tv Politics Public Policy Today CSPAN September 16, 2014 9:00am-9:31am EDT
international communications but we're actually not targeting americans in the united states. so we're just going to target overseas and use it to reverse-target individuals in the country. so that's why they introduced these other provisions, 703 and 704, minimization procedures, other mechanisms to try to prevent this from happening. what is actually happening is this is being interpreted, not just information or communications to or from targets overseas, non-u.s. persons, but information about selectors related to those targets overseas, which is a broader understanding. you can collect more information. so if i communicate with somebody and there is reference in the content of my communications to a selector, that information can be collected and mined for further information, even though i never communicate with a target itself. this is called to, from or about interpretation. tfa. this tfa has allowed the government to collect a lot more information than it would otherwise be allowed to collect and it is now allowed to query that data using u.s. person
information. so names, affiliations, titles, could be council on foreign relations. when you query the data to see if anything comes up. you can actually query this database which the fbi has co-mingled with traditional fisa and there no record kept of this. under to the right of the people, which is understood as the political entity of u.s. citizens, not non-u.s. citizens. so the right of the people to be cure, their persons, papers and effects, against unreasonable search and seizure shall not be violated. right? we have this right, yet person identifiers are being used to query this database. now the foreign intelligence surveillance court offered reasons saying why there was not a warrant required for the collection of the information in the first place. they were good reasons. that when the purpose of the surveillance is not garden variety law enforcement. when the ój÷igovernment's inter is particularly intense. and where there is a high degree of probability that if you were to require a warrant, it would hinder the government's ability to collect time-sensitive
information and would hurt u.s. national security. you can collect the information. none of those conditions hold when the fbi then goes back to the database to see if there's any evidence of criminal activity linked to non-national security related criminal cases. similarly, in bin laden, the southern district of new york said it is hard to get warrants for foreign intelligence collection overseas. it is hard to predict the international impact of seeking a warrant. there is a problem of foreign intelligence officials being seen as xles icomplicit. there is a danger of alerting foreign enemies overseas. when we already have the information in our hand it is hard to argue why you shouldn't be required to get a warrant to search the data for evidence of criminal behavior, especially when it's utterly unrelated to national security interests. the privacy and civil liberties board recently came out with a report where they said the fbi frequently does this and they don't keep a record of it. they don't go to a court first. there's no probable cause required. and this amounts to an end run around the fourth amendment. we have to have reform of this
system to bring it within our constitutional purview. >> i want to just change course a bit and maybe address some of the things that peter said. because i felt there was a bit of a characterization of what we think at "the washington post" and how we are and all of that sort of stuff. let me offer, i hope, clarifying remarks. first, we never said snowden is a hero. by the way. what we suggested was that in these documents that he provided us and "the guardian" that there was information that the public had a right to know and that had important public policy implications. and that probably should lead to a debate such as the one that we are involved in here today. we never suggested that the public is not concerned about terrorists. we are concerned about terrorism. we cover it every single day. and by the way, we feel it very
acutely. individual who was recently beheaded by the islamic state was a journalist and there are other journalists who are being held by terrorists throughout world. so we're not pollyannaish about that subject. we didn't say that a majority of americans favor greater restrictions on the nsa. in fact, we conducted our own polls which showed pretty much what was reflected in the polls that peter cited. nonetheless, to say that when three say restrictions should be increased, that's a substantial portion of the population. just because something constitutes a majority doesn't mean their views should be entirely dismissed. and we have said that, and do feel, that this level of surveillance does raise important constitutional issues. as laura has been talking about.
and is potentially subject to abuse. there's no question that we are in a period of terrorism threat and there's no question that in a period like that, individuals are willing to give up their rights in favor of security. but that's a decision that the american public can make through debates such as this one. the american public can arrive at a policy that they think is pro appropriate. if they choose in some manner to give up their rights, they can do so, although we do have a constitution and those things have to be contested and discussed in courts and in forums, political forums and forums such as this one. i do agree with laura that while perhaps disclosure of these documents has had an impact and perhaps a very serious impact on
the government's ability to conduct surveillance and intelligence that feels it's important in the fight against terrorism, nondisclosure of all of this that the fact that all of this was largely secret from the american public does in fact do damage to our civil liberties and our ability to govern ourselves. >> peter, any response? >> well, i think you just misunderstood -- i was not attributing those to the views of the editorial board of the "washington post," distinguished as that is. but you're right that there's been a marked change in the tone of coverage of these issues, even since the tragic beheading. the reporters that i talk to, their approach on this issue is different this week than it was even two, three months ago. and certainly at the height of the snowden revelations when the
outrage was mostly directed at the nsa, and i think that there's been sort of a return to the more balanced perspective that you just articulated, i think there has been since then. the public has voted on these issues, voted to re-elect president bush. it voted to elect the people who passed the patriot act. it voted to re-elect president obama, and both president obama and president bush defended these kinds of actions so now there's obviously lot of reasons why the public votes for a president. but the public -- the gist of my argument is that the public outrage at the nsa probably hit a high-water mark is what i
would say, has hit the high-water mark at the height of the snowden coverage, and that world events are likely to push the public away from that, further and further away from that, more likely to do in that direction, than to push them more and more are in the direction of, say, warren's camp. now that doesn't speak to the policy wisdom of whether reforms can be made. they have been made and they'll probably be more tweaking on the margins. and certainly if there is any new action, it will be much more tailored and restrictive than the original 2001. so there is not to say the public will be -- will force tigss to be unrestrained, but it is to say i think the public is moving more in the direction of taking more risks to confront terrorism than it is accepting more risks from not confronting
terrorism. >> this is a political science convention, and one of the teachings of law and politics is the relationship between law and politics. judges will often decide cases somewhat differently based upon the circumstances, you know the famous line, supreme court follows the headlines. both of these implicit but not untrue either. and perhaps press to some extent, at least in terms of what it publishes. so there is a relationship between politics and the law. the panel, laura would be the most uncomfortable it seems with that proposition. is that fair to say? >> that the courts follow poll six? >> yeah. or that politics influences what courts do. it's always been a separate domain for law. >> that's very difficult. obviously when you teach constitutional law, you're aware of the political context in which decisions are made and of the general orientation of the justices. but also the effort to reconcile
propositions before it with constitutional provisions. >> absolutely. >> i just want to throw out, i think both an observation -- i may have a question for marty that i wanted to be able to ask. but the observation is that, look. this is really important discussion and laura's points, where the law is heading, really interesting and important part of this debate. but i think it would be wrong, and it is really a miyth that na is lawlessly making these arguments and going forward on its own implementing these programs. fact is on 215, for example, the fisa court, independent article 3 judges, 37 times i believe, have upheld 215, including since the revelation of the snowden documents and the debate in the public. the federal judges who have looked out it, 3 out of 4 have upseld 215.
on the 702 side, congress passed 702 fully understanding after a debate how it would be implemented. and the judges that have looked at it, the one judge that's looked at it has upheld it as constitutional, as within the statute. it may be the case that some day law review article that laura's wrifting will make its way into a court or into congress and change the law. but that day is not today. so we, from my perspective, we have an obligation to execute the law in a way that protects the country and takes full advantage of the laws and tools that are on the books. i think it is a misimpression to say that these are just arguments nsa is making or just ways nsa is implementing these laws, because there are lots of people at the justice department within the executive branch, within congress, the fisa branch, looking at these programs, reauthorizing then and determining that he are within the statute and within the constitution.
i think it is a really important issue and i'd like to ask marty. i think the hardest part of this -- i think you nadmade a v reasonable opening comment -- i agree with you the way "the washington post" approaches these issues. i've had ain't actions with "post" reporters about information they've heard. challenge is -- at least one challenge is the initial story that the "washington post" broke -- i think it was the initial story -- said that nsa had directly tapped in to the servers, central servers of internet companies. non-internet companies. this was based on the slides that snowden had released. it this turned out not to be true. this was the lead story. so a lot of people might rightly think then, and even today, that that was the case. in fact, what that program was talking about was section 702 of fisa which had been debated, authorized and validated by the courts. it is just very -- i understand there's pressure on the press to
publish when you have something like that based on what you know and there may be timeliness pressures as well. but the problem is unringing that bell, because that turned out not to be true. you all would be forgiven if you think that today it is true that nsa has tapped directly into the servers of american internet companies. not true. just not true. but it was the lead paragraph of that initial story. and it's very hard to change that impression once it's out there. i think there's real pressure and i know there is a back and forth and maybe we've gotten better at it in sort of working with the press. but the other problem is that not every press outlet is the "washington post" and "the new york times" and is engaged in that type of discussion with the government in an effort to be responsible. so that's my sort of question. >> let me address that. first, we had discussioned with director of national intelligence and with the nsa before publishing that story. the second point is that was an actual nsa document that said they could tap directly into it.
so it was an actual accurate account of what the nsa was telling its own people an its own documents. so in addition, the story did not stop there. it actually said that the nsa and the government denied that it was doing that and they quoted extensively from technology companies, google, and the like, saying that they were not aware of this, this did not happen. so it did not stop at just saying the government can just willy-nilly tap into these networks. it actually quoted from the government saying this was not the case. it quoted from the technology companies saying it was not the case. but it also quoted from the actual nsa document in which it said it was the case and this was what they were doing. as far as the every media outlet not being "the washington post," i appreciate whatever deference is there to the "washington
post." the reality is that snowden could have done what was done in the case of wikileaks. he could have actually turned this offense to wikileaks. all of this information, without any intermediary being involved, the intermediary being us and "the guardian" and some other publications over time, he could have just posted it all, put it all out there for anyone to look at. any terrorist organization, any other country to take a look at and pore through and look at it to their heart's desire. for reasons that he is articulated, he gave it to us to exercise our judgment and in exercising our judgment we spent, as i think you know, an enormous amount of time with the government going over this information, and actually withholding information that the government felt was forar too
sensitive. we spent months on some of these stories. we have spent enormous amount of time, an enormous amount of money. we've also taken enormous precautions with the security of the documents that we have. so i don't think that's an act of irresponsibility in any way and i think that certainly the government would argue that nothing should be out there, that the government should essentially know everything, the public should know almost nothing. that's not -- >> that's not my position. >> well, that is the position i that's not a position that i think is consistent with the very principle of self-governance. >> i think we need to move toward the q&a. laura would like to make one quick final point. then we'll do the q&a. please line up behind the microphone. if you just ask your question back there, they can pick it up. >> just a comment responding on the foreign intelligence surveillance court, this reliance on fisa concerns me and
the reason why, if we look just across the board, in the past ten years of 20 judges on the court, only three were democratic appointees to the court itself. of the judges on the foreign intelligence court of review, all of the judges on the courts of review that have issued these important decisions bringing down, for instance, the wall between criminal law and national security were republican appointees. two of the judges on the three-panel that brought down this wall had actually said fisa itself was unconstitutional in the first place. judges silverman and guy. applications that come before the court in the past decade, there were 18,473 applications, only eight denied in whole quarterba and only three in part. there's no advocate posed to the government at the court. these are in camera, ex parte proceedings so there is nobody to argue against the government for these orders that are put into place. there's no constitutional advocate or advocate that may
challenge this at the time the orders are being put forward. you see the impact of this. judges that have released opinions, one of the opinions when it treats smith v. maryland spends a page and a half as summarily dismissive of any question of third party data with no treatment of advanced technologies, u.s. v. jones, these other cases that have been handed down. we now have these other cases you could look to but none of this is being cited, there is no contrary opinion being expressed to the court at the time. i would add that they were not designed to be a court to create precedent and certainly not a fourth amendment warrant exception which is what's happened with regard to 702 so the foreign intelligence surveillance court of review now finds that there is a warrant exception to foreign intelligence collection which has nef bever been recognized a dimts level and since 1978 fisa has controlled those collections. when you have a secret court which is heavily skewed toward one direction at least in terms of the appointments which tends to agree to all of the order
requests that are put before it and these are secret, to then look to that as precedent for a court that wasn't designed to have precedent with no contrary counsel to rely on this as a state of the constitutional provisions i find concerning. >> you would support an advocate to the fisa court. >> absolutely. >> the whole panel could be devoted to that one question alone. to the q&a. >> i am steve schiffron from the cornell law school. i want to push back a little on the third party doctrine argument. i think the statutory arguments you made were absolutely compelling. on third party doctrine, you argue that it's qualitatively differe different, and the argument is that it is a greater invasion of privacy. and it strikes me -- i'm opposed to third party doctrine from the beginning. third party doctrine knew there was a violation of privacy but
said it's irrelevant. you can take people's trash, you can get their bank records, can you get their e-mail, you can get the bank records, including credit cards and so forth, you can get their telephone records. we know that invades privacy. but it's not within the scope, it's not a search. there's no reasonable expectation of privacy. so if it's qualitatively different under third party doctrine, it doesn't make a difference. the second point is, it's not clear to me that it is qualitatively different. if you give me a choice between having the government get my bank records, my phone records, searching my trash, and so forth, versus their knowing who i call, there's a much deeper invasion of privacy.
it's qualitatively different in the sense more people are involved, but in terms of the particular invasions of privacy, the third party doctrine already was doing greater invasions of privacy than the metadata of the nsa. the final point i want to raise with respect to this is a question. the requirements for a subpoena are not constitutional. and i'm wondering if verizon says, you can't get this without a subpoena, what is the relationship between the requirement for a subpoena and probable cause? i ask that because i don't know. >> feel free to jump in. >> let's try to be brief because there is a lot of -- >> right. okay. so probable cause is not required for a subpoena. it's not. i actually have a discussion in
the paper, the 215 paper of the subpoena cases that are relevant to this, the ones that the longest periods that the courts have agreed is two years focused on a particular individual doing money orders in chicago. that's the longest period of time and probable cause was not required in that particular instance. on this broader point, whether there is a distinction, qualitative difference, we have information available to us that was not available then. so social network analysis. when you put one tap on michael lee smith's phone to see if he calls somebody who he's suspected of actually harassing, sexually harassing and robbing and so on, that is different from saying let's look at the social network and who's related to whom in this network, who the important notes are be what centrality is in this network, which ones levy the most power with regard to others in that network. that's the kind of information one can get. you can also get trunk identifier information. before when we had land lines you couldn't tell where michael lee smith went during the day. now we have cell phones.
tracking technologies that allow us to attach to each cell phone tower as we move around can now pinpoint where we go. so it is different kinds of information that one can get through these same third party records. so i would say that even the telephony records are different from before in terms of the privacy interests. and beyond this, the type of information that we now digitally house with third parties is qualitatively different. on the icloud, the amount of information we put up about our private lives, our personal correspondence, our private dealings with others, the home -- the concept of inside the home, the filing cabinet is sacrosanct and you need a warrant to go into that filing cabinet. just because we keep the contents of that filing cabinet on our pocket, this is what this recent case, the riley case, was about, whether or not you have this privacy interest in the cell phone when the police arrest you or whether you need a warrant. the court said you need a warrant. there is a new world we live in. similarly in the intelligence community, the idea that just because we give this information
to apple or to google or to whoever it is and store it on the cloud that there is not a search for the government to go into it and get it, and therefore they don't need a warrant, i think that doesn't understand the privacy interests that are now implicated by how technology has changed the context in which we live our daily lives. >> it is just really important to emphasize one point after laura, which is that when the government seeks for intelligence or not for intelligence purposes, but for under fisa to obtain the contents of communications of u.s. persons, they have to get a warrant. so nothing that we're talking about undermines that basic proposition. the government's going to get the contents of that information, they must get a warrant. >> leslie francis from the university of utah. this is a question about the temporary structure of data and analytic techniques. with syndromic surveillance in the area of health, you don't know what you are looking for
until you see a pattern. you don't know whether there's something of significance or who might bel relevant entity. now i'm actually very interested in privacy, and the gravamen of this question is to ask you, are there any ways, given that feature of analytics, to try to craft reform so that when you can't identify the trararget in advance, so that we can figure out ways to figure out relevance and the use of of subpoena power and so on, given that fact about the power of data and analysis. thank you. >> so my thought in response to that, this presents a national security as haystack argument. this is senator white house is big on the haystack. can't you just build the haystack to find the needle in national security? don't we need all this information so that we can find
the needle that we are looking for in the haystack? that is a general warrant. a general warrant is something that allows you to just collect a lot of information to try to find some sort of evidence of wrongdoing. as a constitutional matter i would say that that is barred as a criminal matter under u.s. law and the fourth amendment. there is no automation exception moreover. so if the government were to put cameras, video cameras, in all of our bathrooms and to record us, an they would say but we don't access it, we're only going to access it when we actually suspect there is activity and we'll just look at general patterns of behavior outside of that, that would be a privacy violation. so the fact that you build this haystack using computers and assume there is no intervention that is also not established as some exception to the fourth amendment. while i understand your concerns on privacy -- or with regard to health law that are you looking for patterns, when it comes to criminal matters where you can imprison people or kill them, right? underneath our doctrine that we have, this is something very different and that's where constitutional protections come
into play. >> i would just add though that this gets us to something we haven't talked about yet but i think will prove increasingly politically relevant, and that is while it is a fact that the nsa is not targeting each of us individually in this room or on this panel -- i'm pretty sure -- we are in fact targeted by google, by facebook, by private companies who are actually doing precisely the things that you just described. they've assembled the haystack and they are looking for things. if you have any doubts about this, check up the ads that pop up when you watch pandora and whatever -- when you listen to pandora, i should say. internet companies do this. i recognize that there's an important constitutional distinction between the government doing this and private companies doing this. of course, we all clicked that we accept that the companies will do this so that makes it legal. but from a political point of view, i think the public will
get increasingly uncomfortable with that level of targeted surveillance and that you may see pressure for reform coming in through that door, and then maybe eventually migrating over to the national security area. >> my name is jason kyber, ohio state university. it's been a great panel. thank you all very much. so i'm an international relations guy. so that underlies the thrust of my question. seems like the nctc and terrorist environment or terrorist information data environment tie is the primary repository for ct information. and we know that the nsa is one of the primary collectors of that information and, i assume, feeds the nctc that information. we also know that the u.s. has information sharing agreements with other countries. and in fact, there is a foreign partner extract of the terrorist
watch list. so it seems to me like there is an interesting international dimension here. can you comment a bit on -- i know you're going to be limited in what you can say -- on how foreign partners are actually benefitting from nsa surveillance activity, and is the nctc tied database becoming a global information clearinghouse. >> pretty well informed question. we know our business quite well at nctc where we have the responsibility under the statute to created us to maintain the government's consolidated database, unknown and suspected terrorists, called tide. we share a subset of that classified database with the terrorist screening center which is then responsible for using it for various screening purposes, airports and the like. some of that information is shared under sharing agreements
with other countries. i think the important point is that when it comes to u.s. person information, that for example nsa collects, that they have a series of rules and laws and policies that limit what can be shared about u.s. persons and minimization procedures based on what they collect so that at every step in the process, from the initial collection of that information to its use in classified databases, to its use for screening purposes, and finally potentially sharing it with other countries, there are a number of steps all designed to protect the privacy and civil liberties of u.s. persons that are taken along the way. i think that's about the best way to answer it. it is probably a longer answer to get to the basis of your question but there are a numb beof safeguards built in to that to protect the privacy