Transcripts For CSPAN3 Future Of FISA Part 3 20170615

Making the best possible policy decisions and i think thats a concern as well. Matt olson, thanks very much for joining us. Thanks, everybody. Thank you. [ applause ] this is a recent discussion held by Stanford Universitys Hoover Institution on the future of section 702 of the foreign Intelligence Surveillance act. It gives the Government Authority to monitor Internet Activity on nonu. S. Citizens to gather foreign intelligence. Its said to expire in december unless congress renews it. This panel is about an hour. Were about to get started again. Theres still a lot of seats in the front too, so i encourage people to fill in as much as possible. Im russell walden, the senior manager for external affairs here at the Hoover Institution. We will focus on the law and Civil Liberties, section 702. Im going to do a very brief introduction of our panel and turn it over to our moderator. I start with julian sanchez, a serve fellow at the cato institute. Alex abdo is the senior attorney with columbia universitys First Amendment institute. Formally a senior on the aclu where he has argued cases federal Court Related to nsa surveillance. Next we have susan hen asy. Shes a fellow at the Brookings Institution and the managing editor of law fair and previously served at the National Security agency. Closing that out we have the general counsel with the federal bureau of investigation, thats james baker. Our moderator for this session is shane harris who is a Senior Writer on intelligence and National Security and Cyber Securityrelated issues at the wall street journal. He is also author of a fantastic book on Cyber Security issues titled war. With that ill turn it over to shane. Thanks, everybody. Can you hear us okay . Were here for a nice cozy panel this afternoon. Thanks very much for having us here. Ill say personally as a journalist covering section 702 and related issues, the Civil Liberties questions have been the most top of mind for certainly most americans and my readers its been top of mine so im pleased to moderate this panel and we have a terrific group of people up here. Im going to talk for the first 45 minutes or so and then were going to open it up to q a. Please, we want to encourage dialogue with all of you so please think about questions that you want to ask and well get to as many as we can towards the end. I actually want to start with jim baker. Not to put you in the spotlight or anything. I think you may be the most senior representative of a Government Agency so you get to stand in for the interest of Law Enforcement in National Security in this. I want to start with a basic first order question which is, can you just explain to us in plain english why section 702 authorities are important for the work that the fbi is doing. What is the baseline of why this is an important capability that i presume you will say needs to be reauthorized . Thank you, and thank you to the Hoover Institution for having us here. 702 is vital to the fbi and to the Intelligence Community. It provides us with a wide range of foreign intelligence information, especially including actionable intelligence stuff that we can actually do something about. So thats critically important for us. It is something that the fbi takes in and combines with other information that we have lawfully acquired just as we lawfully acquire the 702 information. We pull that together in order to connect the dots. It was one of the key findings of the 9 11 commission. It tells us that the government did not connect the dots. It combines 702 information with all the other information that we have and we check our databases against it and try to figure out when we get a tip, a lead, information from a variety of different sources what do we have in our existing holdings about a particular matter, a person, an email address, that kind of thing. So we use that to guide our investigations to ferret out what we need to focus on, what the threats are and move forward. Its vital to our day to day operations. Well get to this im sure but i think you would argue that without it what would it look like without it . We could talk about how im not going to propose other legal methods that we could if it was taken away today what does the landscape look like for the fbi . If its completely taken away, then the fbi is losing a vital source of collection on very important targets. We try to be very focused at the fbi. The fbi is very focused on which target it asks the Intelligence Community to target or what selectors we ask the community to target because, first of all, we have to make sure that any of our selectors are associated with a full investigation, meaning the highest level of predication that we have in order to open an investigation. And so if we were to lose it all together, we would lose vital collection on a range of very important targets. It would also deprive us of dots. It would deprive us of lead information, of an ability to connect people to threats, connect threats to particular individuals, and ferret out exactly whats going on. Susan, recently the nsa has amended some things, particularly the collection of socalled about information. Walk us through a little bit of what that means and what you think the practical reasons for doing that were and what the effect of that may have been. Im nervous to say this, i see some familiar former colleagues faces. Hopefully they wont shake their hands if im getting it wrong. Right, so this is a highly publicized decision that the nsa announced i think about a month ago, a few weeks ago at this point so essentially voluntarily end whats known as about collections. Under 702 there are two forms of collection, upstream and downstream. Within downstream theres only two and from collection but with an upstream theres another category about collection. Upstream accounts for about 10 of 702 collection and about collection within that is. 02 . The former Deputy Director of nsa wrote a very comprehensive paper on this and i think those are the statistics that he cited. Nsa announced that following a number of compliance incidents they decided to voluntarily end this practice. This set off a series of controversies, first because nsa had in the past represented that this was important and vital and necessary, and so there was some criticism that that was somehow not an accurate representation because now they didnt need it anymore. I dont think that thats quite the right way to view this. We know about collection does pose a particular heightened risk of collecting Domestic Communications, Domestic Communications that happen to mention the plantarticular targa u. S. Entity. So american airlines, you can imagine the particular utility of that form of collection. In recognition of those heightened risks, there were additional safeguards created in order to try and mitigate against the risks. There was a series of inadvertent compliance incidents. These occur, they happen. Theyre very serious, the fact that theyre accidental doesnt minimize their significance, although it is quite relevant to the current discussion. Those were selfreported to the court so were seeing exactly the process that we want to see, compliances being detected, being selfreported. Then a determination was made, but rather than invest the cost of coming into compliance, doing the things that were going to be necessary to ensure those compliances wouldnt occur again moving forward, it was better on a cost benefit analysis to eliminate this form of collection. Nsa had said that they are not able to eliminate this form of collection without also losing other important information. So theyre saying that there is a cost here. This is about risk management, so again this is a process that we want to be seeing. We dont want intelligence agencies to take a collect it all, get everything we can. We want this kind of voluntary and ongoing assessment because this is such a critical area. That said, i think its a little bit of an illustration of some of the potential perils here. Whenever we evaluate the difference of nsa saying it was a Necessary Program and worth it previously and in this instance deciding to no longer go forward with it, in examining the cost benefit analysis, as we add costs, eventually costs will outweigh the benefits. We know thats true for everything. Even if you take those core vital parts of the program that matt olson was talking about, if we put enough cost there, that will outweigh. So i think this is why in this instance i think it was a prudent decision, the appropriate judgment, but i dont think that we should sort of take for granted the notions that there arent real costs are and there arent costs that we put on additional reporting and technical requirements. One question on the compliance incident. How do we know they were accidental and inadvertent . Because there was a declassified court decision. While it was extremely critical of the nsa on a series of metrics, it was quite clear that it had no indication that there was any sort of intentional m l malfeasance here. So, we have a program that the Intelligence Community says is vital, responsible for a large amount of intelligence, but it appears that the Intelligence Community is willing to i guess they would see it as amend the program when they feel that its made mistakes or its gone too far. When you look at this amendment about collection, is that satisfying to you as a Civil Liberties perspective or as susan said, responsible for a negative jabl amount of information . I think its hard to know exactly what to make of it given that the nsa hasnt disavowed that they will in the future reseek this authority. Th theyve eliminated this portion of it but there are a lot of technical questions that go along with that. And it raises i think a different question. I have a slightly different take on what it says about the nsas prior representations relating to the vitality of this part of the program through section 702 more broadly. When the pclb was examining 702 Civil Liberties oversight board. Right. It focused pretty heavily on about collection because that was one of the more controversial forms of collection. Based on representations made to that board by the nsa, they issued reports that said that it was a technical necessity to conduct about surveillance in order to be comprehensive and even to from surveillance and they made it sound vital. While i agree with susan that at the end of the day its a question of cost benefit analysis, the nsas previous representations made it sound as though the benefits were too high and the costs of losing it were too high to ever consider losing that. And now almost on a dime they flip and eliminate that authority. But again, its hard to know what to make of it given that they havent disavowed to seek it again in the future. Susans right to point out that the reason we know about the compliance issues with it is from this court order. The only reason why the court order knew what to publish about these compliance incidents is it was selfreported by the government. We have the governments representation about the scope of the problem and whether it was accidental or not but we certainly dont have, i dont think, a full adversarial sense of the story. Does it feel that this modification which was obviously portrayed as a very big concession is actually just a tone token gesture . You say its hard to know but what does your gut tell you . My guess cost, the kind of present cost to bringing the program into compliance with what it was wanted to be, they decides youre too high at the moment and thats preserving flexibility. If Congress Suggests codifying it, anding 702 to prevent the nsa will start about my guess is nsa will oh posts that. Youre one of the better explainers of not just intelligence policy and surveillance law but you articulate the Civil Liberties component of this as well. What are we really worried about here . Were hearing about a program that has huge compliances. As jim baker said, its very targeted, very focused. From your perspective right now, headed toward the end of the year and the question of reauthorized this, what top of mind Civil Liberties issues you think people in this room in particular are going to have to confront . Sure. The central concern always with intelligence authorities is the political misuse of intelligence thats gathered. Its a somewhat different concerns from primarily lies in the criminal surveillance text. And two halves to that. One is an insufficiently unaccountable Intelligence Community using the data thats collected but somewhat kark ka churs now of j. Edgar hoover. Yanking the leash on his nominal overseers, using the power of the information hes amassed about them. The other is the insufficient autonomous intelligence agencies, thats fine, loyalists to the Administration Tower using it to get the tools of evidence. One of the reasons i think its raised as a special concern the scale is magnified so dramatically. If you think back to the kind of intelligence scandal that was exposed in the 60s and 70s, these involved first labor intensive deliberate targeting of people like Martin Luther king and civil rights leaders and also because it involves signatory for that kind of abuse that was after the fact, something you were likely to notice. I think at one point in the 70s, there had been a decadelong wiretap. They were saying, what is it there for . So at least shut that down. One reason its so discerning is youre talking about every year, between 90, hundred,000 persons have their information targeted for interception. And then being stored for years at a time. The concern isnt just will there be improper targeting of someone and then to prays back if that information is going to be used, do you trust that this sweeping kind of black hole aperture, not only is he going to be improperly targeted from the inception but wont be properly used after the fact. Especially when you have these kind of endemic compliance issues, that is, when theres a formal procedure designed to block access are routinely being ignored. That seems to be the case years after the fact. Its very difficult under those circumstances to detect abuses when they do occur. The abuse part under circumstances where you got that database is about what someone knows when they leave with that information and what they do with it after they leave the office. And thats the sort of thing that after the fact is extremely difficult to track. The issue of a reprieve with a much diminished ability to detect it when it happens. Back over to joe and suzann on this particular point. Youre raising the issue of clients routinely being ignored. I think its been the fear of many people on the Civil Liberties side that yes, you have this extensive, exhaustive, some might say Compliance Regime but there is a tendency to ignore. Is this routinely being ignored . Is that an unfair characterization to you . Nobody ignores the policies and laws. Thats not the culture certainly of the fbi. Thats not the way we operate. Thats not the way we manage. Thats not the way we lead and people are expected to comply with the law and comply with directives and for the rules basically. People make mistakes. Were a human enterprise involving complex technology, so tell me where else in society there are not mistakes involving humans and technology. Right, so the key is that there are multiple overlapping layers of compliance run by a variety of different folks, so for the fib, right, we have the department of justice. We have the odni, the Inspector General department of justice, fisa court obviously, most importantly and we have kaurngs conducting oversight, having hearings. Staff members come and get briefed and so on. There are multiple levels of oversight that are there to prevent exactly what julian is worried about. I understand why people are worried about it. Whenever the government does anything with respect to the collection of communications regarding americans, people should focus on,000. People should think about that and the American People should make sure that there are adequate protection in place and that there are the right people running these organizations. So thats true. What i would say is its just not how we plate. Mistakes are made. We try to identify them and figure out what went wrong and correct them. Yes, so i do think its a tremendously unfair sort of characterization certainly of the current sort of discussion line, so the entire set of rules that were debating right now are designed to prevent exactly the kind of abuses as julian describes, recognizing the seriousness and the gravity of those historical abuses, right, this is part of the reason the laws were passed in the first place. So the first i think sort of mischaracterization is the notions that there are all these citizens outside the foreign citizens and United States sbhejs committee are just willynilly. While its not a constitutional question theres something inherently wrong about that. This takes place for an intelligence purpose. Its highly articulated. This is not a warrantless business. Its sort of a modified requirement because of the operational equities. Its not 90,000, 100,000, you know, what the number that is those are collected for a purpose, and then for important purposes and purposes that congress and the courts and the executive branch all recognize and agree are important purposes. Right. Thats the functioning of our system. The other sort of thing i think is misunderstanding, its the thing that compliance is really just figures they make a mistake and they decide whether or not to tell the court. Compliance is a multilayered apparatus. Theres bakedin technical elements of compliance. Those are designed to avoid mistakes from occurring in the first place but also create conditions in which when mistakes occur or when intentional violations occur, theyre detected. Theres also daily reporting that occurs. Theres a level of sophisticated and i think some might say intrusive congressional oversights and then of course on top of that, there is the null certification process to the court and the Inspector Generals. So there are despite sort of the characterizations that occurred after the other disclosures, there hasnt been credible allegations that nsa has ever not approached those mechanisms in good faith, and so i think this really is a debate about everybody is approaching and in good faith. There are these pockets for very serious abusings. Everyone recognizes that and the question here is how do we best design a system thats going to prevent exact this sort of situation . So yeah. Its ok. Nothing wrong. Were all in this together. There are a couple of points. One is that i think few people are in the position to question the way these programs are implemented. The one institution perhaps in the best position is the fisa corps. I can read two sentences. The court is nonetheless concerned about the fbis apparent disregard of the rules and may be engaging in similar decision makes. For me, the bigger scandal is not failure to comply with the processes that we have. The biggest thing is the pros ess we have is bad of permitting wide kbhuks. The thing julyian alerted to, i think its in fact warrantless. Any foreigner could be the subject of surveillance because the requirements are minimal. They need to be suspected of having something to do with the foreign affairs. The sorgss that you report on internationally. And for the americans to have stepped off in that wide aperture, the main protection is the minimization materials and those are riddled with exceptions, one that we havent discussed today but others by the fbi and other agencies, in part for things unrelated. What is the evidence that thats occurring . The fbi now gets a raw Data Collected under section 02 and it has the chance to query the record. They have this enormous information that jillian described. They can dip into that and query it for any u. S. Persons name. That can be done as a threat assessment and look for evidence of criminality unrelated to foreign intelligence. I think thats a in my view, an end run around the fourth amendment. The response it offered theres a frads that jim used a minute ago and used earlier today is that once a government lawfully acquires information it can do anything it wants to with it. Its been closely tied to the purpose of the collection in any context of surveillance. A quick example. The Supreme Court addressed the question of whether local Law Enforcement can collect dna of arrested suspects. The krort ultimately blessed this dna collection but it was critical to the nsas ruling that they be used only for identification. Not to look into the health of these people, connecting things with other prospects. I dont think anyone would say that thats like the would be consistent with the regular purpose or blessed just because theres some notion that once again, always in. So thats me as a big concern. I think theyre sort of two things i can respond. The first is the characterization of the language of the opinions which i think is disaster. This is a highly critical and in some cases quite fairly critical opinion and i think i revealed a rather robust muscular fist to fight for characterizations of the court being rubber stamped. Its very, very serious. Anytime theres failures within the system, thats serious and the executive branch b should be held accountable for that. Whats not allowed in that opinion is that and im not so dimly versed in the underlying circumstances. But the essential concern here was that there was the rules said the database had to be segregated. And those databases were searched under the wrong conditions. There was never an allegation that anyone knowingly searched the database that they knew they werent supposed to be doing. This sort of goes to the bachblg sort of questions of good faith. Its important that we have this sort of searching and critical inquiry to assure that all of the processes are occurring correctly. I have a question. What youre describing is an inadvertent era was discovers were the databases in the systems changed o so that that would not happen again . What is the correction mechl nashville that takes place . Once again, i guess this is getting into sort of particulars of what im just not qualified. The ordinary process is winning compliance is detected, it is investigated, at reported to the compliance mechanisms and then theres an understanding of whether or not technical changes can be made to ensure the compliance doesnt occur again. Or other elements. In this case instead of deciding that the prior protections were insufficient and that new protections should be created with it was decided that whatever the cost of the new protections were going to be, change fg way systems were designed, i dont know, but it was better in this case because of the value of the program to stop that call. So i think thats why i really think its important to focus on the inadvertent nature, not to pretent its not very, very serious but in order to be fair about what were talking about. The other sort of thing is the characterization of incidental collection. We really we talk a lot about incidental collection, 70 second base, because that is where the Constitutional Rights of people are protected but its also important. Talking about a little bits of a presumption but incidental collection is important so that it is inherently bad. Its a part of all forms of surveilling. Even when you go to when the fbi not operating as an intelligence agency, go through a judge and get the warrant and target the people. They collected the other part of that communication as well. Its an inherent feature, and so then in that context, a series of protections are applied and ordered to ensure that thats incidentally stolen part of the record. The same thing is occurring here. This is a different context. There are different constitutional obligations, dirvets operational equities, but what were seeing is this same that same instincts and attempt in order to recognize the rights of people and to protecting the rights of people that are not necessarily an evil but thats partly how surveillance works. I want to go back to the Court Opinion talking about i forget the exact language now but essentially a willing change. How do you respond to that . In general, if theres evidence of Something Like that i wont speak about that particular instance today, but we take appropriate action internally. That can range from a variety of things, if theres some sort of attempt or maldiseasance of that, that could be some kind of training problem, a technical problem, a management problem. We try to figure out what is the problem. Try to address it, fix it so it does not occur again. Theres no way to these are not acceptable. This is a Big Organization with a lot of things going on and we in a highly changing environment, because the technology is changing and how the adversaries use the technology is changing, so were adapting to that. So as the High Court Said in that opinion, its a large and complex operation, the 702 operation, and so there are things that happen and we dont accept them and we try to fix them. Julian, you got us started on this line of debate here. I want to give you a channels to some of the things youve been hearing. A couple of things. At least in domains you do apply a pattern of im going not to that rise to the systemic level, not one or two but a satellite battle. Internet data program they found that the imization procedures, the description on dissemg nation of u. S. Information, so automatically violated the overall regime imposed to gorn that data had it never technically functioned. Theres a sort of appendix of powerlines issue. One niends a particular query tool accessing some of these databases, there would be queries aimed at people targeted 705 and 705 and other sections that pertaining to this tool, 85 of the inquiries were not compliant. Much more noncompliant inquiries were going on. The response is responsive to susans comment which is fwauz of the scale and complexity, errors tend to scale. One of the other things is the issue of not being able to quantify some of these problems or interfacing with the audit system. The audit system, this doesnt actually cover all the tools theyre used to query isnt that useful. Thats the first thing thats going to get used when something untoward is happening. Someone yeah. I dont want to be an argument about what we think is a good faith opinion of the large majority of people. Im willing to accept when were looking at these because there are a function of the size and complexity of the operation, but when the drill was being conducted is so large and complex that you have these repeated systemic fill yours with rules put in to govern them, we ask about are these systems we feel comfortable existing at home. Because its precisely that kind of complexly makes it so much easier to con seem when actually wrongdoing hands. We know that previous abuses were not done without measures taken because it was going on. Viewers of the authority in the past were aware of i was and took steps to evade them. When you have a scenario where either complexity or error, intentional violations are able to hide and unlikely to be detected. Are you done . Excuse me. Universal in when youre physically searching someones house, you might find correspondence with other people. I think the scale of collection here makes things different. Because its in the criminal context when that surveillance happens. Theres an effort up front to filter out what actually cord. You oushlly dont have this massive database where all the fruits of those searches, pertinent or nonpertinent to the subject at hand, are reusable. It makes the issue of material collection more important. In this lengthy analysis, t 99 pages, i think it is, in the fisa court in which they take us to task, in blubt terms, very critical. Nevertheless, in understanding with all that or in recognition of that, we conclude that the program is lawful and constitutional. They see whats happening. They understand whats happening and nevertheless conclude that what were doing is permissible under the constitution and laws of the us. Thats what they conclude. We spent the first part of this discussion looking at the utility of the program, the debates able to, the issue of compliance, whether its robust or not, all of which are important things when people in congress are going to have to grapple with. They now want to talk about the real thing, politics. A lot of the optics that have been surrounding surveillance law that i have to say the journal has been kog this long time, i find it kind of head spinning. The phrase unmask has entered the lexicon before fonfete took over. Cant resist. The issue of u. S. Persons turning up in an Intelligence Report and their named unmasked for whatever reason with has been brought up in the context that obama officials asked people identified as surveil bance reports and have now had their names leaked to people in my profession. I find this head spinning for two reasons. One, it did not involve 702, as far as im aware and lawmakers who are bringing up these concerns are saying were going to have to look at this when we reconsider reauthorizing section 702. You find that many of the people who are skeptical about these authorities now very much are from the camp of people who are rushing to enact section 702. So theres been a bit of a shifting nature in the political alignment here. Let me start with you. What do you make of the fact that now this issue around unmasking which is its own issue is embedded in all these surveillance capabilities that we talk about, has become this political hot button at this point and what does this pour tend for months from now when the debate is up on whether to reauthorize this particular authority . Very surreal to watch a series of legitimate concerns about the authority being raised in the particular instance, sort of preferential listens, so i think were watching kind of on train of that, with respect to unmasking, in particular in terms of the question whether the rules were followed here, circumstances seem like the kind of circumstances in which its pretty easy to understand why unmasking might be appropriate but if youre talking about reviewing transcripts or Intelligence Reports about agents of a foreign power discuss their attempts to subon or influence someone coming into the government of the u. S. , its important to know who theyre targeting. So thats knots particularly surprising and im not the surprised that at least the internal reviews versus found that the masking that occurred was mostly appropriate. In a broader sense i think we ought to even if youre not particularly enamored of the Trump Administration and you think there will be something meriting serious concerns about their relationship with russia, i think it ought to be kerng that were seeing an almost constant drum beat of obviously selective leaks targeting mechanics of the administration and the folks reporting them are usually hard pressed to evaluate the significance of independent whatever context is provided by the people choosing to leak. It may be that that is something people are choosing to do because the process at this point has been so compromised, investigation wont be able to proceed otherwise, but the idea that unelected persons have the power to so effectively derail an administration, even if he thinks maybe in this case its the extraordinary circumstance where its justified. The ideal of that becoming normal ought to really concern people. You know, a lot of politicians out there have something embarrassing to hide, so it should be concerning that there is sort of a subset of the government bureaucracy that has the power to design whose skeletons end up on the 23r07b9 page. Briefly a second. I mean, do you consider that to be just the next iteration of the kinds of abuse that is we saw that led toe these surveillance files in the first place . I mean, government authorities using their extraordinary power to punish people, eventually. Its a punitive kind of action. I mean, theres a range of different things. One thing to worry about, yeah, thats my media about conspiracy against the Trump Administration seems pretty overheated. On the other hand, when you see this on rush of leaks right after the firing of comey you look at that and say how much of this is legitimately people saying the only way to get the data out of the leak is of course illegally. How much of this flood of new leaks about the preemptory firing of a loved fbi director who i think most people saw as insulting. Motives are mixed that way. Mark felts who turned out to be deep throat was obviously risking serious wrongdoing by people with the Nixon Administration but also announce at having been passed over. Its very often difficult to disenstandingle the public spirit to venal motive. You and i have talked a lot about the leaks that have come out, what it shows or may show or suggest about the way that this administration is operating before it came into office and i think inarguably things of public interest, but they seem to be issues that may be imperilling the passage of 702 or something that would make you believe is a bad outcome. So how do you see the political sides taking shape as we go into this sunset period . I think theres a few things. First, theres no indication whatsoever that any of this information is 702 information, not to say its not rel voonlt to sort of the general protections but it biks becomes important. We should be candid. U. S. Persons information, incidentally collected in the course of foreign intelligence, surveillance is collected for a particular purpose. Leaking it to the media is an abuse and leaking it to the media in order to gain a political advantage even if its to harm a president that you really think is a bad person, thats an abuse. Its not wrong in like a information or a technical itself. Its actually wrong. Its violating security protections, but civil liberty protections. People who care about Civil Liberties should be concerned about that. I wouldnt want to imply that those came from the fbi or significant. Theres plenty of parts in the u. S. Government of people that have access to that kind of information. We have to be accountable and clear. That said, related to both the focus on weeks and sorts of the i would say manufacturing unmasking controversy certainly. It appears manufacturing given the information that we have now is that it has actually begun to undermine important elements related to 702 and thats particularly whenever we look at members of congress, including mechanics of the Intelligence Committees asking questions in hearings thats evidence that they dont understand the difference between section 102 and title 5. So dichblt levels of protection. It starts to become more difficult to offer at the expense of these programs, well, theres a robust congressional oversight. The reality is the owners dont always know everything. But whenever we are asking congress to serve as proxies for us in these important areas to be our eyes and ears and they are demonstrating a lock not just of sophistication but of base set reasons. Either theyre doing it for political purposes or even more troubling, they actually dont know the difference. Thats why i think it starts to bear on the 702 debate, because thats such a critical component of the protection thats here. Alex, whether or not these lawmakers are arriving at their conclusions, suspicions about how it operates because of ignorance of the way the law operates or opportunistic moment here, this is raising the heads spinning possibility of the spectacle of trey gowdy and nunez joining arm in arm with the aclu. How do you feel about that . Il say that im not seasoned in the politics of this, but i will say that one benefit of the kind of rapid change over the last couple of months is to very vividly instill in people over a quickly instill in people a measure of a distrust of government that i think is essential to democracy. I think it is important for citizens to have the distrust sufficient to want to hold their leaders to account, to want to hold their elected officials to account. I think too much stress can be corrosive. I think that is thats not something that i find beneficial to anyone. But a suv measure of distrust i think is important. The truth of the matter is that the surveillance authorities have been extraordinary surveillance power. Its an extreme amount of power weve given to the executive to spy on people including americans, and the people who exercise those authorities are not just elected officials that you will always trust and its important to build those tools that are rebust enough to stands the possibility of political abuse. While i agree with jewel yn that, you know, its seems that the vast majority of the problems as identified with the implementation of 7802, other programs are likely the result of complexity and not the result of bad faith. The question isnt what any particular administration is going to do with the authority. Its what the next one will do. The one you dont know. Now we have that one that nobody knows. I think thats why people are so concerned. You say you dont do the politics. If were just breaking this down to brass tax, is the Civil Liberties union going to be ok with finding allies not normally where they would see them. I think all the communities at this area have been kpunistic in their alliances. When i was at the aclu, the nra supporting one of our lawsuits. We welcomed their support. They shared the fundamental principles on this issue so it made the difference having that alliance. So i happened to see this other one. To the extent that there might be broader sequence consequences for our soetd because of the spread of misinformation, i think that can be a real cost and thats not what im blessing. Ok. I want to give the last question to jim before we move to q a. Youre not a politician either, right . And eventually the new director and the director of the nsa and other officials will have to go to the hit and make these arguments about why he feel reauthorization is important. We assume they will. What is your job in that whole process . Make sure that the fbi receives excellent legal advice. Thats the main thing. I mean, i think i guess i would say a couple of different things. Obviously, 702 is a law so theres a heavy legal element to this, so i will be involved in that process. Both within the fbi and within the interring agency. At the end of the day, wrap up some of these things. Look, ive said this before. Director comey has said this many times. You should not trust the government. The American People should not trust the government. You should not trust the fbi. We have a lot of power and authority that youve given us. Keep that straight. Youve ginn that to us. But you need hold us accountable for what it is that we do and i would say to you on this program, there are a lot of mechanisms that exist to do exactly that. Our earth, i think, at the fbi is to try to explain to folks what this Program Means for us, how we use it, and to inform the American People and congress that if you make certain changes what will happen, and so you know, just not to go into too long, if the coverage the 702 were to be completely repealed, for example, or there was this war requirement thats been talked about imposed completely on the fbi in addition to the daytoday checks we do, that would have significant occupational impact on us. That would mablgt much more difficult for us to connect the dot, that would increase the risk of something bad happening to the people of the United States. And so i think what congress and the American People have to decide is, ok, given that, is the benefit that we would obtain from the Civil Liberties perspective, does that potential outway the potential costs . Costs are difficult to quantify. We can tell you in our judgment as professionals, thelds be there. The costs would be there. It would be harder to do our jobs. Its up to congress and the American People to decide whether they want that or not. And our job, my job is to try to explain that so the American People can make an informed decision going through for the rest of the year. We have about 20 minutes for q and a. When you do we have mikes . No. Ok. Well speak loudly. Let us know who you are when you ask a question. Thanks. We have a mike for you right here. Is there a question discussion from both civil libertarians and the fbi about the spill over into domestic issues, that is you collect intelligence and the fbi uses it, something thats purely a domestic potential domestic crime. Thats part of the part to the civil libertarian side. Assuming that the 702s going to pass, what are your major priorities for changes . Could you repeat the first part of that, maybe on the domestic use of this information, if i dmoods your question correctly . Yeah. Sure, ok. [ inaudible ] what . [inaudible]. Could we live with it or not . I dont i would tell you it would have a negative impact on our ability to protect the American People. I can tell you that flat out. Let me back up and try to explain this concisely. So post 9 11 the edict to the fbi is connect the dots. Ok. One of the things we needed to do was try figure out at a sort of fundamental level how to enable youre analysts in asia with one database check to check all our database. So over the course of time and with a lot of money and efforts, we have done that. So we have figured out a way to make our various and sundry databases, more than 120 of them, accessible to an analyst or a database check. That gets you into the material. We have put into that fyfa information including 702 information. If were worried about something and with we encounter that something, we dont miss that that might have been there. Thats what we do. Thats how we operate. You have to remember that the fbi operates mainly inside the United States and we mainly encounter u. S. Persons all the time. We encounter u. S. Persons, people constantly. Thats difference from the other intelligence agencies. So when we do a database check were probably doing a database check on a u. S. Person. We often cant dell who that is. We dont know the identity. Were checking an email address or some other type of identifier but we check it. Its probably having to do where a u. S. Person. If there were to be this warrant requirement, it is unlikely that one, containing plobl cause before we can even do the check, rights . Thats what that means, the High Standard of proof. We would not be able to function in our National Security cases or in our criminal database. That would mean that the 702 material, we couldnt access it in the same way. We would have to figure out some way to wall it off. It would be less Information Available to us. It would increase the risk that something bad could happen. You want to take the second parltd of the question. On the first part, too. Sure. I was hoping it would be easy but that you would have a separate box, if you have a warrant on the 7802 side of the database. I would hope thats the technical solution. But more broadly, what youve described, the coalition of multiple sources of information, coming from different programs and different purposes. Thats the sorts of Mission Creep i fear most is that this was a program being sold to americans. Based on a technical change in the Way Communications were being routed. That then shifted into being a program in large part about getting one person with u. S. Communications but dont worry and that was part of a database used routinely by the fbi to check for evidence of any crime in the United States, whether its significant or not, whether it relates to foreign zbejs or not. Thats the world that i fear. To answer the seconds part of the question quickly, i think probably the top two items for most Civil Liberties organizations would be one to codify the end of ballot election. If the nsa thats collection is knots worth the effort, it should be relatively uncontroversial to put an end to it and not rely on the willing change or the voluntary change. Second, we would close the back hole difficulty, closed unwarranted access to u. S. Communications. Do you want to counter . I largely endorse alans comments. Intelligenting agencies provide a count of how many times theyve queries their 702 tape for a u. S. Person identifier. It seems and the one thing the the firk has been sort of exempt from that but they should be up by at least an orders of mag feud did frequent accuusers such queries. The best would be to get the buysline the frequency with which they were used to query by the fbi and if you dont want to come up with nothing, im happy to actually say what i care about is how often are they pulling up something in response and what information has that information been used. Thats i think base level data or lingo to be able to discuss this in any significant way. I suspect [ inaudible ] large. What i was thinking in general determines is hard core 702 that nobody really has a problem with is the idea that you have this problem that was solved by 702 of transiting communications, foreigntoforeign communications passed to the u. S. Because of the way the internet works look like essentially one ended communications. They are ultimately foreigntoforeign but they dont look foreigntoforeign. Naeb thinks you should have to use that. The solution and the tell us to solve that problem. What ides like to see is whether through front ends restrictions on collection or more back end restrictions, getting closer to a solution to that problem without providing broader access to just have sort of a quick followup on the idea of k09d 2350iing. I think a little bit of misunderstanding what the nah said. They diabetes say they werent costs. They said given the circumstances, in the cost benefit analysis, this was the right decision. It i entirely possible if there had been increases in technology. There might be changes in legal authorities or there might be changes in operational circumstances such that that information suddenly becomes more important for the United States to see. We think we shouldnt view this as sort of one directional where a decision is reached and its codified in law. Thats an acknowledgement that a thing isnt important. It should be this ongoing reassessment. So i worry about overinterpreting the decision to voluntarily stop particular forms of collection, because the world changes and technology changes. So you have the last question right here. Well wait for the mike. The folks watching at home can hear you better. Im mike from the l. A. Times. If the dprvegs isc is going to be protecting Civil Liberties in this context, is it constructed and deviesed the right way . Should it be a specialized permanent quart, not a collection of rotating federal judges plucked from different parts of the country and should the judges be appointed specifically by the president and confirmed by the senate for that court so you fill expertise around these issues . Jim, i feel like you should get the first crack at that. Im not going to comment on any particular legislation. To me, i believe thats so that would be a negative outcome. I think one of the positive features is that you have regular article 3 judges making these decisions, right. These are people who are deciding reasonable a tick labl suspicion in an open context that we understand and theyre doing that in a secret context, also, so im feeling that connection and that rotation is a positive way. What makes it more likely is that the standards and announcements that were seeing in a classified context over more what wed see in a closed context. This isnt far off what susan said. I dont think fisk is a rubber stamp. I think its largely onesided adjudication. Our adversarial system is built like that for a reason. Its difficult to meaningfully test this in a onesided way. I think thats why compliance incidents dont come up earlier and why weve ended up with the rule that we want. A broader point, too. If you look at some of the these opinions, especially the one from november of 2011, these dont read like article 3 decisions. They read more Like Committee report. They meet as though court is being asked to fashion rules of the road. Theres this change between government and court. Its documented the way it is with federal courts. Theres either informal a and woontsd be a bad thing in the first instance to have most of the ground rules sets at a different level in a more open forum with input from a broader group. Part of the problem here is the fisk was initially designed to do something it still does which is evaluate the accuracy of it. Taking on a second and more systemic policy evaluation attached when its probably not well equipped for. I dont know. It is worth knowing, right, that when you bear in minds that second function, yet these are all people who are unilaterally selected by the Supreme Court head justice. We have a mix of republican appointees and democrat appointees whoorm concessions in a horsetrade is not its not the setup you would have if from the outset this was supposed on the a policy making body with a kind of weird and paradox cal philosophy over time. Can we come to this side . No . No . Straight in the back. Hi. So we talked a little bit about the back door search loophole. I wanted to get you guyss thoughts on a specific forum. That is the metadata thin warrant reforms the loophole so you would have the fbi searching the databases using u. S. Queries but it will only return data until they get a warrant. Do you think thats a good compromise between Civil Liberties and are there pitfalls to that approach. Can i ask who you are . Oh. Officer mooney. Ok. Who would like to take that. If jim is able to i just commented its the same answer i gave before which is that would have a significant negative Operational Impact on our ability to respond quickly to the threats to the threats that we have to face today. Means youre adding on just to talk about the terrorism reality for a moment. The terrorism, the Way International terrorist groups operate has changed significantly over time, especially with isis and especially their methodology of just doing lowtech types of very dangerous and harl harmful attacks around the world. So what we call the flash to bang nks from the time they start doing something to the time they do it. The time we have is much more kbresed than its used to be. And so layers upon layers of reviews and sort of break points and things like that, you just have to consider the impact of that. Its not up to me to tell you what the law should be. Im just telling you that the more layers you have, the more requirements you have, the more it slows us down. You might say thats a good thing. I dont know. Its going to slow us down. So its going to make it harder for us to do our job to protect the American People. Im just im saying that. One thing that jims comment reflects and is a il will bit of a misperception is that kwarnt requirements are easy. You just put it in and it 150e78s like a simple fix. In the executive branch, a very wide sort of body of Legal Compliance grows out of all of those policies and procedures, and so what in pure legislation can look like not that onerous of a standard, when you talk about implementing it in practice, youre talking about lots of lawyers and multiple offices, meetings, having lots of communications, so what seems like you should be able to resolve it in 45 minutes, were talking about days or weeks or sort of beyond, so thats i think thats some of where the anxiety comes in placing what seems like to be reasonable compromises on sort of the actual functioning of the system. I would say a step in the right direction, but the scheme that i would favor would be one where at the outsaid, the government is obligated to avoid and if that system isnt perfect, which it inevitably will be, it should be allowed. That seems fairly similar to e one. When it was first being r considered. I think thats closer to the theme i would find acceptable. But i think thats a step in the right direction . Any response . I think, you know, i dont want to waste time crafting applications and going through a warrant for them to find out the answer is theres nothing there. Im ok with them at minimum knowing whether there is something responsive so they have some sense of whether it is worth their while to craft an application, so i think i can live with that. I know much more down on proposals going to have facilities but lies in that idea. Time for about one more question. Yes. Right there, sir, in the back. I have a question for mr. Baker. What are the subplots surrounding the 702 debate is whether or not the Intelligence Community will disclose a number of estimate of u. S. Persons are implicated in 702 intelligence program. It does ensnare in u. S. Persons. The former number two of budget came out and said he thinks a budget will be provided. The Committee Said they would get enough. Continues to be something that guys have pushed for. I just wanted to put it to you. Does the fbi support disclosure of an estimated amount of u. S. Persons implicated by the 702 or has the agency in any way tried to push back on that effort or resist . Thank you. Well, first of all, its not our job to go counting what it is that nsa collected. They have to figure that out. It is a significant challenge in part and this has been said publicly before. We often dont know who these people are who were intercepting the communications of. So just from looking from the outside of the communication, and even if you look inside of it in terms of what people are talking about, how do you know theyre a u. S. Person or not . Just because theyre using a particular account or email account or Something Like that. Even ip addresses are not always a Perfect Technology in figuring out whos a person and whos not. One of the things we have to grapple with is first of all, how much time do you want us to devote to this and how intrusive do you want us im talking about the Intelligence Committee how intrusive do you want us to be . You have to sort of do, sometimes, many investigations to just identifies who the ie dentedity of the commune cant. It actually as you deal with these things it becomes very difficult to provide an estimate that you would have confidence in where the margin of error, for example, would be sufficiently low or small, i guess you would say, that you would be confident that the 12i789 means anything in terms of this debate. So its a challenging problem that we have not figured out how to deal with right now. [ inaudible question ] im saying theres significant challenges to trying to do that efforts that we understand. Yeah. This is i think theres so theres the question of what presumption you afford to people you dont know, so that theres a risk of producing numbers that end up being misleading in some way, so if we have transparency efforts, they should inform the public. What is the number metric that is the thing that most or best informs the American People. Is knowing that number in an imperfect estimate sort of under the best circumstances of that number, does that really help the American People make a decision, a better judgment about how the program should be constructed . I think there are other forms of transparency related to process that go to you as an american, how is your information collected, how is it used, what are your how are your rights protected. Getting additional transparency into those types of processes, to me strieksz me as a more meaningful transparency. So if were going to be pushing on those efforts, which i think are laudable, i think there are just other places to put our energy and that these numbers have really become symbolic in ways that are not constructive to the debates. Do you want to respond . I think those numbers are enormously important. I guess thats why private firms have been pushing for them for a while. It actually is now consistent with the procedures that the nsa has to come up with an estimate permission to do this. You know, the most controversial aspect since inception. And you know, in the war of terminology, i think the nss aone which kind of, in some contention, minimizes the problem and makes it seem as though, you know, incidental, it is at the fringe. When in fact it may be a large number of communications that are swept in. I think we should care about failsafes. I care about the procedures that are in place to protect u. S. Information. But i also want to know what is the scale of the damage, or potential damage if there is a failure in those layers of security. So, i am interested in the number. If the number were 150, i dont know if we would be hearing the same level of sort of suggestion. It is irrelevant. I want to thank the audience and the panel. Hopefully as the debate unfolds it can be thoughtful. Thank you to the four of you. It has been a great discussion. And thank you to the audience. [ applause ] section 702 of the Foreign Surveillance act expires. To gather foreign intelligence. Here nows from the national programco director. She spoke for