Julian welcome back to the Cato Institute for the 2019 cato surveillance conference. I remain senior fellow julian sanchez. Thank you to those present and those watching at home for joining us. As i mentioned at the start of the conference, we focused on issues of surveillance oversight at this years conference. This morning, you heard about an array of institutions that work to oversee the secret you seven the secret use of intelligence collection ranging from the fisa court to the inspectors general to the Government Accountability office to the Intelligence Committee of congress and one of the newer and in many ways most publicly useful entities overseeing the Intelligence Community is the privacy and Civil Liberties oversight, which has produced a number of valuable reports that have given us unique insight into some of the programs that were discussed earlier, like section 215, the authority used for the phone records collection. What im sure will be a fascinating discussion, i will pass off to our accomplished moderator. Jennifer thank you, julian, and thank you all for being here and to those watching online. It is an honor and a pleasure to be a part of the conversation with the members. We have three of the five members with us today. Two had conflicts and were not able to attend. I am going to basically do something nontraditional and allow them to introduce themselves. Ive seen this done a few times and have found it more interesting than hearing me speak. I will start with adam. Thank you. Adam we are a nontraditional agency so it is good we are taking a nontraditional approach. I am adam klein, the chairman of the board and only fulltime member. We have four parttime members, which is a unique feature. Before taking this, i was at a think tank where i worked on issues comparable to the boards mandate, the intersection of National Security, law, and emerging technologies. We should all throw out an interesting fact of why we got into this work. Before becoming a lawyer, i worked for the members of the 9 11 commission on their post governmental efforts to enact a 41 9 11 Commission Recommendations and one of those recommendations was this board. This is an issue i have been tracking going back to 2004 when i started doing that work and advocating over the years for the creation of the board and for the stocking of the board with members, and to make sure to have Adequate Research and authorities, so it is nice to finally be there to see the board come to fruition with the Previous Group of ward members who did good work. We have the former executive director here and that is nice for us to see and to continue to push the work forward now. Thank you so much for having yesterday. As one of the parttime members of the board, we are very lucky to have a technologist this time around, a fellow who cannot be with us today but he has been inordinately helpful as we dive into the more technical aspects of the program to conduct effective oversight. Prior to joining the board, i was working on a book on the rule of law but spent a decade in government, about half in the executive and half in the judicial branch. In the executive branch, i worked at the office of legal counsel. In terms of my interest in these issues, it is longstanding. My parents fled from behind the iron curtain so i grew up with a t happens when the breakdown between bounds of National Security and privacy falls away. Im really thrilled to be here, thank you. Thanks, jan and thanks for hosting us. In my other life, im a professor at the university of Virginia School of law where i teach, among other things, computer crime. A course that addresses some of the issues we deal with in the surveillance area on the board and my path to the board and this set of issues is immediately before i was in academia at the university of virginia, i worked at the department of justice in the same part of it that jane also worked at before i was there and i was not appellate attorney at n appellates a attorney at the National Security division and joined the National Security division in march of 2013, which was moments before a set of disclosures occurred that prompted a lot of the work the board did in its previous iteration with 215, so that was my entree into this area and i was able to work on sub cases working on surveillance, and that spurred an interest in this whole area. Before that, i was in the office of legal counsel, as well, and had some interaction with National Security issues. Really happy to be here. You obviously mentioned already that you worked on the 9 11 Commission Report where the intellectual origins of the board started, but can you tell us about the purpose and mission of the board and how it is structured and how it relates to the many other oversight agencies entities within the executive branch . Adam as a good lawyer, i want to offer technical clarification. I did not work immediately on the 9 11 staff. I joined an ngo created called the 9 11 discourse project that no longer exists. It educated congress had the executive branch under the public about the recommendations. Segueing into your question, commission had 41 recommendations pursuant to its mandate to investigate the cause of the attacks and make resin recommendations to ensure things like that wouldnt occur again. Many of those recommendations are generalizing, have the tendency of centralizing power within the Intelligence Community, the Homeland Security apparatus, so some of those are creating a director of national intelligence, a National Counterterrorism center, improving information center. Among the intelligence agencies, using biometrics to track travel in and out of the United States. The tendency of all these things is more information, more centralization, more information sharing. On the other side of the balance, the commissioner recognized if you are going to create this new centralized power, you need an increase in oversight powers. Many of those oversight recommendations focused on congress, but they also looked at oversight within the executive branch and proposed there be a board within the executive branch to conduct that type of oversight of efforts to protect the nation against terrorism. That is the genesis of our board. It was initially constituted within the white house and in 2007, congress established the board as an independent executive Branch Agency with a confirmed set of numbers. Jennifer how does your work ordinate with the work of the inspectors general and the other entities . Within the executive branch that are doing some of the related work on a daytoday basis . Adam inspectors general, to paint with a broad brush, tends to focus on individualized reports of waste, fraud, or abuse. That is not our mandate. Ours is more programmatic. If there are individualized abuses we learn about, we would take action and inform the officials. This could be informative for our programmatic oversight because if something goes wrong on a case, that might suggest programmatic improvements are needed, but our focus is at a higher level of generality. Is this wise, necessary, are there safeguards built in . Are the right people making the decisions given the stakes at play . What are the future implications, and so forth . Jennifer how do you decide what programs to work on, where to focus your efforts . Obviously, there are a ton out there so how do you make the choices that need to be made about where to focus . Jane we are a bipartisan board, in terms of what types of projects we want to take on, i think we will look to for instance, if there if something is being reauthorized, we will be issuing a report on new products in the next month or two and we think will be a benefit to congress and the public of having Greater Transparency into how programs are operating. You can add value of looking at implications of the program, some thoughts on whether or not the program should be modified, if it is reauthorized, things of that sort. We will look to emerging technology, one of the things we talked about in our Strategic Plan to see if there are programs in that space which would be useful for the board to offer their insight on. There is a broad array of factors we look to when deciding what projects to take on. Aditya i was the last one to join, at which point the report jane just mentioned, it was already in progress. I can step back to think about how we would select projects. It just so happens that before a joint, the board had put out a it just so happens that i joined, the board had put out a list of projects we intend to work on and those all made sense to me, and i think it is one of those situations where we should just think what does the value add to the congress, the american public, the executive branch . We all bring different skill sets. As jane mentioned, one of our colleagues is a computer scientist, not a lawyer. We are all lawyers. On a personal level, what you are doing is an enormous amount of work. How do you balance this with your regular jobs . It has been a good amount of work, absolutely, and just do the best i can. We have great staff and they put together great drafts, but i make every effort to read every line we put out, and so i think we just have to strike that balance. This is a thought people might have about what is the benefit of having a board structured as it is right now with one fulltime member and four parttime members . I actually think that is a benefit in the sense that the independence of the board is enhanced by having people i have other things to do, and really, i am at liberty to say what i feel is best in the boards reports, and so i think that is kind of the Balance Congress struck and it is incumbent on us to make it work. Jane part of the idea is the parttime Board Members is to have geographic diversity on the board because it is helpful not only to have people working at other jobs and bring other conversations to bear on our work, but have people surrounded by different geographic conversations that take place. Jennifer lets talk a little about some of the work that is done. As you have mentioned, there is a 215 report that the rest of us are eagerly awaiting. I understand issue is a classification issue that remains an ongoing challenge. A couple of questions about one, whether you can provide any information about whether or not you expect the report to be made public before the extension in the 215 program expires. Secondly, at what high a level can you talk about with respect to the report . Adam im happy to go ahead on this one. To fill in the background, so everyone is as deep in the wii does we are, one of the things revealed by the leaks in 2013 was the large scale or bulk collection of telephone call metadata. What number called what number, for how long, and so forth, but not what was said on the calls. Our board with the previous membership did a significant landmark report on this program, and after that report, recommendations from other governmental bodies, congress decided to trim back the reports of the government can collect the records in fairly large numbers as is disclosed in public transparency reports, but not to the extent it did before this law passed in 2015, so the government has had for years implemented years implement in that law, it is coming up for sunset, so we have undertaken a deep dive into how the government implemented that new authority to collect telephone call records since it was enacted in 2015. That has been a lot of work for our staff and gave cover the confident that they have mastered the details to a granular extent of how this worked. We cant get into the details at this point because there is a classification review process where we have to put that work product through and that is where we are now. I dont want to imply there is a problem with that process. The Intelligence Community is working hard to work with us to move that forward expeditiously. It is a big task, complex material. There is a lot of it and a lot of people everyone has a lot on their plate but we believe we are receiving cooperation in good faith and are quite hopeful there will be something the public can look at relatively soon in the new year. Jennifer i know you have testified about this to some extent. I dont know that everyone here has had the benefit of your testimony on this issue adam it was pretty short, if anyone is concerned about that. Jennifer it would be great to hear your perspective about if in you are a lot of this remains under classification review, provide some thoughts about the program and its implementation. Adam at a very high level, there were public transparency reports that put hard numbers out there that was a great thing that we as americans have access to. Citizens of other countries do not have access to from their intelligence agencies and those reports show the number of records, while not perhaps bulk collection in the way the Previous Program was, are still quite large. Hundreds of millions of records over a relatively small number of years, and that was predicated on a very low number of orders. I think it was 14 orders related to 11 targets last year. This is all in the Public Disclosures and i see some of those people involved in the audience have done a good job of putting out. Then there are questions about how the authority was then there are questions about how the authority was implemented. We look at the challenges that nsa publicly disclosed in the experience of implementing the authority, we found the challenges were inadvertent and not the result of abuse or malfeasance. At the same time, this is my individual judgment as a member of the board. Ill have more information about our collective views when the report is released, but my judgment is the agency made the right decision choosing to suspend the program. That is the level of depth we can safely go to until the report is out and we are confident there will be some more declassified information that will inform the basis for these judgments. Jennifer there was a period at which the program was suspended because of these questions about how the information was being handled and as we move forward and talk about reauthorization, are you able to talk about the intelligence . Is there an ongoing intelligence need to continue this program or would we be ok if it were suspended indefinitely . The counterterrorism aid from the metadata generally . Jane at a high level, one of the benefits this program allow for was allowing the Intelligence Community to not reach only one telephone number away from who you are calling, but another house away from that. This is a change from back in the day, disclosures where the programs back then allowed for three. General Intelligence Community to from a National Security perspective, we think the question we confronted in this program was, given the limitation of this particular program was the intelligence value that was being obtained, Cost Effective in this case . Was it balance with private issues at stakes . The compliance issues being confronted . In general, if you step back and look at too hot metadata programs, again, there are limitations to this program of what type of metadata could be collected. An expert talked about the ways in which terrorists are shifting their modes of communication so questions of whether or not this program was reaching the ways it communicates, questions of whether new authorities may need to be brought to bear to reach these new modalities in how terrorists communicate. These are questions that were confronted in looking at the value of those programs. Aditya until the report is out, ill just say i agree with adam and his testimony that the concerns that the nsa had that prompted it to shut down the program were inadvertent. They werent the result of abuse of authority and at the same time, the decision to shut down the program, suspend the program, was justified and made sense, so i think hopefully that is helpful for present purposes, and stepping back, if you can understand difficulties with technical issues, it just goes to show how we as a society, government need to bring all of our resources to bear to ensure that we are getting these programs technically right and we are hitting the right balance between obtaining the type of information that the government should get in order to secure the country while at the same time not intruding too much on peoples privacy. It is an extremely hard balance to hit both from the conceptual level, legal standpoint, and from the technical standpoint. That is something ive learned a lot about through working on this report. Jennifer staying on the topic of prior work youve done before we move into what is next, one of the things i think has been remarkable about the pclob is this comprehensive prior 215 report and the 702 report, which sharon gets credit for, one of the questions is a member of the public very interested in these issues is the question about the triple three program, about which there is less public information. Curious as to what extent the internal work you have done on the 12 333 program could be available. Adam a pedantic micro correction, 12333 is an executive order. That structures into the exercise of authorities by the Intelligence Community, so it assigns responsibility and has Different Community elements, and so with the board undertook and sharon is free to jump out of the audience and slap me if i am wrong, because she took it, was counterterrorism activities conducted pursuant to executive order 12333. One of those deep dive examinations was completed before the three of us showed up and we inherited the rest is open projects. What we said when we came on board was we were going to look at the work that had been done and continue the work and bring each project to an appropriate conclusion.