Transcripts For CSPAN2 The Communicators Encryption And Priv

Guest thank you, peter, for having me. I help on cyber issues in the deferment of justice. It hosts at host of issues from Election Security issues to supply chain issues to crypto currencies to encryption and access to data. Host and what exactly do you do . Do you bring cases against people who have violated law . Guest as you know, the garment of justice we are to enforce confederal, committal lot. An important part of what we do is bring terminal cases against individuals, organizations, foreign nation state actors who violate u. S. Federal law and there is a policy component to what i do which is to help the attorney general, Deputy Attorney general formulate policies working with the Congress Working with our interagency to advance rule of law. Is your position political or career . Guest i served in a political office. My role as a career, im a career employee. Its a little bit of both. Im a career person who serves in a political office. Host how long have you been at doj . Guest i started my career about 12 years ago and started as assistant u. S. Attorney for about eight years in maryland and then about three years ago moved to maine justice where i currently move into a leadership role with that apartment. Host you mentioned encryptions and that has been in the news recently with the saudi terrorists in florida and of course, the San Bernardino shooting back several years ago. What is the current thinking when it comes to encryption . And the doj . Guest i appreciate the question and i should emphasize the deferment of justice we believe in strong encryption and we believe in making sure that data is secure and that they be a partner our mission is to prosecute cyber criminals who steal data and violate u. S. Federal law so we believe in encryption but we are worried about is what we call war and proof. Those implementation of encryption that is so strong that essentially only the user can access the content of data. That is problematic because when we go to a judge, neutral judge and seek a warrant which is what the constitution requires increasingly we are running into a situation where we cant execute those lawful orders. I use the example you mentioned with the saudi shooter back in december at pensacola. He had two iphones. One of which he put a bullet into which one would suggest that there is information on that phone that he did not want people to have access to big we went to a federal judge and the judge authorized us to keep the contents of that phone. Because of the way the phone is been architect and engineered we cant get past the passcode on those two phones. You can see the significant problem there. We received a court order and we need access to the evidence to run down the investigation and see if there are any coconspirators and understand who that person was comedic eating with but even though we have a lawful means of doing it there is no technical means for us to get into those phones so if you extrapolate that out to Broader Society the number of cases where people engaging in child pornography have evidence on the phone yet we cant access it. That is fundamentally the problem that we have where we have port authorization and gone through all the requirements of what it demands of us and yet the way these devices have been created by that Tech Companies were not in a position to access the evidence. Host so what happened with the saudi shooters phone . Guest that phone is currently being evaluated by the fbi. Fortunately the fbis experts were able to put the phone back together and as i said the suitor shot one of the phones and the other phone was in pretty bad shape when it was recovered from his car. Wrongfully the fbi began trying to search and trying to get into the phone and the fbi took about a month, exhausted its internal options and spoke to foreign partners before and unfortunately none of those partners were able to help us and spoke to the thirdparty Vendor Community so you know, third parties that deal with creating hacking tools and none of those options work. And so in early january we reached out to apple and sought to the companys assistance in trying to help us get past the security functions that the company put into the phones. I say that those fbi efforts continue with i will not get into the specifics but the fbi does continue on its own using its own tools to keep try to gain access but we have reached out to the companies and they designed the product to help us figure out how to get in and execute this lawful court order. Host mr. Sujit raman, can you compel apple to break into that phone . And his apple capable of doing that . Guest there are certainly legal questions around that. In the San Bernardino case which was two years ago similar circumstance and the Justice Department did take apple to court and essentially sued the company under the federal all risks act. That is the Legal Mechanism to force a third party to essentially assist federal investigators in the execution of a court order. So that would be the Legal Framework under which any kind of litigation would pursue and our goal is to avoid litigation with our goal is to try to work with the company productively and in a voluntary way to ensure that all the cybersecurity aspects are protected but that when investigators show up with a court order they have the ability to execute that order. Host is there a slippery slope there . With also privacy . Guest i dont think so. Im glad you mentioned the privacy issue. The fifth amendment which we had for over 200 years, under our system is what draws the line when it comes to privacy. There is no absolute privacy under u. S. Constitutional law. Right . There is inherently a balance between privacy which is very important and Public Safety and the warrant requirement is what brought that line with what a federal magistrate judge ways pros and cons and decides to award a warrant he or she has checked all the boxes the constitution requires between balancing privacy and Public Safety and draws the interest in the favor of Public Safety. That is why i think there is really no privacy issue here. When you seek a warrant you set aside the privacy interest. By the way, when it comes to a dead terrorist there are no privacy issues and that is established under our legal system. The person who is dead has no Fourth Amendment rights but nonetheless the end fbi because its a rule of law agency, nonetheless went to a judge and saw that order. I dont think its about privacy versus security because once we got the court order we satisfied the very significant privacy sake. Host is there a comparison to us mail or email . To this case when comes to phones . Guest there is a comparison and anytime we see content as a matter of policy we seek mormons. If we want to search an american or another persons mail within the United States again, we go through that Fourth Amendment analysis. We seek warrants before we search the contents of anyones mail. Physical mail or email is the same thing. As a matter of policy we go to a federal judge in a neutral arbiter, get a court order to search the contents. Its the very same concept when it comes to phones. Your phone has a lot of very sensitive, personal information about you on it but when we search it we make sure that we first go to a judge and get that constitutional checklist ticked off. I think there is im glad you asked the question because there actually are analogs here that when we satisfy the Fourth Amendment requirement we should have access and its no different with a letter or with email and it should be no different with a is a goal electronic device. Host what about and to end encryption and how will that affect your work . Guest end to end encryption has Significant Impacts on Law Enforcement function. We spoke in very publicly and the attorney general with two of his foreign partners have issued a public letter to facebook which came out in october of last year, i think, where facebook or to end to end encrypt all its medications on his putt form which the comedy is that it plans to do that could have a very Significant Impact on child asportation investigations in particular because that is often what happens is people who are exploding children or abusing children will communicate and try to groom children using safe book Facebook Messenger or the communicate over facebook as a website or over instagram. Right now facebook actually does a pretty good job and monitoring its own networks so it can see if child photography is being traded across its networks. When it sees that through an algorithm and reports it to the National Center for missing an expert in children which in turn then notifies federal lawenforcement, state and local lawenforcement paid millions and millions of tips were provided to the National Center last year was something 18 million kids from facebook. If facebook end to end encrypt its platforms the company itself will lose this ability into whats happening on its platforms in the estimation is about 70, 75 of those tips will go dark. We will never even learn about them. Think about all the children who are being abused as we speak who we will not be able to track down her death a concrete manifestation of what end to end encryption can do. Let me make a related point, apple has already end to end encryption is i messages system which is similar but if you compare the number of cyber tips facebook reported last year which is, as i said which is around 18 million and apple, recorded some be like 100 or 120 i think that is the difference. It is not that apple magically runs clean platforms where no one is engaging in child photography but apple has chosen to bind itself to what is happening the risk of negation networks and thus is unable to produce these tips to the National Center for missing and excluded children but thats a very concrete manifestation of what end to end encryption can have on Law Enforcement. As i said at the outset, we believe in encryption. Department of justice we want to protect people from having their data stolen. It is particular implementations of encryption this military grade warrant proof encryption that has a significant Law Enforcement. Our hope is to find a reasonable middle. We give you an example, gmail. Very popular way of communicating. Gmail is encrypted from the person sending the message to google servers from google servers to the recipient. Pretty secure means of communication and yet there is a moment on google servers where the information is decrypted. Why is that . Because google wants to filter material for malware, viruses to make sure that what is happening isnt compromised. That is also the moment when google can execute a search warrant. Gmail is not warrant proof encrypted. Its very strong and very strongly encrypted but it is not warrant proof encrypted print that is all we are asking for is a limitation of encryption that Keep Communications secure and still allow for the processing of lawful court orders. That is a model that seems to work and that is all we are asking for speed. Host how do other countries do that . Guest great question. There are a couple different ways to look at it. You can go off to the bar spectrum which is a Authority Area nations and like china with hundred russia has very intrusive cybersecurity laws on the books that if you look at them on paper will require companies to turn over all sorts of information and thats an open question to be honest with you. We dont know exactly how Companies Like apple are complying or not complying with chinese law. We do know that theyve made a number of accommodations, particularly in the last year in response to these authoritarian regimes, very small example is when the Chinese Government complained about the taiwan emoji deed available on apple iphones that are sold in China Company essentially buckled once the Chinese Government said get rid of it. Apple has made all sorts of accommodations with authoritarian regimes. A bigger example, frankly a more important one, is the chinese obscured law requires companies doing business in china to store data locally. Essentially it makes access to the Data Available on any kind of government request. Apple did not push back. It formed a joint venture with a local Chinese Company and, as far as we no, storing china use a dater in china but our concern is that the company has made a number of accommodations to authoritarian regimes which have no due process or rule of law values. Instead here in america of course we are a rule of law society and it is troubling to us that they have pushed back so hard against us when we calm with a lawful court order issued by a neutral, federal judge and yet we have no insight into what is happening under the authoritarian regimes. That is one answer to your question with the authoritarian comedies will move irrespective of what we do here at home but we have seen examples from the united kingdom, australia and these are other rule of law that have started to enact legislation because they recognize that they need to find that right balance with Public Safety on one hand they had the Investigatory Powers Act which allow the government access under certain circumstances australia last year enacted legislation which is also a step in the right direction so we are seen globally that rule of law countries are moving in ways that we can support and authoritarian nations are moving in ways that give us considerable pause and so frankly as a society here in the United States we need to be part of this broader International Conversation because we run the risk of falling behind and this is such a pressing Public Policy issue that there needs to be in the United States and unfortunately right now its a tech comedies that are essentially making policy. It is their Technical Innovations that are setting the bar in that is not how it should be in a democratic society. Mr. Sujit raman, the two cases we talked about, San Bernardino and penns gola both were apple phones and does this make any difference if this were a korean Samsung Phone . Guest it should not make a difference. Our legal authorities are company neutral. From a legal perspective it would not make any difference which company we are talking about. Host how much of her time is spent on Digital Currency today . Guest Digital Currencies are a significant part of what i do. Crypto currencies have the potential for Great Innovation and our concern though is that it is also creates an opportunity for bad actors that arent in a regulated space to engage in money flows across borders. Our concern is that the dark web, you see a lot of people on the dark web so our goal is to make sure he has insight into what is happening when people are exchanging money and it is certainly one of our priorities to ensure that similar to the lawful access issue weve been talking about with encryption that when there is a court authorized means for lawenforcement to gain information or gain access and that we maintain that ability to gain access. Host one of the secrets about bitcoin is that nobody knows who owns it and where it is located, correct . Guest bitcoin is an interesting example because you can actually attract Bitcoin Transactions. As you know, its a probably available to strip it in so the way the blocking Technology Works is essentially you contract Bitcoin Transactions because they have to be logged in a publicly accessible ledger that is available to anyone who is engaging in a transaction. This is something weve spoken about publicly. Bitcoin itself is something we contract under appropriate circumstances but what is concerning is there a number of crypto currencies that are more peer to peer, similar to the creations issues weve talked about there is no centralized ledger that creates Significant Investor great issues and creates significant policy issues for us for the money laundering, terrorist finance that i described earlier but we have no known wad our interest is when we have not authorized when we have a authorized court order we can gain access or insight into what is happening it was so many of these Digital Currency exchanges located abroad they dont comply with u. S. Money laundering rules and we have considerable concerns that a lot of that information is not accessible to us. Host where you gain the expertise on these crypto currencies . Guest im lucky to have had access to some of the smartest people in the government and so when we try to foreign policies issues we talked to policy experts and talk to our prosecutors in the field and talk to our fbi agents and our colleagues in the Intel Community and try to gain as much insight as we can and advocate for intelligent reasonable Election Security<\/a> issues to supply chain issues to crypto currencies to encryption and access to data. Host and what exactly do you do . Do you bring cases against people who have violated law . Guest as you know, the garment of justice we are to enforce confederal, committal lot. An important part of what we do is bring terminal cases against individuals, organizations, foreign nation state actors who violate u. S. Federal law and there is a policy component to what i do which is to help the attorney general, Deputy Attorney<\/a> general formulate policies working with the Congress Working<\/a> with our interagency to advance rule of law. Is your position political or career . Guest i served in a political office. My role as a career, im a career employee. Its a little bit of both. Im a career person who serves in a political office. Host how long have you been at doj . Guest i started my career about 12 years ago and started as assistant u. S. Attorney for about eight years in maryland and then about three years ago moved to maine justice where i currently move into a leadership role with that apartment. Host you mentioned encryptions and that has been in the news recently with the saudi terrorists in florida and of course, the San Bernardino<\/a> shooting back several years ago. What is the current thinking when it comes to encryption . And the doj . Guest i appreciate the question and i should emphasize the deferment of justice we believe in strong encryption and we believe in making sure that data is secure and that they be a partner our mission is to prosecute cyber criminals who steal data and violate u. S. Federal law so we believe in encryption but we are worried about is what we call war and proof. Those implementation of encryption that is so strong that essentially only the user can access the content of data. That is problematic because when we go to a judge, neutral judge and seek a warrant which is what the constitution requires increasingly we are running into a situation where we cant execute those lawful orders. I use the example you mentioned with the saudi shooter back in december at pensacola. He had two iphones. One of which he put a bullet into which one would suggest that there is information on that phone that he did not want people to have access to big we went to a federal judge and the judge authorized us to keep the contents of that phone. Because of the way the phone is been architect and engineered we cant get past the passcode on those two phones. You can see the significant problem there. We received a court order and we need access to the evidence to run down the investigation and see if there are any coconspirators and understand who that person was comedic eating with but even though we have a lawful means of doing it there is no technical means for us to get into those phones so if you extrapolate that out to Broader Society<\/a> the number of cases where people engaging in child pornography have evidence on the phone yet we cant access it. That is fundamentally the problem that we have where we have port authorization and gone through all the requirements of what it demands of us and yet the way these devices have been created by that Tech Companies<\/a> were not in a position to access the evidence. Host so what happened with the saudi shooters phone . Guest that phone is currently being evaluated by the fbi. Fortunately the fbis experts were able to put the phone back together and as i said the suitor shot one of the phones and the other phone was in pretty bad shape when it was recovered from his car. Wrongfully the fbi began trying to search and trying to get into the phone and the fbi took about a month, exhausted its internal options and spoke to foreign partners before and unfortunately none of those partners were able to help us and spoke to the thirdparty Vendor Community<\/a> so you know, third parties that deal with creating hacking tools and none of those options work. And so in early january we reached out to apple and sought to the companys assistance in trying to help us get past the security functions that the company put into the phones. I say that those fbi efforts continue with i will not get into the specifics but the fbi does continue on its own using its own tools to keep try to gain access but we have reached out to the companies and they designed the product to help us figure out how to get in and execute this lawful court order. Host mr. Sujit raman, can you compel apple to break into that phone . And his apple capable of doing that . Guest there are certainly legal questions around that. In the San Bernardino<\/a> case which was two years ago similar circumstance and the Justice Department<\/a> did take apple to court and essentially sued the company under the federal all risks act. That is the Legal Mechanism<\/a> to force a third party to essentially assist federal investigators in the execution of a court order. So that would be the Legal Framework<\/a> under which any kind of litigation would pursue and our goal is to avoid litigation with our goal is to try to work with the company productively and in a voluntary way to ensure that all the cybersecurity aspects are protected but that when investigators show up with a court order they have the ability to execute that order. Host is there a slippery slope there . With also privacy . Guest i dont think so. Im glad you mentioned the privacy issue. The fifth amendment which we had for over 200 years, under our system is what draws the line when it comes to privacy. There is no absolute privacy under u. S. Constitutional law. Right . There is inherently a balance between privacy which is very important and Public Safety<\/a> and the warrant requirement is what brought that line with what a federal magistrate judge ways pros and cons and decides to award a warrant he or she has checked all the boxes the constitution requires between balancing privacy and Public Safety<\/a> and draws the interest in the favor of Public Safety<\/a>. That is why i think there is really no privacy issue here. When you seek a warrant you set aside the privacy interest. By the way, when it comes to a dead terrorist there are no privacy issues and that is established under our legal system. The person who is dead has no Fourth Amendment<\/a> rights but nonetheless the end fbi because its a rule of law agency, nonetheless went to a judge and saw that order. I dont think its about privacy versus security because once we got the court order we satisfied the very significant privacy sake. Host is there a comparison to us mail or email . To this case when comes to phones . Guest there is a comparison and anytime we see content as a matter of policy we seek mormons. If we want to search an american or another persons mail within the United States<\/a> again, we go through that Fourth Amendment<\/a> analysis. We seek warrants before we search the contents of anyones mail. Physical mail or email is the same thing. As a matter of policy we go to a federal judge in a neutral arbiter, get a court order to search the contents. Its the very same concept when it comes to phones. Your phone has a lot of very sensitive, personal information about you on it but when we search it we make sure that we first go to a judge and get that constitutional checklist ticked off. I think there is im glad you asked the question because there actually are analogs here that when we satisfy the Fourth Amendment<\/a> requirement we should have access and its no different with a letter or with email and it should be no different with a is a goal electronic device. Host what about and to end encryption and how will that affect your work . Guest end to end encryption has Significant Impact<\/a>s on Law Enforcement<\/a> function. We spoke in very publicly and the attorney general with two of his foreign partners have issued a public letter to facebook which came out in october of last year, i think, where facebook or to end to end encrypt all its medications on his putt form which the comedy is that it plans to do that could have a very Significant Impact<\/a> on child asportation investigations in particular because that is often what happens is people who are exploding children or abusing children will communicate and try to groom children using safe book Facebook Messenger<\/a> or the communicate over facebook as a website or over instagram. Right now facebook actually does a pretty good job and monitoring its own networks so it can see if child photography is being traded across its networks. When it sees that through an algorithm and reports it to the National Center<\/a> for missing an expert in children which in turn then notifies federal lawenforcement, state and local lawenforcement paid millions and millions of tips were provided to the National Center<\/a> last year was something 18 million kids from facebook. If facebook end to end encrypt its platforms the company itself will lose this ability into whats happening on its platforms in the estimation is about 70, 75 of those tips will go dark. We will never even learn about them. Think about all the children who are being abused as we speak who we will not be able to track down her death a concrete manifestation of what end to end encryption can do. Let me make a related point, apple has already end to end encryption is i messages system which is similar but if you compare the number of cyber tips facebook reported last year which is, as i said which is around 18 million and apple, recorded some be like 100 or 120 i think that is the difference. It is not that apple magically runs clean platforms where no one is engaging in child photography but apple has chosen to bind itself to what is happening the risk of negation networks and thus is unable to produce these tips to the National Center<\/a> for missing and excluded children but thats a very concrete manifestation of what end to end encryption can have on Law Enforcement<\/a>. As i said at the outset, we believe in encryption. Department of justice we want to protect people from having their data stolen. It is particular implementations of encryption this military grade warrant proof encryption that has a significant Law Enforcement<\/a>. Our hope is to find a reasonable middle. We give you an example, gmail. Very popular way of communicating. Gmail is encrypted from the person sending the message to google servers from google servers to the recipient. Pretty secure means of communication and yet there is a moment on google servers where the information is decrypted. Why is that . Because google wants to filter material for malware, viruses to make sure that what is happening isnt compromised. That is also the moment when google can execute a search warrant. Gmail is not warrant proof encrypted. Its very strong and very strongly encrypted but it is not warrant proof encrypted print that is all we are asking for is a limitation of encryption that Keep Communications<\/a> secure and still allow for the processing of lawful court orders. That is a model that seems to work and that is all we are asking for speed. Host how do other countries do that . Guest great question. There are a couple different ways to look at it. You can go off to the bar spectrum which is a Authority Area<\/a> nations and like china with hundred russia has very intrusive cybersecurity laws on the books that if you look at them on paper will require companies to turn over all sorts of information and thats an open question to be honest with you. We dont know exactly how Companies Like<\/a> apple are complying or not complying with chinese law. We do know that theyve made a number of accommodations, particularly in the last year in response to these authoritarian regimes, very small example is when the Chinese Government<\/a> complained about the taiwan emoji deed available on apple iphones that are sold in China Company<\/a> essentially buckled once the Chinese Government<\/a> said get rid of it. Apple has made all sorts of accommodations with authoritarian regimes. A bigger example, frankly a more important one, is the chinese obscured law requires companies doing business in china to store data locally. Essentially it makes access to the Data Available<\/a> on any kind of government request. Apple did not push back. It formed a joint venture with a local Chinese Company<\/a> and, as far as we no, storing china use a dater in china but our concern is that the company has made a number of accommodations to authoritarian regimes which have no due process or rule of law values. Instead here in america of course we are a rule of law society and it is troubling to us that they have pushed back so hard against us when we calm with a lawful court order issued by a neutral, federal judge and yet we have no insight into what is happening under the authoritarian regimes. That is one answer to your question with the authoritarian comedies will move irrespective of what we do here at home but we have seen examples from the united kingdom, australia and these are other rule of law that have started to enact legislation because they recognize that they need to find that right balance with Public Safety<\/a> on one hand they had the Investigatory Powers Act<\/a> which allow the government access under certain circumstances australia last year enacted legislation which is also a step in the right direction so we are seen globally that rule of law countries are moving in ways that we can support and authoritarian nations are moving in ways that give us considerable pause and so frankly as a society here in the United States<\/a> we need to be part of this broader International Conversation<\/a> because we run the risk of falling behind and this is such a pressing Public Policy<\/a> issue that there needs to be in the United States<\/a> and unfortunately right now its a tech comedies that are essentially making policy. It is their Technical Innovations<\/a> that are setting the bar in that is not how it should be in a democratic society. Mr. Sujit raman, the two cases we talked about, San Bernardino<\/a> and penns gola both were apple phones and does this make any difference if this were a korean Samsung Phone<\/a> . Guest it should not make a difference. Our legal authorities are company neutral. From a legal perspective it would not make any difference which company we are talking about. Host how much of her time is spent on Digital Currency<\/a> today . Guest Digital Currencies<\/a> are a significant part of what i do. Crypto currencies have the potential for Great Innovation<\/a> and our concern though is that it is also creates an opportunity for bad actors that arent in a regulated space to engage in money flows across borders. Our concern is that the dark web, you see a lot of people on the dark web so our goal is to make sure he has insight into what is happening when people are exchanging money and it is certainly one of our priorities to ensure that similar to the lawful access issue weve been talking about with encryption that when there is a court authorized means for lawenforcement to gain information or gain access and that we maintain that ability to gain access. Host one of the secrets about bitcoin is that nobody knows who owns it and where it is located, correct . Guest bitcoin is an interesting example because you can actually attract Bitcoin Transactions<\/a>. As you know, its a probably available to strip it in so the way the blocking Technology Works<\/a> is essentially you contract Bitcoin Transactions<\/a> because they have to be logged in a publicly accessible ledger that is available to anyone who is engaging in a transaction. This is something weve spoken about publicly. Bitcoin itself is something we contract under appropriate circumstances but what is concerning is there a number of crypto currencies that are more peer to peer, similar to the creations issues weve talked about there is no centralized ledger that creates Significant Investor<\/a> great issues and creates significant policy issues for us for the money laundering, terrorist finance that i described earlier but we have no known wad our interest is when we have not authorized when we have a authorized court order we can gain access or insight into what is happening it was so many of these Digital Currency<\/a> exchanges located abroad they dont comply with u. S. Money laundering rules and we have considerable concerns that a lot of that information is not accessible to us. Host where you gain the expertise on these crypto currencies . Guest im lucky to have had access to some of the smartest people in the government and so when we try to foreign policies issues we talked to policy experts and talk to our prosecutors in the field and talk to our fbi agents and our colleagues in the Intel Community<\/a> and try to gain as much insight as we can and advocate for intelligent reasonable Public Policy<\/a>. Host what is the role of congress in developing regulations . That we have been discussing. Guest congress has an active role in a democracy ultimately the people rule and it will be up to congress to come up with intelligible reasonable rules in this area. Its an active conversation taking place on capitol hill as we speak and we attribute to that. Host sujit raman is the associate directory attorney general and he has been our guest on the committee caters. Joining us on the communicators is jim baker, mr. Baker, how does one become the general counsel of the fbi . Guest what is the word about how you get to practice broadway . Practice, practice. I worked in the deferment of justice for a long time and among other things in terms of gaining Technical Expertise<\/a> i built a lot of relationships. One of those relationships was with my boss and he was Deputy Attorney<\/a> general, jim comey. Jim and i worked at doj and then we Work Together<\/a> in the private sector and then when he became director of the fbi he asked me to take on that job and thats how i got that job. Host how long were you in opposition . Guest for four years. Host what did the technical part of that job entailed . Guest multiple things really. It is the general counsel so its a lawyers jobs you have to be a lawyer and so knowing enough about the important areas of the law that the fbi deals with an order in to spot issues and figure out who is helping and how to answer questions from Senior Executives<\/a> and how to bring in the right people so my goal always was not to just give the best answer i have but to make sure the bureau got the best answer that there was. That may sometimes be me giving the answer but often and usually involved bringing in other experts either from within the bureau, debarment of justice or some other government agency. Host in your fbi career and especially as general counsel, did you find your after year the increase in technical or Technology Cases<\/a> increasing . Guest absolutely. Absolutely. Over the years i worked at the moment of justice in a variety of roles from 1991 to 2018th and absolutely technology became much more important to the point that really today i think lawyers are not competently representing their clients that they dont have a sufficient understanding of technology and this is something i preach frequently to folks that worked with me in the office of general counsel elsewhere at the fbi and doj. It doesnt matter what division of the lot you working today but you need to understand technology sufficiently and that does not mean to write code or design a network or anything like that but you got to be able to spot the legal issues that are out there to address concerns and the people in the men women are trying to do investigative support are themselves using technology and need help making sure they stay within the requirements of the law and that to the extent the lot needs to be change that the lawyers are involved in that process understand what is going on can make appropriate changes. Host why did you leave the fbi in 2018 . Guest i left in 2018 because jim comey got fired, you may have heard and chris ray became the fbi director and after i stayed and worked for chris for a period of time i had known chris back when he was at the deferment of justice and we worked together there and it was logical at a certain point in time the chris wanted to bring in someone new and asked me if i would step aside and i said ok okay. Host one issue that you dealt with was the San Bernardino<\/a> shooter so remind us what that was and what was your role . Guest this was a terrorist attack in 2015, december if im not mistaken and many people were killed and wounded and the information that we had was that it was conducted by an isis affiliated person or persons claimed to be affiliated with isis. A terrorist attack in the United States<\/a>. We realized that the perpetrators had, among other things, an iphone and an iphone given how people use Technology Today<\/a> and anyone smart phone is likely to have a lot of information about that persons activities, networks, contacts and so on and it seemed basic and logical that the fbi would want to get access to that persons iphone and so i led the fbis legal efforts with respect to trying to do just that. Host what was the outcome . Guest the outcome was eventually we became the fbi through the deferment of justice became involved in the investigation with apple about that because they had a different view about whether it should be required to alter how its systems worked in order to be able to provide us with that access and so dod agreed and we went to court but in the middle of the Court Process<\/a> a third party came forward and said that they thought they had a solution that would enable the fbi to get into the home without having assistance with apple and they came forward and provided us with the solution and tested it and assessed that it worked and for that particular iphone and so therefore as a legal matter the case was moved. We do not need the assistance of the court anymore to a common shower objective and so we were, the deferment of justice were required to withdraw the suit and move forward. Host as a societal matter to you still support the idea that we need to get into that phone . Guest well, i guess it depends what you mean by that. Lawenforcement still has encryption of devices or other systems such as end to end messaging applications and those pose real challenges and Law Enforcement<\/a> has a general matter does not have a way in every instance to rely reliably access the content of communications in those situations where the data work medications are encrypted. Theres a real need their fit however, society also has other interests that are important to lawenforcement into all of us such as in particular Cyber Security<\/a> and making sure that our systems and our data and our information is secure from the bad guys and there are many bad guys in the militia that we need to protect ourselves against and so we have to make sure that we are secure lawenforcement and they want to make sure secure in a cyber way and protect privacy and make sure our data is kept private from government and from the bad guys and we also want to make sure, i think, as a society that our companies are competitive on the world stage and that they are innovative and that they are able to achieve great things and not be overregulated or required to design things to government specifications the minute they are created. Im not saying that folks should think about security but it is how heavyhanded the government needs to be with the relevant of new technologies and also we want to make sure that its in the longterm interest of the United States<\/a> to make sure we protect human rights around the world and encrypted devices and systems help people protect or help people defend themselves against a repressive authoritarian regime around the world. The key is or the big question is how do you do all those things simultaneously and have a system that actually works in a secure and reliable way and yet provides Law Enforcement<\/a> access when it has lawful process to do that and we been trying for decades now and as a society both Law Enforcement<\/a>, lawmakers, policymakers and technologists, Civil Liberties<\/a> and organizations we have not found a solution that simultaneously and adequately addresses all those equities. Host where are you landing today . Where it comes to that, where is the balance . Guest into things but congress has known about this problem for a long time when i was at the fbi we made a big deal out of this and i worked on this issue for many years in the apartment of justice has made this an issue and they made this issue a long time. Attorney general barr has recently rehabilitated the efforts in this regard and commerce knows that lon foresman has an issue. Congress also knows that there are these other equities other and it has not acted and has not passed a law to require the companies to change how they go about during their business or to congress has not passed a law to ban encrypted devices or encrypted systems so these systems provide lots and lots of benefits for society, as i said earlier, especially with respect to cybersecurity. Congress is the entity in society that is best equipped to balance those equities and so far has not enacted. That is reality. Given that reality and im not sure even with the deferment of justice renewed efforts in this guard im not sure congress is going to change the law and we can come back to that if you want but even that and given the fact that Society Faces<\/a> what i think of as an exit essential risk for malicious cyber actors weaning we are so dependent on these systems that our vulnerable we are so dependent on them for so many important things we do in society that we all know how integrated Digital Technology<\/a> is into our lives know that if it wears to be a catastrophic failure it would represent an existential threat to the adequate functioning of society to protect the health, safety and welfare of all americans and citizens in the countries of our allies around the world and im quite worried about that. One of the ways we have to protect ourselves is an caption for corruption helps protect us against malicious cyber actors especially including nationstates. My view is that lawenforcement needs to rethink its approach to encryption in light of the fact that Congress Wont<\/a> act and in light of the fact that there are significant Cyber Threats<\/a> and embrace encryption instead of trying to find ways to socalled break it and thats not really what lawenforcement is tried to do but in other words it needs to embrace encryption as a way to enhance the cybersecurity and therefore the security of all americans and i think that is a better approach at this junctu juncture. Host jim baker, we had another shooting down in pensacola and they tried to get into the saudi mans phone and he might have cohorts down there, sleeper cells and we need to protect him from that . Guest absolutely we do. But the way it is today there is no law that clearly requires apple or any other company similarly situated to reengineer their systems in order to provide data access. If Congress Wants<\/a> that and Congress Thanks<\/a> its important that Congress Needs<\/a> to pass a law to require apple and these other companies to do that. Congress has not done so so far. In part, i think, because members of congress are reasonably hesitant to do something that will expose everybody to major cybersecurity risks. Host why are you here at the state of the net . Guest im here at the state of the net to continue to talk publicly about these issues because ive invested a substantial amount of my career in them and its important to the security and Constitutional Rights<\/a> of americans and making sure that there is a robust, informed public debate about them. Its currently important to me personally and i hope that we can find a way forward collectively as a society and come together on these issues because we all are significant invested in them and getting it right is greatly important to the country so whenever i can say and try to help the debate and make it more informed or more robust than im happy to do that in any form and with any group of people that will listen to me. Host mr. Baker, another thing in the news is Foreign Intelligence Surveillance Act<\/a> court system and is it working . Guest fisa, Foreign Intelligence Surveillance Act<\/a>, is in need of modifications and reform in a lot of different ways. There are two Different Things<\/a> to think about, there is the law and then there is the process by which the government implements the law. As the Inspector General<\/a> report easily revealed there were significant mistakes, omissions, errors that in particular the fbi committed that i am not going to defend and are not acceptable and so the Inspector General<\/a>, the fisa court, fbi, Justice Department<\/a> are focused intensively on that right now and i think that is a good thing. If changes need to be made to the process then so be it. That would be a good and hopeful thing because the imagine people need to have confidence that that is working because its critical to prevent the privacy and security. Stepping back from that in the current digital era in which we live i am quite concerned about whether fisa as a whole and im talking mainly about the statute now, adequately protects our security and our privacy. Things have changed so dramatically over the past 20, 25 years that i think it is time to take another look at whether some of the fundamental precepts that underlie the structure of the fisa statute still work in this environment. In particular, there is a law that goes into or a lot flows from rather a determination that one of the people involved in a communications of u. S. Person or somebody located in the United States<\/a>. Those two things are increasingly very hard to determine in real time and so as a result of that weve seen over the past several years mistakes are made by the government with respect to that or the government hesitate to collect certain medications and so that just does not help anybody if there is hesitancy or confusion with respect to obtaining, processing, analyzing and processing the medications of american so i think we need to rethink how we do that. I dont have an answer sitting here today for help as i say to do that but i think its an appropriate thing to take a look at. How much of what we talked about so far stems from 911 . Guest while, 911 was a watershed event for the country and for the world really and for the intelligence agencies and for Law Enforcement<\/a>, and change how long was meant things about these issues and it accelerates the pace at which the fbi needed to operate. It coincided with the substantial evolution of internet medications because that happened at the same time so the fbi and the fbi has been expected since 911 really to have zero errors. To make sure that there are no additional attacks of that scale on the United States<\/a>. It is not been perfect and honestly there have been many smaller scales even if you include boston which is a major event for the city of boston and for the nation but im just comparing it to 911 but you know, the fbis response body is to basically be perfect and that presents and puts on the fbi a tremendous amount of pressure so that when you come to a situation like San Bernardino<\/a> and pensacola the fbi logically will be expected to be sure that it is turned over every rock and followed every Investigative Lead<\/a> to make sure there are no other plots of foot and that any perpetrators who might have been in all those activities have been apprehended and disrupted and so that is why i think fbi is so adamant about trying to address this problem and not trying to irrigate or take to itself the powers it should not have but to Tell Congress<\/a> to make sure that it understands that this is a significant problem. Thats how i think about it. What are you doing today . Guest today i was speaking here at this conference and following events with respect to impeachment because i may am a cnn legal analyst and so im called upon on regular basis to talk about those topics so thats a fulltime job. Host i apologize, but what do you do for living today . Guest what i do for a living, so, i am the director of National Security<\/a> cybersecurity at the R Street Institute<\/a> which is a nonpartisan profit think tank here in washington dc. I am a cnn legal analyst and also teach a Law School Course<\/a> in the National Security<\/a> harvard law school. Host jim baker has been our guest, thank you for your time. Guest thank you. Host just a reminder that this Communicators Program<\/a> as well as all others are available as podcasts. Cspan your unfiltered view of government. Greeted by cable and 1979 and brought to you today by your television provider. Cspans washington journal live everyday with news and policy issues that impact you. Coming up tuesday morning. Watch cspans washington journal live at 7 00 a. M. Eastern on tuesday morning. Join the discussion. Sunday booktv features conversations on u. S. President s and race. Plus america has a super power. Starting at noon eastern on indepth a live conversation with author and White House Correspondent<\/a> april. Of study for this and Morgan State University<\/a> just down the road and i studied for this and this was my vocation. Not knowing that i would be under fire by asking questions. I have asked questions of each president , the same question except for one, each president over the last 21 years but asking questions now has me fearing for my life. Her latest book is under fire, her other books include at moms knee and the presidency blackandwhite. Join the conversation with your phone calls, tweets, text and facebook messaging. And 9 00 p. M. Eastern on after words in his latest book americas Expiration Date<\/a> syndicated columnist cal thomas explores the rise and fall of nations historically. He is interviewed by author and cnn contributor amanda carpenter. We are not each others enemies as lincoln said. If we dont make this great experiment called democracy or Constitutional Republic<\/a> for succeeding generations but as i argue in my book we will expire and there is no guarantee, things are looking great but when things are looking great it is time to shore up the foundations. Watch authors april ryan and cal thomas sunday on booktv on cspan2. Next, a review of the impeachment process. The institute of politics, policy and history at the university of the District Of Columbia<\/a> hosted congressman of maryland. Former rnc chair and the Deputy White House<\/a> chief of staff for president clinton. Former washington dc mayor moderated the discussion. 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