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to bring about that kind of change. this is my five cent commitment to it. and now i welcome your questions. [applause] >> thank you so much. so reforming major world religion in such a fundamental way, as you describe, seems to be a huge undertaking. do you view yourself as someone who's planting the seed for change that will happen maybe decades down the road, centuries down the road? or do you think that there is some reformation some, that can take hold and happen much more quickly? >> well, first of all, i want to say of course it is going to take decades. this is a process that could take very long. i won't be around when it
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happens. i wish i were. but i won't be around when it happens. do i see any hope? yes. and i list that. i will just give awe few examples that have -- give you a few examples that caught the attention of the press. if you live in saudi arabia, you grow up saudi arabia you must have heard of this man kashkari who starts to tweet of his doubts of the prophet. because of his technology he is able to share not only with saudis but anyone who can read and write and has access to the internet in the islamic word what his doubts are. that is new, revolutionary. the internet is one, the internet is to islam, what the printing press was to the christian reformation. number two, there is an urban elite that has you know, if
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you're a in tunisia today, and your source of income was because of tourism museums, the beaches, everything, you have a vested interest in immediate and dire to keep up the tourist industry. all across what you see in the middle east is an urban elite that is muslim, may be pious in various degrees but are invested in not having sharia law applied because if sharia law is applied, they're out of a job. they can't put bread on the table. very important to learn that. there was an urban elite during the christian reformation that had an interest in reforming the church. and finally i see states, all of them, despotic, trust me, but
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these despotic states that before the arab spring found refuge only in repression are coming to understand that they have to take islamic extremism head on. i have mentioned egyptian president but the government of the u.a.e., the government of saudi arabia declared the muslim brotherhood as an entity, i mean if you know anything about the muslim brotherhood they want sharia law but they want to get it by peaceful means. and then there are groups that don't want it by peaceful means. but these government, the king of jordan, you name it, they all are feeling threatened by islamic extremism. and so, the the time is ripe, the time is ripe to say maybe
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now is when a muslim reformation will take hold and most importantly of all there are individuals who are literally risking their lives literally risking their lives to get this done. all of these combine again into a wonderful opportunity we should not miss. >> is there a an individual out there whose voice could rise above other vices and be heard to to move forward? or is there somebody that needs to emerge down the road that can make that happen? the other part of the question is what can americans do or non-muslims do to advance this cause? >> because we live in a world of order we think some individual is going to come and we're going to rally around this individual. i think if that is the line of
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thinking you take you will be disappointed. maybe, who knows. some charismatic individual will rise up and just have all muslims subscribe to a new and reformed islam hopefully with these five amendments. but i just, i really think in the world we live in it is not going to happen like that. i also want to say the nature of islam, there is no hierarchy. it is flat. all men are equal before god. now, you can see that as an advantage but you can also see it as a disadvantage because the way the islamic thing is done, you have a choice, only between obeying the leader, the imam or the mullah or the cleric, or complete anarchy. in the modern world and after having seen grass roots
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movements, i personally think it is better to invest in something more like a grass roots movement. this is all new. it is very young. and that is what the west can do. we candice crime nate who is really interested in meaningful change versus who is pretending to change things. so when i have two individuals before me, i debated a woman, linda and she sold herself and her program to the united states of america and the american government as a leader of change. as we debate, she thinks islam is perfect. if you think it is perfect out. we need to talk to the individuals within islam who are saying it is not perfect. and that's a beginning.
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and from there you ask the question, if it is imperfect then what, what do we need to do? and bring them together and then hopefully take it from there. many of them are very, very advanced and not all of them are ex-muslims. in fact most of them are not ex-muslims. some of them are clerics. some of them are in government. for me i would say what we can do and we have a vested interest in that, is to say let's empower this group of people and go about it the way we went about the soviet union. we're dealing with a ideology, a political ideology. it is religious in many ways but it is not a problem, a that is new to america and b that america can not defeat. it is that we choose not to do it. >> you made reference to isis and said that's a threat that needs to be dealt with quickly efficiently. what do you think of the u.s. approach on isis and the obama
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administration has said no boots on the ground? they want to deal in the way they're address addressing now without committing u.s. troops. is that the right approach. >> wow. i think our approach to the middle east today and i just want to use the most politically correct word that i can come up with now it is incoherent. let me just give you an example of that incoherence. we're fighting isis. alongside iran. saudi arabia and the other sunni governments are our allies. they're waging proxy war in iraq, in syria in yemen and we
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have we're sporting both of them but we're also opposing them. we're having nuclear negotiations with iran. iran is out there saying death unto america death to israel. it's not it's not that i our our policies and our approach to the middle east right now is incoherent. the middle east is in a crisis. what was called the islamic civilization is in a crisis. unfortunately millions of muslims find themselves in the grip of islamic extremism. i think we need to take a step back. we need to review our relationship with the middle east. we need to take this in a more coherent way. i don't think i can influence that.
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but whatever we do, whatever the next presidential candidate does, whatever the next administration does, whatever congress does, you will have a number of policies on the table that americans are comfort comfortably with. there will be military diplomatic. what is uncomfortable with islamic extremism, we're dealing with an ideology. i still think we haven't made any effort to invest in persuading myriads of people that a vision to it organize society around maria law is the wrong way to go -- sharia law. that we have an alternative. if you look at what the islamic extremists are say about america in their writings to the muslim
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people. it is stereotypes like america is greedy. america just wants to come and take your oil. america is supporting despots to feed their consumerism. what we don't tell or don't highlight, and i wish we would is what america really is about. in covering isis, and you look at the number of people that islamic state beheaded or killed, we saw the journalists. it was easy for the leaders of isis to tell the muslim world these guys were spies so they deserved to be beheaded. there was a young woman from arizona, who went there probably against the advice of her parents, to help the people of syria and they killed her.
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that is something that is an aspect about america that i would like to advertise to the rest of the world to say how many american volunteers are there across the world, selflessly trying to help people in turmoil? how much money do we spend? you know a lot of americans will think that would be boasting this and that but that is america. that is something about america that local people know. and that's the story that we don't tell them. when we have a confrontation within america, about the situation of the gays, the blacks female emancipation, all that in an open society people will only take one side of the story and apply it to the american stereotype which is
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monsters. what our government fails to do, and what our society fails to do we're the most philanthropic nation in the world. that our youth are the most generous. they don't only give money. they give their time and maybe even their lives. that we're the most innovative world. i spent some time with silicon valley people. they go all over the place trying to innovate and invent the solutions to the problems of water shortage. the middle east is facing, it is not the sectarian war. that is one problem. it is a big problem but pretty soon there will be faced with a water shortage problem. if that is solved, who is doing it? it is americans. i think we need to sell ourselves. it is not selling but to inform. it is a campaign of information to inform ordinary muslims what america is really about and not stereotypes. >> you referenced in your speech
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the obama administration's use of the word, violent extremism, to describe the threat. questioner asks, why you think that the administration wants to stick to that terminology? obviously you do not. but if the goal of the administration is to not encourage discrimination against the millions of peaceful muslims out there, is that really a bad goal? >> well, first of all it is this administration. it was the last administration and the administration before that and administration before that and probably most of western governments which is we, the united states of america and the rest of the western world, we are not at war with islam. there are people who are using islam as a religion and taking the lead and who are at war with us. that is a different story. but we're not at war with them. what the american government wants to do over and over again
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is convince muslims whether they're here again or abroad, we're not at war with you. if we were, the circumstances would be very different. i'm going to leave that to your imagination. we're not at war with islam. and i think it demonstrates a sense of restraint. we can be and we're not. here is what frustrates me. we're not seeing necessary reciprocity. and i'm not talking about ordinary people. but allies, like the government of saudi arabia. we give them a finger. they take a whole hand. analyze the negotiations with iran. the more we give, the more they take. and i think in this kind of negotiating context you would want to see the united states
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united states of america put its foot down. it doesn't mean to go to war but negotiate differently. i don't care if the president calls it violent extremism or, you know mixed salad. i don't care. that is how governments operate anyway. it is a whole bunch of things we're supposed to agree to. it is in the nature of democratic government to euphemisms for controversial issues. i don't care what he calls it. what i care about is the policy outcomes. if our president picks up the phone and calls the kingdom of saudi arabia about a gentleman who is going to get a thousand lashes and he ends up being lashed, then i think that at the
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most powerful country in the world, we are being taken for a ride. these negotiations about whether iran is going to have a bomb or not, again, i will leave that to the experts. but the way it's going i feel like we're just giving too much. and a lot of people think it is just this president. i'm actually pessimistic. i don't know if it is just this president. it could be the next and the next. it is not if western society finds itself in big trouble it's not because islam is stronger or destructive or because china is strong or destructive. it is because we're no longer confident in what we are about and what we in.
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dbelieve in. [applause] >> some much your critics said your criticism of islam crosses the line. so the council on american islamic relations about a year ago, when they wrote brandeis university said thaw practiced religious prejudice and that honoring you would be similar to awarding white supremacists or anti-semites. brandeis withdrew plans to give you an honorary degree a year ago. how do you respond to this group's suggestion that you're criticism of islam is amounting to prejudice and intolerance? >> i just want to highlight that they have a hidden again today and that hidden agenda has been made manifest by a woman called romani. who was a journfallist for the "the washington post." and she wrote a wonderful essay on the honor brigade which the
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council of american islamic relations is one. and, she wrote this in january of this year, 16, january. i like you all to read it. you know how it all works. i think it is unfortunate that brandise submitted to this. that they caved in. but it is not only brandise. it is governments. it is the press. it is, the so many of our institutions who have been taken in by the honor brigade. as the press community, i really would urge you to take that essay and read it because it gives a wonderful answer to the question you are all asking. why is it so hard to criticize islam? read romani "washington post," 16 january this year.
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>> okay, you have said that the muslims are responsible for majority of violence in the world. 70% was one percentage quote. i think that is maybe that changed. in any event it was responsible for majority of violence. this questioner says, does this excuse the u.s. government in contributing at all to the violence in the middle east and questioner cites the iraq invasion? so has the west played a role in increasing violence? >> see, the thing about the iraq invasion is, if i want to use the iraq invasion and iraq policies as an excuse for the emergence of isis and for al qaeda and for the crisis that islam is in, then that's one thing. if you want to use it the iraq
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invasion in that way, then i will take a person who is putting iraq invasion on the table right now to discuss how can we stop isis and islam extremism, just wants to shut down debate. of course there are policies, american policies, european policies western policies. and i really think that it is extremely important and it happens all the time, to analyze our own policies, rework them, review them, and change them but, i have been following this since 2001. what i have seen is, the debate in the united states of america about its foreign policy is, robust and whichever way you want to pull it, the people of america have a say in it. the people of china do not have a say in their foreign policy. the in the muslim world people don't have a say in their
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domestic or foreign policies. and so, on so forth. please don't allow don't allow these despots when you start to talk about their human rights records and domestic policies records and their foreign policies records don't allow them to use american and israeli policies as an excuse to change the subject. [applause] >> a couple questioners want to drill down a little more deeply on the ideas you expressed. one says, violence in the name of islam is endemic but where is the problem? is it the religion itself or is it the practice by some of today's muslims? and another questioner says, is, is islam not only a religion, is it not only a because of religion but a combination of
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religion legal system, political system, military philosophy, social system and maybe more? >> pick up heretic why islam needs reformation now, thank you. >> you mentioned the recent terrible attack. in the united states do you think that there's likelihood of seeing some of those devastating type attacks? or do you think that the homeland security and other governments have largely taken the necessary protections? >> homeland security, the fbi, the cia all of our agencies have done a remarkable job, remarkable and wonderful job. i really think you need to applaud them. we need to applaud them. we in the united states of america have said we're not going to let this happen again
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ever. some instances have taken place. there have been, you know, policies that were calling what happened at fort hood in 2009, you know, you have a member of the military who kills other members of the military because he is not loyal to our military but he is loyal to something else. calling that workplace violence. that generates just bad will. it is, we shouldn't have done that. but if you, you know, from 2001 until now, if you evaluate, say we spent trillions and trillions of dollars not to have an incident like 9/11 ever, happen here again, but what kind of a guaranty do we have that it won't happen again? we know that. there is the determination, the will, the enemy has these resources. they tell us what, they try and they try and they try again.
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and we foil and we foil and we foil every attempt. if they succeed at one attempt, we and they, they have done, you know, they have never had anything as spectacular as 9/11, we'll be upset and sad. but i'm confident that we're not taking them on, spending all of that money is we're being reactive. we try something. we try something. we try to stop it. they try something else, we try to stop it. we're not taking them on in the battle of ideas. that is what this book is about. if we bring about public diplomacy as we used to do in the cold war, we engage that way, so more mecca muslims go to our side instead of medina muslims and join reformists. that is where we really defeat
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them and it is much evener. -- cheaper. >> we're almost out of time but before i ask the last question i want to remind everyone about upcoming speakers. ban ki-moon secretary-general of the united nations will speak on april 16th. navy secretary ray mabis will address the club on april 30th. and vince surf, chief internet evangelist for google and a father of the internet will speak on may fourth. i would now like to present our guest with the traditional national press club mug. we've been talking about a lot of heavy things today but when you enjoy a quiet moment, this is a wonderful way to have a beverage. [applause] >> thank you. >> our final question, i just wanted you we just have a
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couple minutes left. you had renounced islam and said you're an atheist. do you think that's where your firmly entrenched or how do you think of your, you know, spirituality evolving from where it has been and where is it going and is this where it is going to stay? >> i think my spirituality is just fine. [laughing] but i just, i just want to take this moment on the question of spirituality to share with you that religions are different. i've been promoting this book now for the last two weeks and you've probably seen my conversation with jon stewart and others. it always goes to but is
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christianity any different from islam? and my observation is yes, christianity is different from islam. judaism is different from islam. these two religions gone through a process of reformation. that will not say that i am converting to them. but i want to make it clear that the christian god in 2015 is different from the muslim god in 2015. and, the worst thing that a christian has ever said to me, the rudest thing that a christian ever said to me, thing that made me most uncomfortable that a christian said to me, i'm going to pray for you. i hope you will be safe. i hope you will be redeemed. but within my own family and my own community, and when i say
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you know what? i'm in doubt about the koran and muhammad and life after death and all that. it is, well you are to die. so i just want to point out that the differences between the religions. you can mockeries at this anty and judaism as much as you like you can't say a thing about islam. what makes me angry the moral equivalence. the moral equivalence. now religion give us faith in the future, hope in the future and my hope and faith in the future is that one day, one day, islam and muslims will become so civilized and so peaceful and so tolerant as christian -- and judaism. i know that is controversial but i will leave it at that. [applause] >> a round of applause for our
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speaker please. [applause] . .
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[inaudible conversations] >> when you raise your hand and took the oath of office what were your mom and dad thinking? >> i knew my mom would be crying and my dad was proud. it was funny my dad is 82 years old and he showed up. he usually walks with a cane and he showed up and he didn't have his cane. i said dad, do i need to run to your hotel and get your cane and he goes, he straightens up real stiff and he says i'm in the capital. i don't meet again today. he went without his cane for the entire day so i know they were
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super proud. >> they want somebody who looks like he has stood up for them. i am amazed now to the degree to which primary voters on both sides are motivated by resentment and the sense of being put upon. and you know those people really don't understand us and here's a guy who does understand us and he's going to stick it to them.
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that happens on both sides. hillary clinton will give her own version of that kind of thing. and i don't think that was actually true 30 years ago. i mean resentment has always been part of politics obviously but to the degree to which is almost exclusively the motivating factor and truly committed republicans and democrats. >> surely hear on c-span2 they plan to take you live to the pentagon to hear from the commander u.s. militant command admiral william gortney who will be greeting reporters there. we will have it lied when he gets underway but until then part of today's "washington journal." >> senator rhambo ready to announce his run for the presidency in 2016, sheila krumholz to talk about the
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fund-raising guidelines. senator rand paul in kentucky at noon eastern time will be officially announcing his bid. what federal guidelines fall into place once you officially announce? >> guest: well once they have declared their candidacy, they must begin fund-raising in a limited amount and they must be ready to report that in the quarterly reports in the pre-general reports. so that is a given but that what is i think little understood is that even before they officially declare their candidacy, they may in fact be candidates in the eyes of the federal election commission. so this is a very kind of uncertain period where people aren't exactly sure of their role but there are very clear rules and the candidates are kind of being squishy about following them right now. >> host: what is the advantage i guess of senator ted cruz last
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weekend marco rubio next week that some are saying i'm going to wait. i'm going to wait. what are the advantages and disadvantages about when it comes to fund-raising? >> guest: what they are trying to do is time it such that they are able to raise money and build support collect endorsements outside of the scrutiny of the press and public which will, the launch of their campaign and wait until after the first quarter is over so then they have a full quarter to really hone in on fund-raising and to come out but the biggest they can with their first report. the ford they declare what are the rules for how much they can raise and what they have to declare versus after they are officially announced what is the distinction there? >> guest: the period right before they declare i will refer to as the testing the waters
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period and this is where a would be potential hopeful is determining the feasibility of a candidacy and this is not just this is an actual term with the federal election commission and they are looking for a sign that the candidate is conduct in activities that would indicate they are indeed testing testing the waters like polling, like making calls to supporters doing some travel. these are things that don't necessarily trigger the threshold of becoming an actual official candidate but they do require this testing the waters raising funds in limited amounts which in this cycle are 27 at the dollars per donor per elections of 2700 for the primary and 2700 for the general. if of course somebody is testing the waters they are really not so serious about it and they
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don't end up running, it doesn't really matter how much money they have accepted from people because they are not a candidate so i think if i never register as a candidate and there's nothing to report. but at the point of which i am testing the waters, all of those contributions must be in limited amounts and openly disclosed to the federal election commission. >> host: here's a "washington post" editorial from last week mocking the law. a dark money cloud looms over the fledgling presidential campaign and they write the federal election commission has established rules for those in the testing the water phase but before or simply skirting the rules by saying they are not really testing the waters. those named in the complaints are former florida governor jeb bush republican, former maryland governor martin o'malley the government -- governor former senator rick santorum and former governor
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scott walker. they say they're mocking the law. they say they are not doing anything wrong. what's going on here? >> guest: i think the "washington post" deciding first of all the nonpartisan campaign legal center's complaint the federal election commission that these candidates are indeed flouting the intent of the law. they are dodging the rules so they can -- they are saying that they are not and they're kind of going through lots of verbal gymnastics to avoid things that their candidates and sometimes having to walk statements back because of fear that the sec might enforce this rule but what they are doing is trying to raise these unlimited funds from unlimited sources for their super pacs which in some cases they have themselves established and this would be impossible. it it would be not permitted where they indeed testing the
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waters are officially a candidate. so they are trying to again act like candidates in terms of fund-raising, in terms of outreach to the public comic getting people excited and building momentum for their campaign that they are making jokes about wealthy sec is watching so i can't really be a candidate. this allows them to go after those mega-donors during this critical period. >> host: and bring in as much as they can from these donors donors with no cap and no limit on how much somebody can give them? >> guest: absolutely no limit and this is precisely what the concern is, that there is the citizens united ruling depends on these outside groups to be fully independent of the candidates and to disclose those donations and in fact be our candidates for all intensive purposes and they are very
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closely related with the super pacs which ultimately will have to be as independent as them but meanwhile they will have raised tens of hundreds of millions of dollars. >> host: we are with sheila krumholz talking about fund-raising 2016 candidacies those that are eyeing the white house. what are they obligated to do? >> you can watch all of today's "washington journal" on line at c-span.org. let's take you live now to the pentagon to hear from the commander of u.s. northcom william gortney. >> what the taxpayers of them at the millions of dollars. some critics still say it doesn't really work and it will never work. how would you describe the capability of national missile defenses if a nation like north korea or iran were to launch a missile against the united states? >> yes, as a person that owns the trigger i don't maintain it
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in it's designed by admiral searing and the missile defense by on the trigger on this and i have high confidence that it will work against north korea. you know it was designed to defend against nations that might not be deterred in other ways and that would clearly be north korea in that regard. we are very concerned about the mobile nature that we would lose our ability to get the indication that something might occur and of course the particular nature of the regime that's their trade but i have high confidence in its ability. it's well-documented the fits and starts that a tad getting to where it is and admiral searing his priorities are absolutely correct which are to first off we need to improve our sensors, or discrimination sensors so that we have high
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confidence to be able to detect the center in space. the next pieces we need to improve the lethality of the kill vehicles and the next one is to take care and upgrade and maintain that which we have as best as we possibly can. and that can be done concurrently. they all have to be put in place and the next step that he needs to go after is when it comes to ballistic missile defense we are on the wrong side of the cost curve. we are shooting down not very expensive rockets with very expensive rockets and we need to look at the entire kill chain of these ballistic missiles and through kinetic or non-kinetic means and deterrents keep the monorail. we need to be able to start knocking them down in the boost phase and just after that not just rely on the midcourse phase where we are today. very expensive so admiral searing has put in the necessary investments where in some
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technologies that we think will bear out to make it to wear me to go. those technologies are not just for the ballistic missile defense against the homeland but also the theater in some sense that we need to do as well. very expensive proposition and i think with those right investments in those technologies paying off we can get on the correct side of the cost her. >> sometime in the future iran were to develop the capability to threaten the united states with a long-range missile are you confident at that point that the u.s. would have an effective defense? >> based on our assessment where outpacing the threat and that's why it's important the effects of sequestration will be hard on the missile defense agency. when it comes to the sequestration the services delays new capability and the other place it impacts the services is a comes out of readiness. it's the only place you can generate the money.
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the missile defense agency doesn't have a readiness account large enough to cover the sequestration cuts so the way those key technologies and improvement of the long-range discrimination radar and the advanced kill vehicle it will delay those and prevent us from outpacing the threat. our concern is maintaining the investment to outpace the threat threat. >> i want to go back to that is second. a couple of weeks ago you said in your testimony it's going to complicate our ability to provide warning against an attack. how is this road mobile nature different than a fixed launch? >> is a relocatable target and it's their relocatable targets that really impedes their ability to fly and finish the threat trade so it's the targets move around and if we don't have the persistent isr which we do not have over north korea at this time that relocatable
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nature makes it very difficult for us to be able to counter it. that said should one get airborne and come at us i'm confident will be able to knock it down. >> yesterday and previewing he mentioned moving assets over to to -- to more aegis defense -- defense vessels part of your way to mitigate the potential threat to? >> we are setting up the second to be two in japan which reduces the reliance on ages a little bit trade but the ballistic missile defense system it's all of the sensors whether space-based architecture as well and are kill vehicles are in vanderburgh and fort greeley in alaska. [inaudible] >> that i will have to get back to you. we send we assess that is
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operational. we assess that is operational today. and so we practiced to go against that. >> i have a question about -- as we know the secretary said according to deputies media and new histories going to show the evidence of the u.s. p.o.w.s during world war ii about eight victims that were captured by soldiers when their b-29 bomber attacked during world war ii. so any comments on that? >> i'm not familiar with that story maam, i'm sorry. >> the defense secretary in japan talks about defense issues. are they going to talk about any future issues? >> on any of those issues i'm not briefed on what he's going to be talking about. >> the air force needs radar for homeland defense. i was wondering where he stands with this and.
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where do things stand at this and why it is radar needed right now to put those upgrades in their case program? >> i actually submitted that urgent need first for the national capital region. we have some boxes. we have airplanes we should be able to marry them up. you know it goes against the cruise missile threat that's out there. i have been defending against the christmas will sense the threats since i was a lieutenant jg on the uss nimitz and i've shot over 1300 cruise missiles so i know how effective they are and how hard they are to shoot downs of you need a system of system in order to do that and when it comes to the airborne piece of that you need the capabilities that the radar can give you to that. but it's only a single piece. it's also the jaylen's where testing in aberdeen and it's
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also being able to nest that with our ages better off the coast so we can track and share data and have our best opportunity to shoot down any of the leakers that might be out there. the best way to defeat the cruise missile threat is to shoot down the archer or sink the archer that's out there. that is what we need to be able to do is to start like the ballistic missile defense start knocking down the archers at range and we are all link dealing with fewer missiles as they come at you. >> is there a timeline on that? >> will we have the first set of the systems in the national capital region. i hold great hope that jaylen's is going to bear out. it's had a bit of difficulty right now early in its test phase as we expect in our test phases but is not something that's insurmountable and nesting with our offshore capability as well as aegis. again it's a system of systems that you need to defeat that
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sort of a threat. >> several years back the northcom moved a lot of his command at peterson air force base however in the last week there was a 700 bullion dollar contract for activities at the mountain. has there have been any change in the status and you know what that 700 million is going for? >> because of the very nature of the way that cheyenne mountain is built it wasn't designed to be that way but the way it was constructed make it that way so there is a lot of movement to put capability into cheyenne mountain and to be able to communicate in there. that is what the contract is for. we have the space for it. my primary concern is are we going to have the space inside the mountain for everybody who wants to move it in there and i'm not at liberty to discuss who is moving in there but we do have the capability.
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it goes to the very nature of an emp threat i think. that capability that we need to be a micromagnetic pulse, being able to sustain those sorts of capabilities, our ability to communicate things of that nature and an emp and barman support. >> is the operation so going to want peterson? >> absolutely we command where the staff isn't removed between both locations so that we can coop should we need to with norad the northcom. we will maintain both. >> just a follow-up on that question. how soon are you looking to move some of those capabilities into that complex? >> it happened long before i got there. the people are moving in their and so it was decisions from my predecessor and i support those decisions. and we will make sure it gets in there and it's all secure. >> let's go back to missile defense for a moment.
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i was at the pentagon for a long time and went away and i came back and when i came back in 2008 the airborne laser and the sea-based expand radar were being touted as really significant technological advancements. i came back to the pentagon again and discovered that one laser was killed and expand radar doesn't seem to be -- have worked out. are we wasting a lot of money and we are trying to develop missile defenses on technology that turns out that it doesn't really work? >> you know as i understand it the deficiencies in some of the programs as the system was developed, as we were putting -- as we were putting in capability before we had properly tested it i hate to say it is what it is. that's not the way we are progressing today. the necessary improvements and where we are going that admiral
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syring is doing at india gate that we test before we -- test the fly do it in the proper order i think is absolutely critical. now some of the decisions we are living with that occurred three or four years ago, but that's not the way admiral syring and mda is moving forward today. some of those capabilities you know what airborne laser now as the technology has advanced holds great promise for us provided we do it in a methodical and a thoughtful manner. we don't try to put it out there before we know it's going to work for certain so we don't make the same mistakes again. >> going back to north korea, is it your assessment that they have developed the capability to miniaturize a nuclear warhead and put it on a ballistic missile? >> our assessment is that they have the ability to put it on a nuclear weapon and shoot it on
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the homeland and that is the way we think that is our assessment of the process. we haven't seen them test it yet and we are waiting to do that but it doesn't necessarily mean they will fly it before they tested. >> in that situation you don't have a choice. could not in the future as the commander in your position lip with the idea of another country say iran that would have the ability to put a nuke leer device on top of the missile? >> our system is designed for north korea and if we get our assessment wrong for iran. it is able to defend the nation against both of those particular threats today read our investments are to make sure that they outpaced the capability should say in the case of iran which we don't think they have the capability today but what if we got that until wrong in a move that delivery capability to the left. even if they moved it today he could defend the nation with what we have today. >> admiralty u.s. assessment
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that north korea has succeeded in miniaturizing a warhead to put on the icm? >> we assess that they have the ability to do that, yes sir and now we have not seen them do that. we have not seen them test that but i don't think the american people want us to there are some things that they want to make sure we edge on the side of conservatism to make sure we get it right. >> is that what it is an overabundance of caution as opposed to any evidence that they have the ability? >> i think it's a prudent decision by my assessment of the threat of a threat to the nation. i think it's a prudent decision. >> is this relatively new? >> i'm going to have to get back to on that is to win the i see the intel community may be assessment. >> when you came and you came into an icy assessment is that they believe that north korea has the capability to miniaturize a warhead and put it on the kno-8. >> that's correct but when that decision, was that last year or two years ago?
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>> in the back. >> the chinese has not developed a new capability of a ballistic missile. to what extent are you concerned about the chinese. [inaudible] >> well, they have put to sea their sea launched ballistic missiles submarines. we believe they have three in the water right now. you know any time a nation has developed nuclear weapons and delivery platforms that can range in their homeland is a concern of mine. so it's not a surprise that genre has taken their fixed sites and rogue mobile sites now into a sea launched ballistic missiles. it doesn't surprise me that they are doing it.
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we do the same thing. we have done that for years so it doesn't surprise me that they are doing that. china does have a no first use policy which gives me a little bit of the good news picture there. next question. >> follow-up. how close do some of those boats including attack let's get to the united states? >> we watch them very carefully and the long-range capability is a function of how far did they reach. even from their own waters they can reach part of our homeland and hawaii is part of our homeland. the farther east they go they can reach more of our nation. >> and they take them to arrange where they can't strike the west coast of the united states? >> we haven't seen those patrols but it doesn't mean those patrols can exist in the future. >> and the surface ships, are they getting close to our
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shores? >> i am stepping out of my lane here just a little bit as i track our warships. we have two russian warships but i'm not sure about the chinese. they had a visit last year in san diego i believe that i'm out of my lane here on that. >> can you talk about the russian ships? those two russian ships you just mentioned. >> they are ag and intel platform as well as a logistics ship and i believe one of them is just coming out of venezuela and. i'm going to have to get that for you but the united states and cuba and places elsewhere. >> in the past couple of months you have expressed a desire for some sort of new -- for maritime vessels in that kind of thing.
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can you give us what you are looking for in the time limits? >> wealthy due line, the air defense radar that we maintain on the northern canada and the canada-u.s. border are in a few years i would say 10 years i think is the number we are going to reach a point of obsolescence and we will have to reinvest for that capability. the question is what sort of technology do we want to use to reconstitute a capability? we don't want to put in the same sorts of sensors because they are not effective against the cruise missiles. they can't see over the horizon so another question is what is the technology that's going to work up there as an over the horizon radar system that would work but it has challenges in the arctic. so those are the questions we are asking the community. i don't think we have a
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timetable just yet. we are just now bringing up there are policy leaders as well as with the canadian government. >> one or two more here. you said they were going to begin long-range bomber patrols on the gulf of mexico. have you seen any indication that they are preparing to conduct patrols? >> the one that we would expect are there blackjack bombers, not the bears but we see them flying elsewhere. but it wouldn't surprise me that they do that. we are prepared for it to intercept them should we need to, should we choose to. >> u.s. officials were saying it didn't make any sense to conduct patrols down there because he would take so long to get there and you would go past the whole united states military to get there. you would have the element of surprise. >> you know, i think if you have
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long-range aircraft you want to exercise them and in order to exercise them you need to fly long-range missions. >> is this doing it during the spring summer season? >> it wouldn't surprise me. it wouldn't surprise me. it goes to the question asked before they are messaging us that they have a long-range conventional reach or nuclear reach with their bombers. we do the same sorts of things with aircraft and with our ships. so it wouldn't surprise me if they did. >> related on that the past couple of days to air force b-52s flew round-trip missions to the north pole in the north sea. what message were you trying to send? >> actually was there on exercise program with one of the bombers themselves the due that long-range mission and for us with u.s.-canada and our nato allies to do those intercepts along there.
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poehler grau was the name of exercise and it was a very successful exercise. in the back said. >> two unrelated questions, the same notion notion. there has been concern on the hill about the threat that isis fighters might want to infiltrate. is that a legitimate concern and the other question has to do with the east coast the idea of the east coast-based interceptors. is that a good idea or is that just a waste of money? >> okay, the first one is i don't believe that it's isil that we have to worry about infiltrating through our southern approaches. they are using they are a threat to us because they are using a sophisticated social media campaign to incite american citizens to do harm against american and canadian citizens. that is how they are trying to attack us in that regard through that very sophisticated social media campaign.
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however those same scenes that are out there between the combatant commanders or interagency workers and the countries to our south in the seams within their countries enemy if you find your seems you will find your enemy and that enemy will exploit those seams. they are going to move through those seams with people drugs money weapons or something even greater. they will move it -- but they are just moving product through there and that's why we look so hard trying to close the seams with their home in partnerships and the other geographic combatant commanders. as far as the east coast missile site, if i had one more dollar for ballistic missile defense i wouldn't put it against the east coast missile site. i would put it against those technologies that allow us to get to the correct side of the cost curve and the ballistic missile defense and again that's not only theater ballistic missile defense of the homeland missile listed defense. you know it's a proliferating threat. it is rolling.
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countries are developing those capabilities. they can threaten their neighbors with power projection with that and our current approach has us on the wrong side of that cost her so i take those dollars and invested in those necessary technologies to start not just relying on the endgame but the end course. i can take one more. >> on a completely different subject, the loss of sea ice in the arctic what security issues does that raise as we see that whole area changing? >> that's part of what we are going to be reporting out the necessary threats. the reality is that the sea ice is melting. the arctic and the arctic shelf is getting smaller. that said it's still a very inhospitable place and today if we want to go out there we don't have the ability to reliably navigate, communicate and sustain ourselves out there so
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that's huge investments for the services to figure out how to do that and when do we need to lay those investments and to be able to communicate, navigate and sustain. for four week and communicate a navigate we have to do the sustainment. we have to supply ourselves. it's three times as expensive and it takes three times as long to put anything up there in the arctic trade it's very harsh place. we are seeing more intermodal traffic from ships that are going in there about we have worked with the shipping industry and the major shipping companies and they are not really interested. they need ships that can make them money brand of 50 days out of your neck can't rely on a particular period of time. they need to move large numbers of containers and a large number of crude or liquid natural gas that happens to be out there. the reality is there's going to be more more activity up there and is actually more dangerous today than when we had a stable shelf. so that is what we are looking forward to reporting that after the spring. >> with russia do we have to worry about the race with them?
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>> i don't see it as a race but the strategic importance of the arctic the strategic importance of alaska. it's all about location. we have f-22's in alaska and we can deploy them around the world quicker than we can from langley because of the strategic location in alaska. so i think as we look forward its a reawakening of the strategic importance of the arctic and how are we going to operate up there. thank you. >> thank you.
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>> host: what do you remember about your time in the military? >> guest: just the friends i made and the friends i lost. i got to serve with some of the -- sorry. i served with some great men and you know i don't think i would be surrounded by people that great again. >> host: what did they teach you? guest of a tummy about humility. my friends taught me about really being there for each other and the marines taught me
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about discipline and organization but that was the marine corps. the marines i served with top me about what it really means to care about another human being that you are not related to and what you are willing to do to keep them alive. >> welcome everyone. good morning. thank you all for being here. it a special thanks to the
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criminal law practice and are particularly for all the behind the scenes work to make this happen. i'm going to do brief introduction so we can get right into the meat of our panel. all the way you also have longer bios on the alternate pages attached to the agenda for today. all the way to my far right we have catherine crump loses his assistant professor and assistant clinical professor and associate director of the samuelson law and technology of public policy clinic at berkeley. she's also a former staff attorney at the aclu for nine years. next to her we have erick winger who is the director of cybersecurity and privacy at cisco global affairs division here in d.c.. also former counsel at microsoft. to his left, my right is liza goguen. she is the codirector of the national security project at the brennan center also a former
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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 we are particularly excited to have him here to talk about the technological aspects of all of this. so i'm going to remind us of what we all know know that there has been a tectonic shift in the way data is collected is stored in the ways in which we communicate over the past 10 or 15 years. so our panel is going to explore the implications of that both what has happened and what that means for the law and for policy policy. i'm going to run this as a moderated discussion so 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. so i'm going to start with joseph and i want my questions about the underlying technology just to lay out what has happened. what have we seen? what has changed in the past 10, 15 or 20 years and what is a
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world we are living in now? >> thank you for having me and organizing this event. to put it simply surveillance and collecting data about individuals that are targeted for and investigation are not targeted for investigation has simply poland extraordinarily. surveillance is gone from passive collection to increasingly active types of collection. i will describe what i'm talking about their and then from target to increasingly bold forms of collection 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 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 traditional eavesdropping where someone is
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communicating and you sit there and you capture the stuff and you analyze it to their. with the sword 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 are dissipating and these 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 on line with your bank or something you will see a little lock in a web browser. that's basically saying this is an encrypted transmission. it means if someone were to eavesdrop on it looks like gobbledygook. not only that but it's authenticated. when someone vouches that this is your bank and thanks go to great lengths to make sure that is the case there's something called the man in the middle attack where say catherine on the end of my phone is trying to communicate with me and we will use liza here.
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liza wants to intercept or her medications. what happens is cap and can send a signal into ether and liza can essentially pretend like she's mean 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 medications but what they can modify or the credentials sent to undermine your ability to engage in confidential and confidential communications that have underlying integrity semiconductor change. not only that but we have seen this weapon i spy 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 don't know a lot of details about this stuff. it often comes up in powerpoint from the nsa. essentially this is something
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that's 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 you're 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 it's not doing this to everyone all the time. there is other stuff they're doing terminal to time and that's what i mean when it's gone from target of surveillance increasingly bold. a good example of this is the muscular program. muscular is. maybe i can shout it. the muscular program was one revealed where nsa was essentially overseeing tapping the data leaks between yahoo! and google data centers. these are the private networks between these data centers taking all the information that was sent over those links.
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it's a lot of information and when yahoo! push have an update to its internal file system storage, the way they store data they had to sink this back and nsa had to turn it off because they were getting essentially all the stuff from everyone all at once in a day or a few weeks. that is decidedly bulked and the first thing we learned about from the revelations of the metadata program it was shocking to a lot of us when they realize that some amazingly large 99.9 something fraction of these people are entirely innocent in their data is being collected. i like to say the nsa and its partners were converts to what we call "-begin-double-quote for history caught up to that stuff. they were basically collecting all of the hay in the haystack to get access to all the needles in the haystack. finally this kind of surveillance is gone from sort of relatively unintrusive. part of this is -- has evolved so going from relatively
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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 i'm using to look at my notes right now are vastly more complex and capable read 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 medevaced with a look at these phone numbers and can be implicated once you have everyone's phone number calling records and then their other things like cohort analysis where people on the same train with 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 there's a big opportunity for what we call false positives identifying someone for suspicion when we shouldn't have a suspicion. the last thing i will mention this when we get to when we
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talk about less intrusive and increasingly intrusive we are starting to see very sophisticated subversion of hardware and software. some of these things are a tax on what we call keying material as technical folks. these are the encryption key is to make sure that all the things you do can be modified in transit and eavesdrop on while you are communicating. i think this is especially cute cute -- acute in the case with cisco and erikson talk more about this. apparently the nsa is doing this stuff where when someone orders product's and specifically cisco products because they send a lot of routers and servers chokepoint computers that control a lot of communications around the world to 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 choked and communications technologies that are being subverted technically which
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means the same kinds of concerns you may have heard about with a backdoor 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 it's also important to the businesses that require this trust to sell these products and to put this really good stuff out there. i know particularly 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 sense of the personal and medical and financial information. we don't want to see that leveraged for bad uses such such as organized crimes are things like that. i think i'll stop there. one announcement for those of you watching on line there will be a question-and-answer session and you can e-mail your questions to nact up questions that gml.com and we will get to
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the mall but just so you can start thinking about that for those watching on line payday wants 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? >> thanks very much for the washington college of law for roasting this event in having me participate. i think it's pretty clear technology has made it much easier for the government to collect americans information in massive amounts come even programs that are not only targeted overseas are likely to sweep and a huge amount of americans data either inadvertently or as they say incidentally. so the logical response to this would be to fortify the protections, the privacy protections for americans in the law but the law has evolved and exactly the opposite direction and indeed since 9/11 there has been a sea change in the law. if you back up a few decades
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following the church committee's revelations in 1970s there was a series of laws and policies put in place that establish a kind of golden rule. intelligence agencies could not collect information on americans from within the united states without some individualized batch-based suspicion of wrongdoing. now the purpose and the effect of this rule was to constrain the abuses that have come before it. in the past 14 years a cardinal principle has been utterly jettisoned from the law. so let's talk about the three legal authorities that we know of under which mass surveillance is currently occurring. the first is section 215 of the patriot act. this is the provision that allows the government to get a fisa court order compelling companies to turnover business records in foreign intelligence investigations and use phone records, financial records hotel records and the like trade
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before 9/11 the government had to demonstrate to the fisa court that the subject of these records was a foreign power or an agent of a foreign power. that is defined in the case of an american in a way that necessarily involves some element of criminal activity. congress amended the law through the patriot act so that the government doesn't have to show anything about the subject of the records rather the government just has to show that the records themselves are relevant to the investigation. now relevance as we all know is a very low standard rate this still seems to preserve some level of individualized review. but in fact as we now know the fisa courts interpreted this provision to allow double collection of essentially all americans telephone records on the bizarre theory that millions and millions of totally irrelevant records can be considered relevant if there are
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relevant records buried within them. now this is a very dangerous interpretation because there are a lot of other information collection statutes out there that use the standards and who knows how they are going to be interpreted in the future. with this program we have moved from individualized suspicion of likely criminality to no individualized showing of anything. the second program is section 702 of the fisa amendments act which relates to the collection of communications content from calls and e-mails between americans and foreigners overseas. until quite recently, just a few years ago with the government wanted to collect such communications, data show probable cause to the fisa court that the target of the communication, i'm sorry the target of the surveillance was a foreign power or its agent and again at the target was the american -- it had to involve
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some level of criminality so this was for surveillance occurring within the united states. in 2007 and again in 2008 congress amended the law to get rid of any requirement for an individualized court order when the government acting within the united states collects communications between an american and a foreign target for foreign intelligence purposes. moreover the target no longer has to be a foreign power or an agent of a foreign power. the target only has to be antiforeigner abroad. the role of the fisa court is limited to approving the broad procedures for targeting which is how the government figures out whether the target is actually a foreigner or overseas, not so easy in the digital era and minimization which has been construed to mean that the information about america on one end of the communication should the deleted or master thrown away after some
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period of time which is usually five years. it could be more and there's a laundry list of exceptions to allow information about americans to be retained and used. so again we have moved from essentially something that was pretty much a warrant to mass collection with no suspicion of wrongdoing. finally there is the collection of signals intelligence. that's communications and metadata that occurs from overseas under executive order 12333. this is by far the most expansive of the government's foreign intelligence surveillance authorities. it's also kind of a different bucket from the other two because there was never golden rule. there was never any individualized suspicion required because this was supposedly surveillance of foreigners overseas and these people supposedly had no constitutional rights so now toward involvement. the executive order basically allowed agencies to collect foreign intelligence which was defined, which is defined as
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pretty much any information about any foreign person or any foreign entity and they can do so without any traditional involvement. there is a provision in the executive order for minimization minimization. u.s. person information. i can minimization means that the information is disposed of in some way in fact it is kept for years or more and there's a long list of exceptions for keeping and using this information. so the change in this area has been less about the legal constraints because they are for never that many constraints but more the practical constraints. once upon a time there were limits on data storage and limits on analytical capacity computer analytics such that collecting all of the phonecalls going in and out of a particular country and storing them for 30 days was neither possible nor really worthwhile because you couldn't analyze all that stuff.
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that is clearly no longer the case. it is happening and then the other change in this area is the distinctions but legal distinctions between collecting information at home and collecting information overseas has really become legal fiction given the weight digital data is transmitted and stored. this notion that americans have no constitutional interest at stake when the nsa passed a data centers in europe and therefore no court has to be involved really doesn't make any sense anymore. so i think i will stop there. >> so major technological changes and relaxation at the same time of some of the legal limitations in collection. i want to turn to eric and ask about the business implications. what are the resulting perceptions around the world? what are the implications for the u.s. business and what is the response?
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>> thank you. first off i wanted to note you can see my bioi have a background in government credit worked at the state attorney general's office in new york and the computer session of the department of justice as it computer prosecutor so i have a good background in electronic surveillance laws and on the criminal side. but i also need to start out by coming back to the point that joseph was raising about the impact on companies and an example that pertain to my company. clearly we are facing a difficult challenge with regard to striking the right balance with regard to the powers of the government has the transparency around the use of those powers being able to have a dialogue about what powers the government ought to have really requires transparency as a starting point
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because if we don't know what's being done you can't effectively evaluating whether or not the powers are used properly. a cisco we don't view privacy and security is a zero-sum game. they are clearly connected. at the same time we don't view economic growth is being something is separate from national security. they are intertwined. economic growth should be a core value that is considered when we are figuring out what we want to be able to enable our government to do with regard to national security and economic growth depends on trust. it's hard to quantify damage but i think if you look at some of the examples that we have talked about that you see significant expenditures by u.s. companies that can serve as a pretty good proxy for measuring the scope of the problem. you see litigation that has been brought by companies like twitter and yahoo! to push back on surveillance requests. you see microsoft engaging in
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litigation with u.s. attorneys office in new york over data stored in ireland and you see a very large range of companies joining in to that litigation in support of the position including not only cisco but e-bay, hp, ibm sales force verizon at&t the government of ireland. so that gives you a pretty good sense of the scope of the concerns. and then you also see companies making efforts to build data centers in a way that allow for localization putting data closer to their customers. some of that may be based on performance but some of that is based on satisfying concerns that customers might have about where the data is stored and what laws are used to protect that data. that is all expensive. trust has clearly been impacted for companies across the technology industry including cisco.
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we have dedicated engineers as joseph mentioned whose job it is to engineer our products and services for security in mind and to build security in to deliver those products in the way that we intend them. at some point there things that we don't control. there are points where we deliver the product to our customers. the customers operate those products inside their networks. they have to maintain those things and so there are a number of different places where attacks can happen and we are talking essentially about nation-state to nation-state attacks. those are highly sophisticated well-resourced and in order to be able to address them and to figure out whether or not they are beyond the pale of what we as citizens are willing to accept we really need as a dialogue that takes place between governments. we need to have some new rules of the road and we need to have a conversation between those governments about what normal
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behaviors are acceptable and which ones are not because the scope and the sophistication of the actors are greater than the resources of any particular technology company. >> thank you. i want to turn to catherine. we have been taking -- talking a lot about foreign surveillance in these vast intelligence collection programs but we are also seeing some significant changes in the round of ordinary law enforcement so catherine i'm hoping you can talk to us about that a little bit as well. ..
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one of my primary concerns is okay, most people's everyday interaction with law enforcement happens at the local level. so to what extent our national security programs spilling over and affecting national local policing as well which can happen in a number of ways. sometimes individuals who are being prosecuted for a drug crime maybe have been instantly swept up in one of the big national study programs. i think it's important member another big post 9/11 push that occurred which was the was a great emphasis on the need to focus on homegrown terrorism and as a result to gather more information about what was happening at the local level. we've seen the creation of very
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large pots of money that exists for the purpose of allowing local law enforcement agencies to acquire technologies at little or no cost. they have names like the port security grant program operation stone garden. at first it might not be obviously something called the corsica to grant program would result in the expansion of why seattle purchased this surveillance drone using money from the port security grant program but it turns out most urban areas are also the port areas similarly the operation stone garden which is just invited a border program, many states have borders and at least water borders. a lot of these programs created post 9/11 to purchase surveillance programming. it happens for a second reason which is that the same technologies that may capture evidence of someone try to terrorist mark sackler the type of technologies that would be used in local law enforcement
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agencies. for more routine crimes. one of the things that was so striking recent was a story out of tacoma, washington, which acquired a sting ray device would see a technology that can be used it replicates a cell phone tower and it can be used to track the location of a cell phone without having to go through the carrier. the way that device was presented to the city council was that as a device capable of locating improvised explosive devices. but when people filed foia requests is how is this used, it turned out it had never been used in such a way and it was primarily used in prosecuting drug crimes. so first of all the post-9/11 pots of money are often fizzling surveillance at the local if. second of all the same broad technological changes, the ability to collect, store analyze and share information at
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unprecedented rates have also made surveillance at the local level more expansive. i'm sure criminal defense lawyers see this all the time in their cases in some respects. it's pretty well understood that cell phone tracking is a common law enforcement technique. it's amazing to me today that they're still so few opinions on this point about whether the government needs a warrant based on probable cause, but at least we now know about the technique. automatic license plate readers are common. then there's technologies that are just around the corner drones and increase expansion of facial recognition which i think people at the local are going to have to start dealing with an these things will crop up routinely in criminal investigations. saw want to allow for more for a more dynamic discussion. i won't say too much else but i think there's a double problem. first of all many of these technologies rather than secrecy, criminal defense attorneys can file suppression
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motions when they don't know that the evidence was gathered into with a mighty amenable to the. a lot of the secrecy we've seen has been delivered. a government baby strategic strategic decision not to disclose that it was using stingrays and instead filed orders with courts seeking authorization to use them under less than probable cause standard, probable cause and others. that made them look like generic request to use other surveillance technologies. supports all rectified would to combat the secrecy and second of all come up with an organized strategy for sharing materials on how to actually craft arguments judges will listen to about these technologies. >> thank you. i want to come back to a talk about this whole conference is about the transfer and we often turn to the fourth amendment is a way to regulate all of these surveillance and the kind of surveillance techniques we are seeing in on our law enforcement. how effective is the fourth amendment in this area, what are
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the limits? >> i can talk about how effective it is in these national for adults as programs or maybe catherine has some thoughts about their effectiveness with some of these local strategies. when it comes to the collection of communication phone calls e-mails and the like, the are a couple of limitations on the fourth amendment in this context and why it's not i was insufficiently protective. the first is something called foreign intelligence exception. as all criminal attorneys know the fourth amendment means that when the government conducts a search on an american it needs a warrant unless the search falls into one of several established exceptions to the worst requirement such as for example, a search incident to arrest. in the 1970s for circuit courts or appeals courts held the government did not need a warrant to collect foreign intelligence information.
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but these courts put very strict limits on the exception. for example, the target of the surveillance had to be a foreign power or its agent. there was one circuit court, the d.c. circuit that refuses to recognize a foreign intelligence exception. the fisa court has recognized an exception but as discarded all of the limits that the other circuit courts so carefully crafted. the supreme court has not weighed income has was not there is a foreign intelligence exception let alone how broad it is but there's a lot of uncertainty in the law in that area. another possible limitation on the fourth amendment at least an argument that is made is that foreigners overseas have no fourth amendment writes so the government doesn't need a warrant to gather the collection, isi, their communications. once you are collecting someone's communications you are permitted to collect the communications by definition if
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anyone there talking to you and you need no additional process to do that. that is not, in fact, the rule. there have been some court rulings in cases where there was a warrant at the beginning of the collection and where there were very, very strict requirements for getting rid of any information that fell outside what was identified in the warrant. and in those cases the courts held that the government did need to get a warrant for each individual person with whom the target was communicate. that does not map onto a situation where the initial collection involves no warrant and they are very lax requirements. so these first two potential exceptions as you can tell under a skeptical but there are problematic. then there's the fourth amendment and metadata. so the fisa court held that the bulk collection of americans telephone records did not constitute a search under the fourth amendment because information about who recall
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when we called them come how long we talk to them is information that we shared with a third party. that's the telephone company. and as we all know by now the something called the third-party doctrine which says that any information that you voluntarily disclosed to a third party, you do not have a reasonable expectation of privacy in that information. this doctrine which came about in the late 1970s has come under attack recently and is unlikely to survive. it simply does not square with the realities of life in the digital era. each one of us leaves a trail of digital exhaust about a mile wide. the e-mails that we share with our internet service providers the text messages we share with our mobile phone companies, the financial data that we share with atms the location data we are sharing with cell towers that surround us. these forced disclosure to the companies that provide services
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to us really should not be equated with a voluntary disclosure to the entire world including the nsa. so those are the issues. >> that the concept of the third-party doctrine, actually plays right into the litigation over the ward with microsoft for the data that is stored in ireland that cisco and other countries have been supportive of. the reason is because the government's position is that that they can demand access to the information that is stored in a foreign data center by subpoenaing a company that has headquarters often to places of business in the united states. and so they essentially treat the records that belong to the customers as being records that belong to the provider.
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and pertain to the customer. this is an important distinction that was liza was just catching up on. so you can back to the war shack decision, sixth circuit from 2010, and it holds that the electronic communication privacy act to the extent that it would allow the government to gain access to the kinds of indications with something less than award is unconstitutional. and the position that the company's in the litigation are taking essential is that not only do you need a warrant in order to gain access to the information but that warrants our territorial. and that if application within the boundaries of the united states. and the goal is not to block access to use government to gain information they need in the course of lawfully authorized investigation but to establish a modernize framework and to avoid putting compass in the middle of conflicting legal regimes were them i believe to produce, might require to produce information in one country and against the
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law to produce it in another. coming back to the notion third-party doctrine that it's my view that the record that cloud-based provider upholding when we talk about the content of these conditions that's fundamentally different than, i mean, i think it's a fair point that the whole doctrine might not hold that there's a fundamental difference between the records of the transaction and the concept of the communications themselves. if you're talking about a bank record the bank cannot transfer the money unless it knows what account it's coming from and where it's going to. so and assist the governments argument is passionate in a sense, the transfer belongs to the bank. but when you're talking about the data that is stored in your cloud-based account, i would argue that that is a different level, that there is metadata information that pertains to the storage of information and the
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transference of the but the content of the communication require a warrant. it rises to give a level of privacy protection and clearly we believe that the war should not have applications beyond the united states. if the government wants to gain access to the information that is stored in a data center that is in ireland they should go through ireland and make their request that way. >> that i prefer respond to the? i think the distinction between content that is held by third parties and metadata that is held by third parties makes a little too much of suggest a difference in kind that is not necessarily there. the metadata itself, and this has been shown in a number of ways especially since the stove disclosure, is equally revealing of the personal information -- snowden disclosure -- that is part of the creation sometimes
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as the content itself. an example would be if someone called a suicide hotline and hangs out. repeatedly. there is zero content to the call, zero content of the metadata tells you everything you need to know and it's personal and private and that is information that longs to the person who made the coal. it is true that the company generates the record. it is a miniscule act of generating that record reflecting the private act of the person. i think i'm going to solicit a comment during the question and answer are perhaps the question from mike price of the brennan center who is studying this exact subject but for now i will just sort of put a pin in that. >> i think there are good policy arguments for the point that elizabeth is making but in the law there is currently distinction between in my view, a more clear distinction between the content of communication and the metadata. so for instance, we come back to a bank record. the bank has to be able to document for anti-money
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laundering purposes that is has transferred money in certain ways and kept records. there is you can't i think make a fair policy argument that a certain level me to data does great a picture that is invasive the point that it should be treated like content that we do have in the current long reflected a quarter to privacy protection for the contents of communicate should and. indictment i'm making is not to say you're wrong about the invasiveness of collecting metadata, and maybe should be triggered in a different way but at least insofar as the current law is written we would argue that the government's perspective that they should be able to treat the contents of the medications like something that they can demand with a subpoena that can be domesticated back to the united states and turned over to them is incorrect, that because we're talking about content communications because of the
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level, this is a territorial demand and, therefore, they need to go to the proper government channels in order to route that request. >> i want to turn to catherine and let her talk also about the fourth amendment applications and talk all of it about the public view doctor and a plain view doctrine as a. >> i want to make one thing that is implicit and explicit which is the role that edward snowden has been bring us all together here today. i've been working on these issues for a long time. it was extremely unusual even five years ago let alone 10 years ago to have major american corporations speaking out in favor of greater data security protections, at least publicly. that is not the fault of the corporations but it is to suggest that because of his disclosures it has redesigned the landscape such as that now it gives the major comedy internet companies some cover to take steps to protect their privacy whereas before they
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would've just been hammered by the government for being on the side of the terroristic and i think we'll edward snowden at that of gratitude for many things but that is certainly one of them because the unfortunate reality is that the lobbying power of organizations like the aclu and the national association -- the people on this side of the civil liberties committee compared to what facebook and google can accomplish. unfortunately, budget is balanced there and we should take our allies where we can find them. i do want to talk a little bit about the original question you asked which is how useful is the fourth amendment in this. and i feel really substantially more optimistic after the supreme court's decision in riley. because it was the first time the court officially recognized that there is a meaningful difference between digital data and the types of data used to just carry around with you. i've experienced this firsthand in my practice but i would be arguing these cases about can
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the government search at the border. the governments argument was we could search your wallet at the border, right? there's simply no difference and if you don't want to be searched you can leave this stuff at home. i think the supreme court in riley by mechanize the fact that people carry these devices wherever they go they contain information that are both quantitatively and qualitatively different and sound at that and just let application of a heightened standard. i think that is game changing. i agree also that the third-party doctrine is a major issue. riley is useful particularly to the extent the government is engaged in surveillance directly itself but given how cheap and how much service technology is proliferating, private parties will gather this information. so unless there is at least some barrier on the government obtaining from the private parties, in the form of changing the third-party doctrine, riley
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will not be useful and less we can win that. the other thing i wanted to mention was this issue of fourth amendment remedies is huge. i was listening to theodore simon talk about winning on exclusionary rule issues which is almost unheard of in my legal career unfortunately. quickly tell you the sad story of my last aclu case which is something -- very helpful on which was we got this great essay from cert -- the third circuit court of appeals when you attach a device your car unique award based on probable cause which is like an invitation for a decision. what we got was what we got was a decision not even reaching this gps attachment trend in question but just holding that regardless. the good faith exception to the exclusion of all means the evidence wasn't going to be suppressed.
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so here we are many years now after jones and we have like very few court rulings on what seems to me a row to be basic and straightforward question which is what we need a word to attach a gps device. i do think the other major question is privacy in public. the alito opinion in jones give some suggestion that the fourth amendment gives protection to at least prolonged surveillance of individuals movements in public because there's something about the aggregate of information that is more invasive than the individual pieces. that's a huge question that comes to things like automatic license plate reader data be collected. i do not use office the last week they released a story based on how it got given by the oakland police department 4.2 million points of data that that's it has gathered through a public records request. apparently you can just do a
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public records act request. they didn't release the actual database. out of privacy concerns but the point is that are databases sitting out there and if we don't have any greater protection for public movement, merely because it happens in public then that's going to be another area where the fourth amendment falls short. >> i want to turn back and as i think we all know, under the fourth amendment doctrine and also a foreign intelligence surveillance scheme there's a distinction between how we treat u.s. persons, u.s. citizens u.s. legal permanent residence and of those present in the united states, and that we treat non-u.s. persons, noncitizens lacking sufficient voluntary connections to the united states who are outside of the united states. so making that determination requires an ability to distinguish, on location and identity. my question for you is how feasible is that as a
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technological matter? can the technology match the legal distinctions? >> it's tough. the first thing i should say is catherine, check today's "washington post." you will be horrified to see that there is a program of being disclosed that dhs is essentially going to contract with a third party license plate reader database company to be up to search willy-nilly this stuff from the past five years essential all-americans car trouble with very few protections. i encourage you to check that a. back to the question, determined both location added andy. it be hard to do this and you can see this in some the documents disclosed by the edward snowden like a 702 targeting document but before getting to that what i often do my passion in life is translate some of the technical reality to things that lawyers immediate and regular people can understand. physical geography is something we deal with every day. how did you get your?
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it may not be the easiest place to get you in d.c. but it's a wonderful place to be when we do get here. but network geology and geography, if you permitted to take artistic license. the geography of the internet is much more different to it changes every second. and so, for example, sending a single from your building to someone who may be in the building across the street may go in an extremely crazy way. it's not going to walk across the street so to speak or go to wires that are embedded across the street. it may leave the country. that may be the best way to get your information quickly and timely with whatever quality demands you have. if you're making a voice call they want to make sure that it is indeed very well so you don't have to turn into a glorified walkie-talkie and said hi how are you doing? over. that's not how we want to interact in life. at least that's the want to interact in life. political and geographic borders so to speak don't mask very well
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onto the network geography except for certain choke points by going across large water. you look at the 702 targeting procedures it sort of this extremely strange way of giving guidance and negative stuff to analysts in the fisa court and stuff like that. they focus on determining, if any lead of source of information they have in the vast quantities of data can sort of indicate someone is not on u.s. soil, and once they admit that determination to use a bunch of ways to do this. for example, the the communication come through a link that is facing an ocean where there's a bunch of foreign countries on the other side? that's one of the kind of things they did but, unfortunately, as pointed out that maybe the network try to route your stuff as well as you can begin to use a vpn product, lots of business and lawyers committee don't know what this is come talk to me because you've got to use of these things.
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vpn publisher traffic in a highly encrypted little pipe up tothrough another server before it goes to the rest of the network. those can very easily be another countries. so trying to use these techno- local analogues, proxies were some is located is sort of a losing game. and only then do they get to the identity portion to only then did he get to this person may be overseas but we've got to be sure they are not a u.s. person or do we have evidence of this is a non-u.s. person. in those kinds of cases they assume they can target someone unless they have some type of information that points to them being a u.s. person. we don't know how this works. and, in fact i would love to do technical analyses of the stuff. getting back to catherine's voice, boom, boom analysis, that here which is in some of the sticky wickets down to domestic criminal law enforcement stuff,
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you see the fbi or somebody seeking an order to put what's called a network exploitation of ice, a computer and internet protocol address by fire to it as to what they're doing to install the software. and inevitably it involves social engineering trying to send you e-mails that you inherit a click on because you think it's a trusted friend. or poking through your browser to undermine your entire staff. it's a very, very strange way of doing this kind of stuff which points to the fact this is how the network and digital technologies have evolved. we want them to give a specific outcome related things. we didn't design the internet identified everyone on the internet and that's a very good thing. very powerful ways if you are careful to be anonymous online, or at least be anonymous online. i will stop. >> can i add one thing? the rules for targeting and for
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minimization of the government to assume that if it has no information about where the person is over the nationality is, that that person is a non-u.s. citizen overseas. that is a default. the government has no information. that's a big incentive for the government not to do its due diligence than to figure out where the person is. it also doesn't strike me necessary that the lack of any information whatsoever is the equivalent of the reasonable belief that someone is a foreigner overseas which is what the statute requires. >> i should also quick to say there's some really strange pieces from a tactical perspective of the minimization guidelines. for example anything that is reasonably believed to hold secret content you can keep indefinitely with no minimization whatsoever. 30% of the net right now is encrypted. it's going to be, i do my best to make sure that is 100, we're getting as close as we can in the federal government, which is really address, u.s. the government has a plan to
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essentially strongly encrypt all web services within two years, which is really cool because anyway, the point there is you know, the fact that we're going to be able to collect encrypted information and do stuff with it indefinitely means that one you eventually encompass most of the stuff we transacted on the internet. so this is sort of a relative to the past but also encryption something that ages poorly. we find flaws and stuff regularly. the fact they can keep the stuff and just wait for some sort of law to allow them to get full access to the underlying mutation is totally unacceptable. i'm hoping to be able to work constructively. we have to work on this i hope we can work constructively to sort of amended those things to recognize that maybe 10 years is that of that kind of stuff and maybe he should never default to collect all the stuff. you should have some of the later something to really, maybe it's not probable cause that
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something it's not just that it is encrypted. you started talking but at least with 702 collection under the foreign intelligence program we have moved away from this idea of a target that is collected on based on fun and probable cause but still exist in ordinary law-enforcement activities in the united states. and so we're also seeing this infiltration of foreign intelligence information being used in law-enforcement, for law-enforcement purposes and in criminal cases. i hope you can toggle a bit about what limits are in place and whether they are effective in dealing with this use of foreign intelligence information in criminal cases? >> i spoke earlier about the rulings of courts of appeals in the 1970s, that there was a foreign intelligence exception. and the very strict limits those courts put on that exception. and the reason for those limits
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was to make sure that the foreign intelligence exception wasn't used as an end run around the warrant requirement in ordinary criminal cases. one of the most important limits that the courts put on the exception was that the primary purpose of collection has to be acquiring foreign intelligence. that limitation was incorporated into the fisa, the form and intelligence events at back in 1970. that limitation was jettisoned by congress in the patriot act and now foreign intelligence collection only as a significant purpose of the collection which means that the primary purpose can be gathering evidence for domestic criminal prosecution. on its face the statute provides some protection here in that it prohibits the government from deliberately targeting a particular known person in the united states. particular non-u.s.

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