American data is not discriminate searched by intelligence authorities. Ok. I was up here doing my tap dance. Theres a pleasure to introduce stuart baker. The former general counsel for the National Security agency. He is going to be our first speaker. Lets do it. Stuart i am really delighted to be able to introduce matt olson. He advertised that. We did until the events over last weekend. We ask who can talk about this topic, which is 702. The suggestion of the white house was that we ask matt olson to do this. We are really grateful for you to doing this on short notice. Matt is perfect for this topic. He has a deep experience in the Intelligence Community. He was counsel at the National Security agency. In between there before he came back to the Justice Department where he now runs the security division. He has a long and deep experience. That has that she has been one of the principal advocates are for renewing section 702. Why dont i just start asking you matt, what is the 702 program for this audience . They may not know as much as you or i know. I think they would really like to hear, what is the 702 program, what does it come from and what is its value . Matt i am really pleased to be here. It committed group of folks to talk about this. A committed group of folks to talk about this weird i was. I was shocked to see a full crowd. Im kind of shocked that you all all showed up. Maybe did not realize until you were stuck here. Exactly. Exactly. We do obviously totally occupy with the events of our time. I will say, a great friend and a brilliant leader. We are lucky to have her in that role. I am happy to fill in for her as best as i possibly can. Yeah. Section 702 is a part of the surveillance act. It was added in 2008. Most importantly, it expires in two and a half months. At the in the year coming december 31 at midnight it will cease to exist. It has a sunset built into it. It is without question the single most important Legal Authority that we have from the intelligence collection at this point. It has proven since is a passage to be indispensable and irreplaceable for collecting foreign intelligence. Some of the people who are here may remember coming in days or weeks after 9 11 as a president ial program. Can you give us a feel for ultimate origins. Matt it really did grow out of the program and some ways that followed 9 11. It was a recognition that what we had was by the which was passed in 1978, and its initial form was not up to the task of collecting foreign intelligence at the time focusing on al qaeda. You have a law passed in 1970 passed before the internet, past before the advent of fiberoptic cable and the way to medications are carried and that was technology dependent. We were using the traditional target designed for people in the United States who were using the exact same tool to target people outside the United States. That was necessary because the way it was written, it was designed to keep up with the times. 2005 there was recognition that it was not up to the task. It was not necessary because we were given targets in pakistan in terms of how it was being applied. I know some of you are tracking it. It would convinced congress to amend it with section 702 to allow us to have a mechanism to target overseas it. People who are using u. S. Service providers appeared we have a lot of targets who were using u. S. Infrastructure because our infrastructure is second to none in the world. We do not have a way to legally compel them to produce assist the government. We changed the law to have a programmatic approach, where we go to the corp. Once a year with the procedure that we are using to disarming if someone is a appropriate target. The court looks at the procedures and determines whether or not they are consistent with the amendment. If they are, the Court Authorizes the director the attorney general together to go to the providers in the United States with the director to do United States. At that is 2008 focused on counterterrorism. In the last 15 years, this law has proven to be indispensable across a range of foreign intel. 60 or so of the pdb article has some collection in them. Because youre talking about u. S. Service providers, we are talking about if you want access to gmail for quantum intelligence purposes, this is what the government is likely to use. Everybody is providing electronic services. Every Committee Case and that goes through a u. S. Switch to a u. S. Foreign target is object subject to surveillance under this program. Theres a lot of stuff that is there. Why is a controversial . Matt i think the way to think about section 702 and why it is controversial. We are always trying to balance National Security with the protection of privacy. That was true in 1978. It was certainly true in 2008 when we passed section 702. It is controversial because it is because of what is at stake. It is controversial right now because of the way that section 702 works, which is why we are targeting somebody overseas not a u. S. Person, not infrequently is that person is in can medication with the person in the United States. Their communications would be collective because we are talking about communications with two people at least. We need to have rules in place that protect privacy for the people in the United States. What we are seeing in terms of controversy, particularly how the fbi, one agency who operates within the United States has access to to some of this data how they are able to use it. Much of the concern has been on as a foreign intelligence tool but the fbi. The fbi only actually gets access to about 3 of the take. The 3 that is tied to a predicated fbi investigation. They say, we are investigating this target. Please put him on 702 coverage. That collection goes into a data place. Database that is assessable. Exactly. Im glad you made that point. Its a critical one. It often gets lost in the debate. Nsa is a primary organization responsible for implementing section 702. They do all the targeting decisions. I dont have to go back and explain what i mean by targeting decisions. We are an informed group. As you said, the fbi gets a small subset about that. About 3 of the overall collection. They are focused on that 3 . They are focused on targets that relate to their investigations. Those investigations can be counterterrorism, counterintelligence investigations. Increasingly cyber investigations. They get that subset and they are able to work with that, but only that part they are getting out about 3 . Stewart if i can channel my cyber libertarian guy, the government, without getting a warrant to carry out wiretaps has collected all of these conversations of americans. They want the target but they are in there. And now the fbi says, we are actually interested in the americans. I want to see what he is saying. Its those queries that have particularly been of concern. I will say, the fbi has screwed up. Pretty badly in administering the limits the law imposes on those searches. That has produced the biggest lapse of this renewal cycle. Talk about what happened there. Matt i will talk about the screw ups. I think it is the right word. Take a step back. The way it has worked since the beginning, still works, imagine its a collection against somebody in syria. An isis member in syria. That person is on coverage under section 702, that nonus person that has foreign intelligence outside of the United States in syria. They may be talking to a lot of different people. People in syria, iraq. Then they may also be talking to somebody in the United States. In viewing the collection nsa , may see that that person is now talking, for example, with email with somebody in the United States. You can see that one end of the communication. In order to focus on the person in the United States, that could be a real concern if theres actual planning or recruiting of somebody in the United States. Then the fbi would have to get a traditional fisa. In other words, they cannot continue to focus on the person in the United States without getting traditional fisa, getting to the courts and getting probable cause. That happens all the time. Stewart i would say, we should talk about focusing on the u. S. Persons, but a big chunk of what got the fbi in trouble is doing what i would call low probability, high risk searches. Im going to treat this person as a confidential source, i will bring this person in for a meeting with the top official. I better check to make sure they are not in communication with the foreign person. I will run their name through the system. Thats not consistent with the rules that have been set up for the database. Matt exactly. Here it is important to get in the weeds. Who is the targeting government going after. What we are talking about with the fbi, what you are mentioning is a query. The fbi has that collection based on the targeting position. What can they do without the with that 3 . There are too many cases where the fbi queries the already lawfully collected data that the government got through their targeting, where they queried it without meeting the standard. The standard is, is searching the data with the search term not targeting . Is it reasonably likely to return foreign intelligence . This is going back a few years. The fbi didnt fully appreciate the need to demonstrate that standard. They might have a meeting where theres a u. S. Government official who was going to attend a meeting. We will just check to make sure that everyone attending the meeting is not a risk. Theres no reason to believe in that scenario that there will be for intelligence in the 702 database. That would be a compliance incident. My team at the National Security division, the lawyers at the Justice Department who work in this area, we do compliance checks all year long. Making sure this is being done right. We found a number of compliance problems along those lines. The last couple of years, we have taken remedial steps to address that. Stewart youve gone through at least three stages to bring these procedures in line. I have to to you i think the law , is wrong and the fbi is right. There are a lot of times, people coming into meet the president , i want to know if they are talking to terrorists or not. Even if i have no reason to believe, i would like to check. I would like the fbi to check. But thats not what the law is. Frankly, we ought to be revising that. Matt i think that is what is motivating the fbi. The thing to think about they , have a lot of databases they can check. They can check open cases, public source information. Theres a lot that they can do. But we are very careful about raw, unmitigated fisa. The contents of communication. We cordon that off. That requires special position to check in those circumstances. Stewart that makes sense. 98 of these searches produce no tips. We are checking to see if something terrible is going to happen. 99 of the time theres nothing to worry about. But almost all of those searches turned out to be violations. When you hear about surveillance of americans by the fbi, shocking numbers of searches that are done. Its those kinds of searches , almost all of them. Matt i agree. To reflect back, i testified in the Senate Judiciary committee this past summer on section 702 and the reauthorization. I was there with the Deputy Director of the cia and nsa along with the Deputy Director of the fbi. Open hearings. I was sitting next to the Deputy Director of the nsa. Where i was previously general counsel, as you had been. A threehour hearing where the number of questions to the nsa Deputy Director was zero. Zero questions for the nsa. Nothing sweeter, except if you are the fbi. Absolutely the target of very strong questioning and distrust. The fbi has work to do. I will be the first to say, these are screw ups. This is a real problem. We cant have the fbi in a position where theres a lack of trust of the fbi. That is why, when we found these problems two years ago, attorney general, fbi director, with our lawyers, worked to implement changes in the way the fbi does these searches of the data. A very simple one. This meeting huge difference, and when i say this, this will sound obvious to this group. The way the fbi was doing it two years ago and previously was that they would do the query of all their databases automatically by default, including raw section 702. If they wanted to check their open cases, it would automatically run that query against raw fisa. A simple flip of the switch to change that default setting from you have to opt in instead of , automatically being searched, that has reduced the number of u. S. Person queries by 93 . It is really a matter of, ill go to search the data, usual checks. I will run the names. That name will check all the databases, and they didnt meet the standard for searching the raw fisa. Just checking and changing the standards, recording your reasons for searching it. Weve seen a dramatic reduction in the number of u. S. Person queries. Now the compliance rate is in excess of 98 . Stewart there are a lot of people on the hill and Civil Society who would like to help you with solving this problem. There are solutions that are a good deal more aggressive. Why dont we just take the fbi out of this . Let the cia, others do the check, not have the bureau accessing this data. Weve also had recommendations from the privacy and Civil Liberties oversight board, three of the five said, the fbi ought to go to the fisa court before they search for an american with information in that database. One of them said there would be probable cause. Two others said, you should take the existing standard, it is likely to produce intelligence , and have the judge secondguess that determination. Your thoughts on these other recommendations . Matt on the first one, i will talk about that first. The idea that you should just section 702 should be available to the cia and nsa and not the fbi i think is deeply flawed. Actually really dangerous. Stewart probably dangerous for everybody in this room. Nobody wants to be looking at u. S. Person data from the cia or nsa if they can avoid it. Matt those of us who work in those agencies, the concerns about u. S. Data, anything that touches u. S. Person data. When you are in a foreign Intelligence Data like nsa, cia. Beyond that, to me its basically forgetting one of the fundamental lessons of 9 11. You cannot have a wall between a Foreign Intelligence Agency and the one agency, the fbi, that has authority to act inside the United States. Really, one of the critical things weve learned and spent 20 years addressing after 9 11 is the need for the fbi and cia and nsa to work closely together when it comes to National Security. The transformation of the fbi over the last 20 years has been focused on that exists, but still existing in a way that protects Civil Liberties and privacy. Having worked at the nsa and fbi, you cannot have a system where one organization has responsibility inside of the United States with the authority to arrest. The cia and nsa do not have the authority to arrest people in the United States. The fbi does to disrupt a threat. The fbi is the organization with the mission to understand these threats that may emanate from overseas, whether that is a paris threat, cyber threat, espionage threat. To take steps inside the United States to stop it. That could be knocking on the door of an American Company and saying, we are seeing efforts to compromise your network. Here is what you need to do to stop that. That is the fbis job. We cannot stop them from doing their job. We would be stopping there job if we were to take them out of the ability to have access to 702 collections, so i think it is a deeply flawed suggestion to remove the fbi. Stewart they have different recommendations. Want to cut the fbi out. They did want them to get a warrant at least when they were at the point of knowing there was something in the database that they wanted to see. I just did a podcast, for those of you who listen to my podcast, it will be distributed later today or tomorrow. We interviewed two of the five members of the board, talking about their recommendations. If youd havent heard enough on 72, you can listen to that. That recommendation was sort of split. Two dissenters. Two people said, apply the current statutory standards. But have the judge makes the call. One said, it has to be probable cause. How do you feel about those recommendations . Is that workable . Matt i will talk about that report in a moment. This proposal that the fbi or Intelligence Community should go to a fisa court to get permission to look at information that they lawfully collected. Thats what we are talking about. Intelligence collection that is clearly lawful, that is sitting in the Intelligence Community holdings. Before they query it or look at it, they need to go and ask for additional permissions from a judge. Whether that is to show probable cause or meet some other standard. I think this is a really bad idea. For a number of reasons. One, its not legally required. Every court that has looked at this question of, does the constitution require an additional approval by a judge before looking at lawfully collected information to get a warrant . Every court has said no, no court has said you need to go and get additional approval to look at lawfully collected information. It is a policy choice that we would be making, not a legally required one. This policy choice would really hamstring, especial