So americans at data are not indiscriminate research by intelligence authorities. This event was hosted by the association of former Intelligence Officers. Okay. Im up here during my tap dance. It is a pleasure to introduce hate is the chairman formal general counsel to the National Security agency. He is going to introduce our first speaker do it. Okay thank you. Jim. I am really delighted to be able to introduce matz olson. As you know we advertise and we did until the events over last weekend and she is obviously tied up permanently or at least for some weeks. We asked who can talk about this topic of pfizer . Her suggestion and the suggestion of the white o house wass that we ask matz olson to o it. Matt, we are grateful to you for doing this on short notice. Matt is perfect for this topic. He has a deep experience in the Intelligence Community. It was general counsel at the oe National Security agency, in between there before he came back to the Justice Department he now runs the national nationl security division. He was general counsel. He has a long and deep experience and has been one of the principles for renewing section 702. Why dont i just start by asking you matt, what is the 702 program for everybody they may not know as much as you or i know. I think they would really like to hear what is the 702 program . Where does it come from . And thanks. Thanks everybody. Im really pleased to be here it is great to be among such a committed group of folks to talk about this. I have to say i walked in the room and am shocked to see a full crowd consider the director of National Intelligence you have a lawyer from the Justice Department im kind of shocked you guys all still showed up. Maybe he didnt realize it until now and you are stuck there was a lawyer. [laughter] but obviously its totally occupied with the events of our time. I will say shes is a great friend and a brilliant leader we are lucky to have her in that role during perilous times like this. But i am happy to fill in for her as best as i possibly can. So yes section 702 is a part of the point of surveillance actives added in 2008. Most importantly it expires in two and half months at the end of the year december 31 at midnight it will cease to exist and has a sunset built into it. It is without question the single most important Legal Authority we have at this point. It has proven since its passagey indispensable and irreplaceableg foreignti intelligence. Some of the people here may remember coming in days or weeks after 911 a president ial program. Can you give us a feel for the ultimate origins i was adopted . It really did grow out of the program in some ways the following 911. It was a recognition but we had with fisa which was passed in 1978 and is initial form was not up to the task of collecting foreign intelligence at the time we focus on al qaeda and counterterrorism. So basically a law passed in 1978 before the internet passed beforere fiberoptic cables in e may communications are carried that is technology dependent. We were using pfizer the traditional fisa getting probable cause warrants for targets designed for people in the United States we were using that same tool to target people outside of the United States. That was necessary because they pfizer was written it was not designed to keep up with the times. And the type rate of 2005, six, seven, eight there was recognition is not up to the task and it was not necessary because were given protection to target in pakistan without a u. S. Person getting the same rights as u. S. Person in the United States in terms of how pfizer was being applied. I was part of the effort back then and you are tracking this and working on this or at least the benefits of it we convince congress at the time to change pfizer and amended with section 702 to allow us to have a mechanism to target people without rights but people using u. S. Service providers. The challenge was we had a lot of targets using infrastructure our infrastructure second to none in the world they were using that but we did not have any way to assist the government. So we change the law to have a programmatic approach we go to the fisa court once a year with the procedures that we are using to determine if someone is anth appropriate target overseas and the court looks at those procedures and determines whether or not they are consistent with the statute, consistent with the Fourth Amendment and the constitution. They are the Court Authorizes the director of National Intelligence and attorney generalra together due to the Service Providers the nazis with the directive that requires them to cooperate with the government. Status 2008, focus on counterterrorism this has proven to be absolutely indispensable. But across a range of targets and threats generating intelligence these statistics are quite shocking and impressive like 60 of a pdd article has some 702 collection in them. Because you are talking about u. S. Service providers if you access to gmail for foreign intelligence this is what the government is likely to use. Lik. There are other ways to get around some of that but everybody is providing services. Every communication that goes is also subject to surveillance under this program. Theres a lot of stock there. Why is it controversial . Thinking about section 702, they are always controversial. We are always trying to balance the National Risk protection. Thats true with pfizer in 1978 which grew out of the church committee. It was true certainly true in 2008 when we passed section 702. Its controversial because whats at stake, National Security interest, protecting the country, all sorts of things. How do we do in a way that protects the protects the Civil Liberties and privacy and true to constitution. Its particularly controversial right now because of the way that section 702 works which is while we are targeting somebody overseas who is not a u. S. Person there are certainly occasions and not infrequently that that person is in communication with somebody the United States. The person in the us is not the target, their communications will be collected because of course we are talkingll about communication with two people a least. So we need to be we need rules in place to protect the people in the United States and what we see in terms of controversy there is particularly how the fbi the one agency that operates inside the United States has access to system of the data, how they are able to use it. I think much of the focus of and concern has been on not so much nsa and cia use of this data as a foreign intelligence tool but the fbi. Yeah, and the fbi only actually getting access of 3 of the take and its the 3 that is tied to a predicated fbi investigation. They raise their hand, we are investigating this target, please put him on 702 coverage and then it goes that collection goes into a database. Exactly. It often gets lost in the debate. Nsa is responsible for implementing 702. They review all the targeting decisions and i cant tell you how great it is to talk to a group like this, i dont have to go back and explain targeting to such an informed group. They inform the targeting decisions. As you said exactly, stewart, the fbi is 3 . They focused on targets that relate to theirn investigations and those investigations can be counterterrorism. They can be counterintelligence intelligence, cyber and you have written about this, increasing cyber investigations. So they get that subset and then they are able to work with that but onlyt that person, 8,000 target. So the privacy if i can channel, if i could channel my libertarian, the government without ever getting a warrant to carry out a wiretap has collected all of these conversations of americans, they werent the targets but they are in there and now the fbi hey, you know we are actually interested in the americans and conversations of foreign targets. Its those queries that have particularly been of concern. And i will say the fbi has no nice way to put it. They are screwed up pretty badly in administrating the limit that the law imposes on those searches and that produced the biggest flop of renewable cycle. Yes, i will talk about the screwups is the right word. And to take a step back the way it works and the way its worked since the beginning and still works is that imagine theres a collection against somebody in syria, right, isis member in syria. And that person is on coverage on the section 702, nonu. S. Foreign that has foreign intelligence outside of the United States in syria. Theyn may have they may be talking to a lot of different people, people in syria, people in iraq, right, but they may also be talking to somebody in the United States. And in reviewing the collection, nsa makes that that person is talking theyre communicating by email, for example, by somebody in the United States. You see that one end of the communication with the person of the United States but in order to target them or focus in the person in the United States, which theres a reason to, we certainly wouldnt want there could be a real concern if theres actual planning or or recruiting of something in the United States. The fbis. Would have to get a traditionall warrant. They cant focus without them going through title fisa, going to fisa court and getting probable cause. That would happen all of the time. Its the incidental of u. S. Person that triggers them focusing on the person in the United States. I guess i would say we should talk a little bit about the focusing on u. S. Targets but a big chunk of what got the fbi in trouble is during what i would call low probability high risk searches, right, they say, this im going to treat this person as a confidential source or we are going to bring this person for a meeting with a top official. I better check to make sure they are not in communication with a foreign right. I will run their name through the system and that is not consistent with the rules that have been set up for the database. Exactly. Here its important, again, to get a little bit more in the weeds. Theres the targeting decision, who we are targeting, who the government is going after and then what we are talking now about with the fbi, what youre mentioning is a query. The fbi has that collection based on the targeting decisions they do withcan the 3 and they can query it using search terms and there are many cases where too many cases, the fbi queries lawfully collected data that the government got through the targeted where they queried without meeting standard. The standard is a basic one, is the query is searching the data with a search but is it reasonable likely to return foreign intelligence. So instances where this is going back a few years where the fbi didnt fully appreciate need to demonstrate the standard. Yeah, they might have a meeting where theres a u. S. Government official was going to attend a broad meeting or Something Like this. We will make sure everybody that is attending that meeting doesnt have isnt a risk. Well, theres no reason to believe in that scenario, foreign intelligence in the 702 database. So that would be a compliant incident. We found as compliant incident. My team, the lawyers at the Justice Department do compliance checks at the fbi to make sure and in the last couple of years have taken real serious remedial steps to address them. And youve gone through at least 3 stages. Try to bring bring these the procedures. I have to tell you, i think the law is wrong and the fbi is right. There are a lot of times people coming to meet the president , i want to know whether they are talking to terrorists or not and even if i have no reason to believe they are talking to terrorists i would like to check. I would like the fbi to check. Thats not what the law is and thankfully you ought to be revising that. I think that is what is motivating the fbi. The think to think about, though, they do have a lot of databases to check. They can check open cases, they can check public information. Theres a lot that they can but we are careful and concerned what we call raw fisa has the kinds of communication and we really doun now, now we really putting that off, that requires special permission to check even in those circumstances. That makes all the sense in the world. 98 of the searches produce no hits, they were checking to see if something terrible was going to happen and 98 or 99 there was nothing to worry about. Well, almost all of the searchings turned out to be violations and when you hear about surveillance of americans by the fbi and shocking numbers of searches that are done aimed at americans, its those kinds of searches, almost all of them. Right, and sort of reflect back on i testified in the Senate JudiciaryCommittee Hearing this past summer on section 702 and reauthorization and i was there with the the Deputy Director of the cia and Deputy Director of nsa along with the Deputy Director of the fbi. Leaders of the Intelligence Community open hearing and i was sating Deputy Director of nsa, previous general counsel, so im sure we have the same reaction, probably 3hour hearing where the number of questions to nsa, Deputy Director, zero. Zero. Zero questions for the nsa. Unless youre the fbi. Youre absolutely the target, you know, of their strong questioning and distrust. So it is the fbi has got work to be. I will be the first to say. These are screwups, this is a real problem and we cant have the fbi where theres lack of trust with the fbi and thats why when we found the problems two years ago the leaders, the attorney general, the fbi director with our lawyers worked to implement some changes in the way theke fbi does the queries, the searches of the data. Very simple one that made huge difference. The way fbi was doing it two years ago and previously was they would do, they would conduct a query, queer write of all the databases and automatically by default included raw fisa. Including raw section 702. That was if they wanted to check their open cases, that at the same time they did that it would automatically run that query against raw fisa and so a simple simple flip of a switch and has reduced queries by 93 . Inadvertently thinkly search the datas, early in the case, open new counterintelligence case on poc spying, i will run the name and the name would check all of the database and they didnt meet the standard for searching the raw fisa. We just changed the one setting you have to affirmatively opt in and you have to write your reason and and record your reason for searching it and weve seen not only a dramatic reduction in the number of u. S. Person queries but now the compliance rate is in excess of 98 . There are a lot of people on the hill and Civil Society and the like who would like to help you with solving this problem and the solutions are good deal and why dont we take fbi out of this. One of them is probable cause two others and secondguess that determination. Your thoughts on these other recommendations . Yeah, so on the first one, stewart, i will talk about first, section 702 will just be available, the collection is available to cia and nsa and not the fbi i think is deeply flawed and actually really dangerous. And probably dangerous for everybody in this room. Nobody wants to be looking at u. S. Personal. Concerns of u. S. Person data and anything that touches u. S. Person data when youre an foreign intelligence like nsa or cia. Beyond that, to me its a its abasically forgetting one to have fundamental weapons of 911 that you cannot have a law between a foreign intelligence focused agencies and the one agency, the fbi that has authority to act in the United States. I mean, really 20 years addressing 911 is the need for the fbi and cia and nsa to work close together when it comes to National Security. The transform thation of the fbi, focused on making sure that exist but exist in a way that still protects Civil Liberties and privacy. You cant have from my Vantage Point working at nsa and fbi, you cannot have a system where the one organization with responsibility for acts inside the United States with the authority to arrest fbi, nsa do not have the authority to arrest people in the United States, the fbi does to disrupt a threat. The fbi is, you know, the organization with the mission to understand those that emanate whether its a cyber threat and to take steps inside the United States to stop it. That could be like i said in the last it can be going and knocking on the door of an American Company and say, we have seen prc efforts to compromise your network. Here is what you need to do to stop that. Thats the fbi job. You cannot stop them if we were to take them out of the ability to have access. Deeply flawed suggestion to remove the fbi. So the Oversight Board have different recommendations. I want to cut the fbi out but do want them to get a warrant at least when they were at the point of something in the database that they wanted to see and i just did a podcast for those ofof you who are itlle distributed later or tomorrow in which we interviewed 5 members of the board talking about their recommendations so this is not enough on 702. That recommendation was sort of split, two people said, well, we think you apply the current statutory standard but have the judge make the call and one who said, no, it has to really be probable cause and how do you feel about those recommendations, is that workable. Just on the question, the proposal that fbi or the Intelligence Community, really, across the board, not just the fbi should go to a court, we are talkingg about Intelligence Community community thats clearly lawful that is sitting in the Intelligence Community, fbi, cia, holdings that before they query it, swift it, sort it or look at it they would need to the ask permission from a judge to meet probable cause or some standard. I think this is a really bad idea and, i mean, for a number of reasons. They are not legally required. Every court look at the question does the constitution require additional approval by a judge before looking at lawfully collected information and to get a warrant every court that has looked at that said, no, no court has said you need to go to the court and get you need to go and get additional approval to look at information. This is aor policy choice that e would be making not a legal required one. When it comes to 702, policy choice that was hamstringed the Intelligence Community especially the fbi. In parts is because of the sheer numbers. Like there are thousands of these checks and often done at the early stages of an investigation, the fbi agent is opening investigation on a potential spy network. Youan know, they have maybe, you know, from a foreign intelligence that there are 25 phone numbers that are that were found in possession of a known mss officer. 25 phone numbers of u. S. Area codes. Some of those do we know at that stage are they targets of of this intelligence officer, are they witting, unwitting, victims, are they working with the prc. We dont know updates. The first thing you want to do is run the numbers, the u. S. Person identifiers through the 702 database to learn more. To do that at the speed of which we need to dohe that, again, whether thats espionage case in particular, hours matter. For the fbi to stop working on their investigation to write an application to go to a court, i work on these applications on on traditional fisa, we have to show probable cause. They take weeks often months and hundreds of pages long. The judges take weeks to look at them. So this is not an agile way to approach, you know, National Security. So itt would be unworkable from just a sheer numbers and the time required. Itll also in my example sort of shows theres not going to be probable cause and not meet probable cause standard at early stages of the investigation. You have a potential compromise of a network, we may want to lack at technical identifiers like ip addresses, run those right, run system, through those section 702. The idea that we would be able to show probable cause or that we would havepr to stop while theres an ongoing compromise, cyberattack against the company and going out for judges permission to do something not legally required, we have to ask for a judge for permission. Im not sure how the judge would decide, what would qualify a judge to say, yes, we think theres foreign intelligence information from that data. Something you have experienced in the room doing. Theres no reason to think that judge has expertise in the area. The agencies know because we heard it from the Civil Society folks and really from some of the commissioner or board the board members, they think this is a solution not just for the fbi but for all the agencies. If youre going to handle u. S. Person data at the agency because theres a good reason for intelligence purposes, they want traditional review of what you do before you get to do it. So this could be a major change. Exactly. Really important points. Its focused on the fbi and section 702 but theres in november limiting principal. The goal to require agency including nsa and cia running queries of lawfully credible information. A lot of good things to say about the program. Statistics about how often this ends up and they said its essential that it be renewed. So unbalanced, whats your view of the report, the report is sort of missed opportunity. You have 5member board, split 3 to 2. Two separate reports theres a 3person report and twoperson report and they grewed on one thing importantly and that is that the program is extremely valuable and all fiver members agree on that but beyond that they really didnt agree on and i think its a missed opportunity and prior section 702 where authoritative and influence. The two reports effectively kind of cancell each other in a way and i think it would be they wont have much influence and i think its an unfortunate missed opportunity. I worked on this issue of warrants that we have been talking about going to a court for preaoff. The twoperson report said that the majority currently dismissed examples. The twoperson side said that the government provided examples of intelligence operations that would not have been able to be carried out if that standard had been in place. So literally said the intelligence missed if the majoritys recommendation and i will say from my part. I was in the room when we provided those examples because we gave classified and unclassified examples. The classified examples of where, you know, these rearies queries were valuable. Declassified section 702 and was able to disrupt kidnapping and assassination plot in the United States. Ongoing assassination plot. To me a missed opportunity because these were examples that were told as a whole and 3person majority to come back and say, we think you should get warrant or get preapproved from the court i think its a really its the wrong wrong suggestion. It would really hamstring us. I want to change gears a little. We cant have this meeting without recognizing horrific and barbaric videos coming out of hamas attacks in israel and to wonder what that means for the United States. [laughter] but i do want to ask, what do you think this means for Homeland Security and National Security inside the United States . I appreciate you raising and, of course, echo the word to the president and the secretary of state, we stand in solidarity with israel and the israeli people at this time. We at the department of justice with the fbi working very closely with federal Agency Partners as well as partners around the world and, of course, israelis to do everything that we can to support. Much of our focus as you can imagine within the department of justice and the fbi, the u. S. Citizens who have been killed and those who are missing. We are working, you know, night and day right now on that, on challenges. What i would say in response in part is goes back to 702 for a moment because like i said in the past authorizationing section 702 is one thing that is keeping me up at night as we approach the sunset and sleepless nights this week in light of what is happening in israel and gaza. I have no doubt in my mind that 702 is helping us understand the picture whether that potential threat emanating from overseas into the United States, what hamas is doing. Of course, we are always worried about iran as a threat. So theres no doubt in my mind that section 702 is part of that and i will say i really cant imagine what it would be like if congress didnt reauthorize section 702 and we were goingf through a crisis like this the without authority of foreign intelligence because so much of what we are able to provide the policymakers as an Intelligence Community is information about the nature of what is happening in israel in gaza as well as the region. I do want to pick up on an area your office is essential for the u. S. Protection of power and relevant to both the russiaukraine war and decoupling and increasingly poison conflict with china over technology and thats airport controls and sanctions. And military purpose also unite that the weight we deny it is by telling the private sector not to sell it. And as you probably know there have been a lotot of stories its living through anyway. I am not sure that completely. But at the end of the day it all comes down to the people who are selling the product knowing they will be prosecuted if they are caught violating and that is your job. So i guess i would ask you, how well do you think we are doing and enforcing those controls . And the where is the point we remains overdone it . Quick step back aus bit. This is a very important set of questions it is the responsibility of the Justice Department as part to enforce sanctions, laws. And as you point out these have increasingly become an important parts of the National Security toolkit. Certainly not the only part but it is an important parts. You saw for example set up a task force to go after russian assets execute have too. An[inaudible] [laughter] always part of the question. Significant assets. But obviously the goal is to put pressure on putin and the kremlin by going after those and supporting them. On the export side significant steps this year not just focused on a rush a bit ironic. That would seek to obtain access to our most sensitive and valuable technologies. Technologies like Artificial Intelligence, quantum computing, Semiconductor Technologies that have the potential in the hands of our adversaries to change the balance of power. We started a strike force the Technology Strike force to bring together the department of commerce the department of justice fbi agents around the country to 14 locations to focus on Sensitive Technology that are being sought by our adversaries and we present from falling into their hands. The carrots we go to companies they need to have in place to manage the risks around the facts technologies could go into the wrong hands and. To intermediaries they often go to other countries and other shipment points and other parts of the world. What we haveve seen and brushest after the intelligenceor agencyo set up the Procurement Networks that invader control laws. So setting up strong compliance programs we are what are we responsible for we find the violations were going to prosecute. And we have prosecuted a number of cases involving a rush in the past few months. Two involving china and trade secrets. We are increasing our enforcement efforts. Too really prevent these sensitive technologies and falling into the wrong hands. It is not your job it does seem to me how russia is doing. But people are willing to pay enough and move these goods in enough hands stuff that is nearly maybe it will be inflated by 30 or 40 . We are going to be realistic were not going to totally cut off. Go. Click the impact. It is an important part of the overall effort. But russia now is the focus because of the battlefield. Was that u. S. Made Technology End up on the battlefield. That is unacceptable. More long term may be china and their efforts to obtain Artificial Intelligence technology. That could be export control violations for the other thing to do in the development of justice this to address that stem from investments in u. S. Companies. Thats another aspect of our work that is designed to address technology and present information from going to china. Cook said doo it to get some questions from the audience. There is one last question will ask him to come up and asked the question he has got. When you came in youve got rid of whatt had been the China Initiative. That raised questions are we really going to continue to have an effective, and aggressive Counterintelligence Program given what chinas trying to do in the United States . Do you get the sense of what you put in place of the China Initiative . . Quick sure. We ended what was then called the China Initiative. The goal is to not go backward but tobu go forward. Advancing our efforts from china and at the time were going to remain relentlessly focused on that threat. Beyond any threat we face in any other country over the longterm. The reality is were facing threats from a variety of state actors. If you remember when i made that announcement it was in the midst of just before russia invaded ukraine. And here today we are obviously very focused on the threats from ironic. The reality is we face threats from a number of different countries. Including north korea in that group. A we need to have an approach broader just china. Again at the end of the date we focus on that threats. Judging by our record we have brought a number of cases. In the context of the export control cases i mentioned. Stopping Software Engineer who took apple proprietary technology to china. To going after the recent indictment and to u. S. Navy Service Members who providing classified intelligence to the prc. To reviewing state owned enterprises and u. S. Companies. And also we call transnational oppression. Setting up police stations quads ice police stations in the United States to repress dissidents in the United States. It is a serious threat. It comes from a number of vectors and we are very focused on it. We are also very focused on things across the board. The complex t environment sheet would have described in much better detail than i can that was white we made that decision. Again, just on the record were saying very focused on the china threat. Okay, do you want to take over get some audience questions . St okay. The first one is how has Technology Influences successful has advised epidemic keep up with the speed and communications . It really is a great question. I taught a Law School Class that was the theme. How is technology and the law and our policy keep up with technology . Something we think we can write about all the time its always a challenge. Our laws are lagging behind technology. That is true that istr a truism. Pfizer i think set an example of congress coming together and a bipartisan fashion bird both in 2008 and prior times. An understanding it was that necessary change for pfizer in order to pfizer to keep up with technological changes but not just the internet but overall Service Providers will provide services to their users in a way they can interact with the government and that is overseen by the fisa court. The really elegant solution to that technological problem that had not been invented to step with the times. Across the board we are looking at ways that our strike force on technology is another example of where we are focused on changing technologies existing laws export control laws to prevent the technologies. This next question is an interesting one. It is very a relative given to whats going on this week. How has it helped you uncovering Fundraising Efforts in the United States . Cannot get into the details on exactly what we are doing and how for the reasons that is the case though that 702 is exactly the laws we need in order to understand overseas that come into our country whether that is fundraising hamas recruiting, planning for the fbi to query that data quickly and in an urgent fashion given the state of affairs today with the hamas attack is an essential part of our overall security. One final question. I think lessons to the d and i what about using crossing to share information . I was the director of the counterterrorism for three years and 2011 and 2014 my office was at Liberty Crossing along with the director klapper and maybe some of you all in this room. Its a physical place but also an idea for some of the great reforms post 911. The fbi located there and an entity it brings together fbi, cia, nsa, dhs, all in one place to focus on counterterrorism mission. It is the place that is the clearinghouse for all intelligence whether its counterterrorism, counterintelligence information, and in fact it is the place that suggests section 702 information sis present but not just present but available to a wide variety of Intelligence Officers they can make effective use of it. And again that is happening in real time and it is happening fast in the top center for example an weathered state and local officials our weather our foreignn partners and in particular the fbi. Maps, this has been terrific. We really appreciate it. I am a little worried you have had practically every good job in the Intelligence Community. [laughter] there it may not be any rat left for the rest of us. But what do you think your future holds . Are you going to go back to the private sector . Youve done their well to put what are your requirements . I am at the department of justice this is where i started my career in the Civil Rights Division 30 years ago. I did not have any plans to be a National Security change the trajectory of the career. I could not beco happier to be where i am in this part of the journey. You have to also run for the next office. [laughter] you have run out of other stuff. We considered campaign if they had it. Possibly so me and thanking him. [applause] [background noises] [inaudible] we have a number of distinguished guests with us today. [inaudible] [applause] watch cspan series in partnership with the library of Congress Books that shaped america will feature the common law by Oliver Wendell holmes junior written in 1881 and two decades before homes will become the Supreme Court justice. The book is from the series of lectures he had given on criminal and civil law and other legal issues very controversial at the time holmes wrote life of the law has not been logic. It has been experience. Jeffrey rosen president ceo of the National Constitution center will join us to discuss the book. 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