tv Future of FISA Part 4 CSPAN June 10, 2017 7:12am-8:02am EDT
large number of communications that are swept in. i care about the procedure that is are in place to protect u.s. person information but i also want to know what is the scale of the damage or the potential damage if there's a failure in those layers of security, so i'm interested in the number and if the number were 150, i don't know we would be hearing the same level of suggestion that's irrelevant. >> okay, i want to thank the audience and the panel, hopefully as this debate unfolds it could be this thoughtful and engaging. thank you to the four of you. thank you to the audience. [applause] >> okay, everybody, we are going to get started again. this is our last session, keynote speaker liza, codirector
of the liberty and national security program at the brennan center for justice. prior to that she served with u.s. senator to feingold. focus was on government secrecy and privacy rights hence joy of getting liza here today. her area of expertise, of course, is what she's about to speak on, liberty national security, the tension between privacy and national security profiling, transparency, accountability, checks and balances an detainee policy. one quick note, when liza finishes the session, we are going to offer you a chance to go upstairs to our rooftop, nice
day and we have a reception up there in the sunshine and spring weather. so please join me in welcoming liza to the podium. [applause] >> thank you, mike, for this kind of introduction and thank you hoover, it can be very dry and technical subject and i salute you all for recognizing its importance and taking the time to understand the core issues that lie beneath the complexities and jargon. i want to tell you a story. to tell you a story i have to go back to 1940's, end of world war ii. national security state was in infancy and very few laws or even very few internal regulations saying what the intelligence agencies could do or couldn't do.
it was pretty much under the control of edgar hoover. our wartime ally russia had morphed seamlessly to our enemy. the fbi responded with a campaign of widespread domestic surveillance. cia and nsa joined in the act citing the possibility of foreign involvement and domestic movements even though that was never proven and gradually over a period of decades the specter of foreign communist became the basis for infiltration, systematic harassment of a range of social justice and political movements with a particular target on civil rights, activism and war protest.
at the same time, leaders were able to use intelligence agencies unchecked surveillance powers to big up dirt on opponents, specificky journalists and enemies and the like. some of us, many of us are too young to remember that time even if we did live through some of it and it's difficult for us to imagine what it would be like to be afraid to speak your mind about politics or about politicians although i do think that muslim americans in the country are getting a taste of it now. most people knew someone who had lost their job or had suddenly been mysteriously audited by the irs or the neighbors who had begun the shun them after they received a visit from the fbi agent that. was the atmosphere back then. in the 1970's, some of the worst abuses of the intelligence agency start today come to light. what the church committee found
is the stuff, the cia, special unit of cia collected information on 7,000 americans and 6,000 groups engaged in political activism. the nsa copied an andsed as many as 150 telegram going in and out of the u.s. each month which actually seems totally quaint compared to what the nsa collects in terms of scale. back then that was pretty shocking, perhaps most infamously the fbi bugged martin luther king, jr.'s hotel room in order to get evidence of extra marital affairs and get to commit suicide. that rule was that intelligence and law enforcement agencies could not collect information about americans unless they had individualized fact-base suspicion of illegal activity.
depending on how intrusive the surveillance were, they had to get a washington or a subpoena but at the minimum there had to be reasonable suspicion of wrong doing. the foreign intelligence surveillance act was one of these laws. if there was an american on one end of the communication, the government had to apply to a special court. by the way, if it was foreign to foreign, they didn't. this was a protection for americans. americans on one end, they had to do to the fisa court and show probable cause this the target was a foreign power of an agent of a foreign power and if the american was the target that involved some criminal activity based on the definitions to have statute. idea of all of the laws was that government officials had to point to indication of wrong doing, it would be harder for them to fall back on racial bias, on political grudges or other
improper motives and basically worked. it wasn't perfect and didn't end surveillance abuses but they became the exception instead of the rule and it stayed that way for almost three decades. then came 9/11 and just as quickly as that rule had been put into place, it was tossed aside. the individualized showing that had required in order to get business records about americans and foreign intelligence cases was replaced by bulk collection. the department of justice guidelines for domestic investigation created new category of investigation called assessment which lacked a factual predicate, no fact-based reason to suspect wronggoing -- wrongdoing. of course, there was section
702. let me stipulate that this response to the 9/11 attack was entirely understandable and i mean that. when something so devastating that is happened the natural instinct is to remove any barrier on the government's ability to do anything that stopped it. it never recommended changing the laws to remove the requirement of us possession for surveillance, to create a regime of us possessionless surveillance. that was never recommended and that's because absolutely no requirement that doing that actually helps in any way to make us safer and i will circle back to that. we heard a lot of the changes made.
i will briefly reiterate what i think are the probably two most fundamental ones. first it removed requirement of case-by-case judicial approval when the american is on one end. that's exactly what the law required up until 2007, second even most important, section 702 expanded the pool of targets. we haven't heard that much about that today of foreign powers or agents of foreign powers to any foreigner overseas. it isn't a question of whether you have to get a warrant or show probable cause, it's who the people are and at this point there's no requirement that the foreign target post any threat, have any information about a threat to the united states.
it also increases dramatically the number of americans whose communications are subject to being collected. it also increases the likelihood that those americans themselves are law abiding citizens. it turned surveillance into a potential fragment. now the government still has to certify that it's one of its goal although not necessarily the mean win. that's another thing we didn't discus today. it can be secondary but that term as was allude today earlier is broad enough to encompass conversations about current events. now, to be very clear i'm
talking about what the law allows. in practice the government probably does have some rationale for using its target beyond the mere fact that they're foreigners overseas. i doubt my stepmother is a target about surveillance. i don't stay up at night worrying about that but i also doubt surveillance is someone who poses a threat to the u.s. or has information about a threat because the statute doesn't require that. hope that the fisa court will lay on additional requirements beyond that the statute requires . the idea that congress originally intend today regulate surveillance only for domestic conversations not for international ones but for some reason didn't say so and instead
used the method of communication, wire versus radio as a proxy because methods of communication have changed with more and more international communications traveling by wire which is true, congressional intent is being sworded. the problem with this argument is that no one has managed to explain why congress would have engaged in this very specific parsing of technologies if it simply we wanted to differentiate between international and tommestic communications. that would have been a much simpler law to write but congress didn't write that law. so this notion that they used to all be radio and all wire, it's just not true. there's a different technology based argument.
that's the argument that certain foreign to foreign communications which were clearly not covered by fisa transit to the u.s. that brings them to fisa score. this is true for one category of communications, foreign to foreign emails that is are stored on u.s. soil. but they were making surveillance easier, not harder. and also on the government's ability to acquire, store and process all of the communications.
the government has unprecedented capabilities today to tap into communications which have exploded all kinds of communications and to store them in sophisticated computer analytics to sort through them. this is truly the golden age of surveillance and there's another aspect to this, in past decades, international communication versus purely domestic was relatively rare because it was difficult and expensive. today in interconnected world it's cheap and easy, sometimes free and it's necessary. let's have a show of hands who has communicated with a foreigner overseas at least few times in the last year? okay, i think that's everybody. what this international communication means that the amount of information about americans that the nsa intercepts even with targeting foreigners overseas has increased dramatically and yet
instead of increasing america for privacy, the law has gone in the opposite direction. the vastly extended scope of 702 to any foreigner overseas has turned fisa into mass surveillance. in 2011 the nsa was collecting 250 million communications a year under section 702. as we know, the government is generally allow today keep the communications for about five years. that means at any given time there's well over a billion or well over billion communication that is are stored in government databases from 702. nsa's original response is we don't know, it would be too
time-consuming and ebbing pensive to find out and violate america's privacy to find out. my first response was what, it's true for some kind of communication it is government would have to do dig to go figure out if there's an american on one end. try to filter out wholly domestic communications on the front end. way it does that is through combination of ip address and certain other techniques that it has and it say that is it can screen out the large majority of domestic communications in that way. in that technique ip addresses plus sufficient and for getting estimate of how many americans communications are picked up. and, in fact, under president
obama the director of national intelligence finally agreed to that they would do this, that they would try to do this, they came up with methodologies, briefed lawmakers and civil liberties and they were ready to go and then mysteriously for the past few months, we heard nothing about it and then we start hearing again from spokespersons for the government, it's very difficult, there are privacy concerns. we were in the virtue of getting that number and somehow it's out of our grasp. i'm going to state the obvious here. the government can't have it both officials. an official can't simultaneously reassure us that section 702's effect on americans' privacy is minimal in the breath saying that they have no idea and not even a sense, not even a ballpark and no way to figure it out. in the absence of an official estimate, we are left to our own conclusions from the public available information. the washington post reviewed a
sample of section 702 communications obtained from edward snowden and reported that approximately half of those communications contained some u.s.-person information. we have no way of knowing if that's a representative example. but if you assume that it is, approximately 125 million communications a year would have some u.s.-person information in them and any given time half a billion such communications in the government's databases. again that could be wildly off, absence of any official data, that's the best we could do. >> to misuse it for police call purposes. i agree that's been very little
evidence of that and i think it's true that the laws in the institution put in place after committee change the culture within these agencies, in a very positive way. people in the agencies sometimes talked about a culture of compliance but the laws and institutions that led to this cultural shift are the same ones that have been steadily eroded since 9/11 and it doesn't take a claire -- much moreover since we haven't seen much evidence of intentional abuse, we've seen pattern of failures, but i'm not talking about a handful of trivial incidents. i'm talk about significant and sustained violations of court-ordered limits on collection, retention, queering and sharing.
during which time government lawyers were misrepresenting the nsa's activities or the agency's opinion. these violations are inadvertent but inadvertent privacy violation is still a privacy violation and the history of repeated systematic violations suggest that one of two things must be happening. either the agency is trying that hard to comply and i don't want to use that conclusion maybe because the system has become so large and technological complex. either of those explanations
gives me very little reassurance when the government is asking us to trust it with tens, maybe hundreds of millions of communications. that leads me to another concern, i would love to think that the intelligence community does a better job in securing data, but it wasn't too long ago that wikileaks disclosed the ceo's hacking tools. so it's the record isn't perfect and all of the information about presumptly. now, i've been talking about americans' privacy and we also need to consider about the effects of government targeting any foreigner. they do have rights to privacy that are acknowledged under
international law including treaties to which the united states is a party. that is becoming the consensus position of courts and legal authorities in europe. have reached with counterparts in europe in order to do business overseas have been struck down and they are in jeopardy, whether it's one that was struck down in 2015, there's another that replaced it, that one may not survive if section 702 is not amended in some form. this is a serious economic threat to the american tech sector which is why more than 30 companies facebook, google and microsoft signed a letter last week urging significant reforms of section 702. for all of these reasons, strong back-end protections can't cure the problem of overly broad
collection on the front end, conversely, narrowing collection at the front end isn't going to eliminate the need for strong back-end protections. we heard this earlier. it's the nature of surveillance in any kind of surveillance you do, you're going to end up with incidental collection, innocent conversations as a result and that's my minimization is required as constitutional matter as well as as constitutional one. subject to narrow exceptions. the statutory minmization is
lacking in specific and the agency's minimization have grown more and more permissive as the inevitable mission has set in. show of hands? i am going to go ahead. not many hands but i'm going to go ahead anyway. the nsa can share raw data with the cia, the fbi, now also the national counterterrorism center as of recently, all of these agency are generally allow today keep the raw data including u.s. person raw data for five years after the occasion requires. they can also seek extensions and the 5-year limit doesn't apply which is increasingly the case for people who use ordinary
miewl devices. they basically keep it off and the fbi and the cia don't even have that requirement to purge on protection. they just rely on the five-year and moreover if the fbi reviews information concerning u.s. persons and comes to no conclusion about whether or not it's foreign intelligence, literally no conclusion, the five-year limitation at that point evaporates and replaced with some longer period of time that still classified. it goes to show that targeting, incidental don't mean what people ordinary think of.
it's not just minimizing the retention of u.s.-person information, it's putting some restrictions on it but not minimizing. the most controversial and disturbing aspect of the minimization procedures is they allow the nsa, cia, fbi to search through data using u.s.-person identifier with the expressed goal with finding and reviewing americans' communications and this is a book door search loophole. remember in the government wants to obtain an americans' emails or phone calls it has to go to the fisa court and show probable cause that the american is a foreign power or agent of a foreign power. the government wants to obtain phone calls or emails in law enforcement investigation, it has to go and get a warrant. before conducting section 702 surveillance the government has
to certify that interest lies only in the foreign target and it does not intend to target any particular known american. that's what makes it legal in the beginning. is that certification, only interested in the foreigners, not the americans, not any particular american and yet the moment the data is in their hands all three agencies can sort through it and look for communications of particular known americans the the very people that the government just disclaimed any interest and the fbi can even search for those communications to use in ordinary criminal case that is have nothing to do with foreign intelligence or with national security. i've said it many times and i will say it again, t a bait and switch that's totally inconsistent with the spirit if not the letter of the prohibition and creates a very dangerous around the fourth amendment. now, i've heard intelligence
officials that defend back door searches on the ground that once information is lawful collected, it can be used for any purpose. alex did an excellent job and i want to add on top of that that the very definition of minimization is you can't use it for any purpose. that's what minimization means and that's not only a statutory requirement, that's a constitutional requirement as well and the fisa court has plainly said and i quote, the procedures governing retention use and dissemination bare on the reasonableness under the fourth amendment of a program for collecting foreign intelligence information. so what the the path for it. listening to me think you may think i'm in opposition of section 702 but everything that i have been talking about is outside the core of what section 702 was supposed to do and what it was supposed to do was to allow the government to go after foreign threats, suspected terrorists and not have to get a
warrant to do it. i know i'm standing between you and cocktails, but none of those changes go to the heart of section 701 which is warrant collection on suspected foreign threats. ways in which is much broader so in reverse order the back door loophole should be such, the government should have to obtain a warrant, it should have to get a fisa order to search communications in foreign intelligence investigation, by
the way, there is a precedent for requiring the government to get a warrant for information it has already acquired in criminal cases where the government has made electronic copies of computers or iphones and has ceased those and has gotten a warrant to search them and required by the courts to get a second warrant if they want to do a later search, so this is not unprecedented. as for the proposal to allow the government to search only for meta data and if something comes up then you, the government can go to fisa court and search for meta data, i'm not on board that they can do it with no process whatsoever as a compromise. in addition to closing the back door search loophole, the scope of targets should be narrowed
and this is something i also agree that the end of about collection should be codifiedment i think that was covered earlier. there is no reason to think that this would make section 701 less effective in every case that the government has publicly cited including the case as evidence of section 702, somebody the government knew or believed to have terrorists ties.
targeting a specific foreign individual overseas based on the government's reasonable belief that the individual was involved with terrorist activities. needless to say these cases do not support the idea that the government needs the authority to target any foreigner overseas and collect all of his communications with americans. so the good news is we can do this, we can have a foreign intelligence surveillance law that gives the government broad latitude to go after foreign threats without getting a warrant at the same time we can protect the privacy of innocent americans and foreigners to strip minimization requirements in a more sensible pool of permissible targets and we can preserve the foundation principle that the government must get a warrant if it wants to listen to americans' phone calls and americans' emails. intelligence officials say that we can't do it or any additional limitation on their authority to conduct surveillance will make us less safe.
they have made the same argument when congress was considering recommendations and i think they believed it and i think they believe it now. the alternative to moving forward with reforms is to move backwards to a time when americans were afraid of their own government. at some time in the future and perhaps the not too distant future the self-restraint and the self-policing and the culture of compliance that have kept the government from taking full advantage of the tremendous legal license contained in section 702 will fail unless we act. thanks. [applause] >> does anyone have any questions that don't relate to what you can order when you get upstairs? yes. >> it may sound like a stupid question but i would like you to
try to walk us through two situations, the first situation is under your reform, if you target a foreigner and you pull up the snowden seem to suggest to pull up a facebook page, you can pull up chats and there's an american at the other end, if you could under your system you could read that and there's something on the american end that is suspicious, wouldn't that be definition give you enough to get a warrant? you're raising another set of reforms which i didn't talk about but in addition to getting the warrant and closing the back door search loophole another important set of reforms that's under consideration is use limitation and that's when you can use information that you actually bump into as you're
looking through and again, we are not interested in the american, we are only interested in the foreigner. the question becomes how much use should the government have of information that it bumps into. no, i want to be very clear. i think that usually when this happens, i think the bigger threat is a back door search because i don't think it's that often that accidentally the government bumps into a random crime that's being committed by an american when they're reading. go on. >> maybe i'm just being thick there but is the back door search just throwing the name of an american in a search query as opposed having information from having query of the foreign target? >> yeah, the difference between going looking for that information versus stumbling
across it. let's say you did, the analogy would be if you're searching a house and you find a murder weapon, you're searching for the murder weapon, that's what the warrant says and it's a difference literally tripping on a bag of drugs versus finding the murder weapon, you know, i think i'm going to look for some drugs. >> i will stop after this. in the snowden movie, he shows you see the screen shot -- >> i haven't seen it. >> the spider web of all of these connections, is the abuse we are worried that there's a targeting of a foreigner reasonably about to be abroad and at what point is the american wrongfully searched in that process. is it that information is already been pulled up by the nsa about this foreign target or
is it just that there's information about this foreign target that is in a database blind and you throw the american 's name in as a search item? >> there are two different concerns. they are both concerns and distinguishable but they are both concerns. does that make sense? >> it does. >> okay. >> supported strong surveillance authorities and now questions about it. do you think that they're open to reforms that aren't politically motivated? >> so without naming names, i think the wild card here is people who are very strong
defenders of section 702 in the past such as devin nunes who is now -- has said things that seemed critical of it but seemed town -- to be walking a line but i think there are a lot of people who -- and this is my sense from being up in the hill republicans an democrats who voted without really understand ing and i don't fault them. i don't understand how they stay on top of everything. i really don't. i think it's a big problem. this is complicated under the best of circumstances and i think that they listened to people, we need this authority and jim clearly is -- believed that and acting in good faith and said, we trust you and they granted the authority and they didn't really know what was involved in it. and i think as some of the details are coming out and as they're focusing more on it, i think there's going to be room for some of those people to say,
not let's get rid of 702, not this is a travesty, we don't need a warrant every time we track a foreigner, can we trim some of the fat around the ends of the raw and do we need the ability to get foreigner overseas, could we be more specific, what we meant about minimization so the stuff isn't hold for five years or longer. we may see that level of engagement from some people and that's welcomed. yeah. >> i'm no expert but you kept mentioning that the law basically says if you're a foreign overseas, we can target you willy nilly, we don't have to have a reason, but as far as i understand it, there's a third component to that and that's the foreign intelligence value an it's not just that you're a
foreigner overseas but there's a third component which is the reason why we are targeting you. >> first of all it can be primary or secondary reason -- >> okay, but i don't know that that's true. i mean, there are three things that you have to meet to target somebody -- >> well, the court has said that -- that's not my reading of it, what the law says that a significant purpose has to be the collection of foreign intelligence and the fisa court says it doesn't have to be the primary purpose. >> in a compliance world, those are three things that are double-checked and triple-checked and quadrupled-check. >> absolutely. >> and critical to making sure that a target is a legitimate target before you can go and collect on them. >> sure, assuming that happens and when it's not nilly wily
mass collection of anyone overseas, if there is incidental collection and that person really is a target, legitimate target because there's some derogatory information that's leading us to think that that person could do us harm in some way and that incidental collection happens to be a u.s. person or one of our allies, the canadian citizen, whatever, that is in close contact with someone we suspect is a terrorist, wouldn't you want to know that? >> yeah. >> wouldn't you want the fbi to know that? i do. >> sure. nothing you've said -- you said if we have information -- >> and i want them to know that quickly. i don't want them to have to wait a week to get a warrant for that information. >> i'm not disagreeing with you.
>> closing that back door, what you're calling that is the back door loophole. >> no, no. the back door look hole is when you say i want to read the communication of this american, not canadian. i want to read the information of this guy. i think this guy might be up to something and i am going to plug that into my database. >> that's not how it works? >> yeah, it is. you collected the database on a foreign intelligence purpose but if the point they put in the u.s.-person identifier they don't have an intelligence purpose. they can put the identifier into the database when they're doing a routine assessment in a criminal investigation. remember an assessment is when they don't have a factual predicate. they can read to american's emails, let alone a foreign-intelligence purpose and that's in the report. again, it's not a conclusion i'm drawing but to go to what you said before, the foreign-intelligence purpose limitation is unfortunately not
that much of a limitation because of the definition of foreign intelligence which is not derogatory information suggesting someone means to do us harm. i would love it if that were the definition but it's any information that is relevant to the conduct of the foreign affairs of the united states. that is one of the definitions and that includes my phone calls to my stepmother about trump's foreign policy. again, i'm not paranoid. i agree, but it fits the -- [inaudible] >> so if you and i talked about the merits of nafta, is nafta foreign policy? >> i wouldn't know -- i wouldn't know. >> i'm worried about what the law allows, not what it's done right now but what might be done a month from now, a year from now and ten years from now and we can narrow the law that allows what you're talking about is going who people who really are and pose harm and doing
without a warrant, without reading american phone calls, without an e-mail or having the definitions that would, in fact, allow conversations with my stepmother to be swept up. i don't think they are. yes. my question is about the most vulnerable americans, we often forget this and i have friends who are muslim americans who are in no-fly list for no other reason that they have relatives in pakistan. we forget this.
i have to trust that the oversight and currently i do but i am worried about erosion, but i'm also a white guy from boston who is well-educated. >> where? >> i'm lucky in that society and people forget how afraid muslim americans are right now or christians from syria or seeks and they're targeted right now. >> yeah. >> by fellow citizens, you know. >> so i write a lot of critical things about this current administration and i recently traveled internationally and it occurred to me on the way back that they -- that i might be one of those people whose laptops or
cell phones got searched and when it wasn't, i was disappointed. i searched that public speaking and i chose to speak out about certain issues that could potentially -- there are lots of people who are muslim americans including immigrants who are probably very worried and who didn't ask for any of us and one of the harms of overcollection as oppose to one of the reasons why i don't agree, we will collect at all, just the fact that that collection and the potential that it could be abused causes concrete harm which is a chilling effect, immeasurable chilling effect, but chilling effect on the willingness of certain vulnerable populations willingness to speak freely and it has been -- in the wake of the snowden disclosure there was a 5% drop that google measured
in government sensitive search terms, cia, things like that. people willing to type those things into google. not other sensitive words like abortion or something like that. just those kind of things so right there that's across the population, muslim americans, i don't think their response to 702 has been measured specifically but the response to nypd surveillance, there's been some studies on that really dramatic, really dramatic stuff in terms of the muslim association, declines in mosques attendance. things that should hit us just as deeply, things that we should be afraid of as we are of security incidents because this is who we are as a people, can we talk to each other? can we air our political differences without being afraid that it might be heard the wrong way by the nsa.
thank you for raising that. [applause] >> thank you. >> you're watching book tv on c-span2 with top nonfiction books and authors every weekend. book it tv, television for serious readers. >> and we are live this weekend from chicago for the 33rd annual printers rogue league fest. michael eric, heather anne thompson and many more, for a complete schedule go to our website and on our after words program this weekend, new american president and ceo anne mary. she's interviewed by former obama administration chief of
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