Transcripts For CSPAN2 Government Surveillance Privacy Conf

CSPAN2 Government Surveillance Privacy Conference - Part 4 July 13, 2024

Will go back to the auditorium at the Cato Institute for the 2019 cato surveillance conference. Senior fellow, thank you both to those watching at home for joining us. As i mentioned at the start of the conference we focused on issues of surveillance oversight and this years conference or this morning you heard about an array of institutions and entities and persons who work to oversee the secret use of intelligence collection. This ranges from the pfizer court to the inspectors general to government, billy office to the Intelligence Committee of congress and one of the newer and in many ways most publicly useful entities overseen the Intelligence Committee is the piracy and Civil Liberties oversight board. Its a number of valuable reports that have given us unique insights into the programs weve heard discussed earlier such as section 702 and section 215 the authority used for the phone records collection program. Im sure it will be a fascinating discussion so i will pass it off to our extremely accomplished moderator, the professor of the Washington College of law at the american university. Thank you, julian. Thank you for being here and those who are watching online. Its an honor and pleasure to be here and a part part of this conversation with the members. We have three out of the five members here today and two head conflicts and so we are not able to attend unfortunately. I am going to briefly and basically im going to do something nontraditional and basically allow them to introduce themselves. Have seen this done a few times and find it way more interesting than hearing me speak. We have adam klein and i will start with adam. Thank you, jen. We are a nontraditional agency so good were taking a nontraditional approach to introductions rate on adam klein, chairman of the board and also the only fulltime member of the board. We have a fulltime chairman and four parttime members which is one of our unique features. Immediately before taking this position i was at a think tank for new American Security or worked on issues very comparable to the boards mandate of the intersection of National Security, law and emerging technologies and those are the things im generally interested in. I guess we should also throw out and its a shame fact about why we got into this work but before becoming a lawyer high worked for the members of the 911 commission on their post governmental efforts to enact the 41911 Commission Recommendations. One of those recommendations was the subordinate is an issue ive been tracking going back to 2004 when i started doing that work and advocating over the years for the creation of the board and then for the stocking of the board with members and to ensure that i had adequate resources and authorities and its nice to be there to see the board, to fruition with the Previous Group of Board Members who did great work and we have sharon bradford, former executive director here and its nice to see and to continue and push the work forward now. Thank you so much for having us today. Im one of four parttime Board Members and this iteration of the board were lucky we have a technologist but were sorry they cannot be here today pretty hes enormously humble as we take the more technical aspects of the program. [inaudible] i worked on the rule of law and before that i spent time in government and part of that about half of the executive branch and half in the judicial branch. I worked in the office of Legal Counsel at the deferment of justice and with National Security Interest Rate might interest in these issues is longstanding. My parents fled from behind the iron curtain and there were stories of what happened when the breakdown between balance of National Security and privacy falls away. Im thrilled to be here. Thank you. Thank you, jen in the queue for hosting us. So, my name is [inaudible] and im a professor at the university of virginia law where i teach computer crime, of course that addresses some of the issues we deal with in the surveillance area. My path to this board and this set of issues is immediately before i was in academia immediately before that i used to work at the and in the same part of it that i worked at before i was there and i was to determine the National Security division and i joined the National Security division in march of 2013 which was mere moments before a set of disclosures occurred that promulgated the work that the board did in his previous iterations and so that was my entry into this area and i was able to work on some cases involving surveillance and argue cases and until that spread an interest in before that i was in the office of Legal Counsel as well and i had some interaction with initial Security Issues but im happy to be here. Thank you. Ill start with you. You mentioned already you are part of the worked in the 911 Commission Report where the intellectual origins of the board started but could you tell us about the purpose and mission of the board and how it is structured and how it relates to the other oversight agencies entities within the executive branch as well. As a good lawyer i want to author technical clear vacations. After the report i left was working on capitol hill and joined an ngo that the tank measures created called the 911 Public Discourse product which no longer exists but it was a Great Organization that worked to educate congress and the executive branch and the public about their recommendations. Segueing into your question the question had 41 recommendations in its report pursuant to its mandate to investigate the causes of the attack and make recommendations to ensure things like that would not occur again. Many of those recommendations generalizing had the effect or the tendency of centralizing power within the Intelligence Community and within the Homeland Security apparatus and some of those are creating a director of National Intelligence in creating a National Counterterrorism center and improving information sharing and among the intelligence agencies using biometrics to track entry and exits into the United States and that originated in the 911 Commission Report to the tendency of these things as more information and more centralization and more information sharing. On the other side of the balance of the commission recognize that if you create all this new centralized power need to have an increase in oversight powers. Many of those oversight regulations focused on congress but they also looked at oversight within the executive branch and proposed that there be a board within the executive branch to conduct that oversight of effort to protect the nation against terrorism. Thats the genesis of a board and initially constituted within the white house and in 2070 congress shifted gears and established board as an independent executive Branch Agency within a confirmed memb member. How does your work coordinate with the work of the Inspector Generals and the other entities, privacy officers and other officers within the executor branch that are doing some of related work on a day to day basis as well . Sure. Inspector general, to paint a broad brush, focus on individualized reports of waste, fraud or abuse. That is not our mandate. Our mandate is more programmatic. If there are in divide individualized abuses we learn about of course we would take appropriate action and a form the appropriate officials and that could be informative for our oversight because if something goes wrong on the individual case that may suggest changes are improvements needed but our focus i would say is a higher level of generality and is it wise, necessary or their safeguards built in and on the right people making the decisions given the stakes that are play and future indications of a line the government to conduct this analysis and so forth. This is for any of you but how do you decide what programs to work on and where to focus your efforts . There is a ton out there so how do you make the choices that need to be made. Sure. First of all, [inaudible] in terms of thinking about what subject products we want to take on i think we look to for instance, if there are general if something is being reauthorized so we will be issuing a report on waste and fraud and that will hopefully, the next six month or two so we think that will be of benefit to congress and the public of having Greater Transparency in how the program has been operating and we think we can add value to the privacy applications of the program and some thoughts on whether or not the program should be modified and we will look to a version of technology and thats one thing we talked about with strategic plans and to see if theres any programs in that space if the board can offer their insight on and theres a broad array of factors as we look to deciding what projects we take on. The reason that begs the question is because amongst i was the last one to join at which point the report that was just mentioned was the freedom act and it was already in progress. I will step back to see how that project in it so happens that before i joined the board had put out a list of projects that we intend to work on and those made sense to me. I think that one of those situations where we should think through what is the value added to the congress and making public and executive branch and we offer different skill sets and one of our colleagues is a computer scientists not a lawyer. The three of us are lawyers. So it whatever we can do to be useful and thats what we should focus on. And a personal level what youre doing is an enormous amount of work so how do you balance this with your regular jobs . It has been a good amount of work. Absolutely. Just i do the best i can. You know, we have great staff and they put together great drafts but i take every effort to read through every line we put out in i think that we just have to strike that balance. You know, this is problem people may have about the benefit that way its structured right now and i think thats a benefit in the sense that the independence of the board is enhanced by having people who have other things to do and im at liberty to say what i feel is best and in the boards reports. I think that is the Balance Congress struck and its incumbent on us to make it work. I think having parttime Board Members you have a geographic diversity on the board because its helpful not only to people working it other jobs and bringing other conversations to bear on her work but have people surrounded by different geographic conversations that take place and so thats part of it. Lets talk about some of the work youve done. Obviously, as you mentioned there is 215 report that we are the rest of us are eagerly awaiting and my understanding is the issue is the classification issue that remains ongoing challenge so couple of questions about whether you can provide information about whether or not you expect the support to be made public before the extension and the 215 Program Expires and secondly, what highlevel you can talk about with respect to the report. Sure but im happy to go ahead on this one. Just to fill in the background. One of the things that was revealed by the leaks in 2013 was a largescale collection of telephone called metadata so what number called what number and for how long and the knot was on the calls. Our board with the previous membership with sharon working on this did a significant landmark report on this program and after that report a recommendation from other governmental bodies congress decided to turn back that Authority Stay in chile so the government can still collect those records in fairly large numbers as disclosed in public transparency reports but without not to the same extent as it did before this law passed in 2015. This is called the usa freedom act. The government has now had for years and lamenting that law and its coming up for sunset or reauthorization, as the case may be, we have undertaken a deep dive into how the government implement said that new authority to collect telephone call records since it was enacted in 2015. That has been a lot of work by our staff and im pretty confident in saying dave mastered the details to a very granularity extent of how this authority worked and we cant get into the details because, as you said, there is a classic agent process we have to put that product through and thats where we are now. I dont want to imply theres any problem with that process and i think the people in the Intelligence Committee are working hard to work with us to move that forward expeditiously. Its just a big task and very complex material and theres a lot of it and everyone has things on their plate but we do think were receiving good cooperation and completely good faith. Were quite oval there will be something that the public can look at relatively soon in the new year. Great. I know youve testified about this to some extent so i dont know everyone here has had the benefit of reading your testimony on this issue. It was pretty short anyway. [laughter] spirit but it would be great to hear your perspective about what is in your testimony and you are able to while this remains under classification you were able to provide thoughts about the program and its implantati implantation. Sure. Staying at a very high level but at a very high level there are public transparency reports the put hard numbers out there which i think is a pretty great thing that we, as americans, have access to that, by the way, citizens of other countries do not have access to from their intelligence agencies. Those reports show the number of records, while perhaps not bulk collection as they wait the Previous Program was, is still quite large. Hundreds of millions of records here over a relatively small number of years. That was predicated on a very low number of orders. I think it was 14 orders related to 11 targets last year all in the Public Disclosures that the Intelligence Committee and i see some of the people involved in that transparency work here in the audience have done a very good job putting out. That gives you a sense of what the stakes are for a program like this and then there are questions about how the authority was implanted and we looked at the challenges that nsa publicly disclosed in and plummeting the authority and what we found was that those challenges were inadvertent and not the result of any abuse or malfeasance but at the same time my individual judgment as member of the board we will have more information about our collective views when the report is released but my judgment is that the agency made the right decision based on the evidence before it and choosing to suspend the program. I dont want to go any further than that because thats the level of depth we can safely go to unfilled report is out and then were confident there will be some more declassified information that will inform the basis for these judgments. I think adam put this out already but there was a period of time where the program was suspended because of these questions about how the information was being handled and so the question is, as we move forward and talk about reauthorization are you able to talk about the intelligence and is there an ongoing intelligence need to continue this program or would we the okay if it were suspended indefinitely . Talk about the counterterrorism need of metadata analysis. Certainly its a quite high level but i think there is value to having too hot to program so one of the benefits that this Program Allows was to allow the Intelligence Community to reach, not just one telephone away from your calling, but another hopped from that. Its a change from back in the day privacy no disclosure or the program is operated back then [inaudible] its a general intelligence screen need and use for National Security perspective to reach out and i think the question we confront in this program is given the limitations of this particular program was the intelligence value that was being obtained costeffective in this case . Wasnt appropriately balanced with privacy at stake with compliancy issues being confronted and in a general if you step back and look at two hot metadata programs theres no not again there are limitations in this particular program of what metadata could be selected and theres experts talking about the ways in which terrorists are shifting those convocations so there are questions of whether or not this program was reaching all the ways terrorists now communicate and questions about whether the new authorities may need to be brought to bear to reach these new modalities and how they can mitigate and these were the questions confronted and looking at the value of the program. I will defer further discussion until the report is out. I will 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 and were not a result of abuse of authority. At the same time, the decision to shut down the program were suspended was backed up and made sense and so i think hopefully that is helpful for present purposes and stepping back, i think, you can understand difficulties with technical issues it just goes to show how we as a society and as a government need to bring all of our resources to bear to ensure that we are getting programs technically right and hitting the right balance between obtaining

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