Welcome back for the 2019 cato surveillance conference, i am still Julian Sanchez a senior fellow here and im pleased to welcome you for the afternoon session there is more fascinating stuff happening in the world of surveillance that can be covered in fully panels and we are always glad to have a lineup of smart focus to address that range of topics in our shorter flash talks and to begin the senior counsel and director of Freedom Technology and project, this is a time where we hear a lot about the goal of putting the first but surveillance space this often creates friction with our allies when our surveillance goals may conflict and im happy to welcome that from an international perspective. applause thanks julian and hello. I am with the center for democracy and technology, ww the cdt. Org. I want to talk about the applications of America First surveillance policy. When i say America First i mean americans first, the surveillance policy on the intelligence side of the equation discriminates in favor of americans and against foreigners in a fairly dramatic way when it comes to surveillance that occurs outside the United States. Inside the United States it is relatively even between americans and foreigners. In both cases when the government wants to surveil a person in the United States and collect Communications Content for intelligence purposes it has to show that the person is an agent of a foreign power or an entity like a Foreign Terrorist Organization or a Foreign Government. That requirement is a very high level of proof of probable cause that the person is an agent of a foreign power and has to be done in front of a judge in the supersecret pfizer court. But outside the United States, International Intelligence surveillance directed at foreigners does not have those protections. If conducted under executive order 12333 there is no probable cause requirement, no requirement that the person being agent of the government or of a Foreign Terrorist Organization and no judge making any determination at all. Any activity and intentions of a foreigner are fair game and both collection meaning not targeted collection is acknowledged. Internationally for foreigners who are using u. S. Cloud providers, the news is not better that surveillance is conducted under section 702 and you heard about that on the last panel suffice to say no probable cause, no determination that the target is a foreign power and no judge is approving individual targets and theyve approved problematic surveillance based on the certification but no determination with respect to individual targets. Any information relevant to u. S. Foreign policy or National Security is fair game. So America First surveillance policy can impact the right of foreigners because of standard or low in the u. S. Government ability to Access Communications is very high especially relative to other countries, it is high in part because many of the large providers are located in the United States. But America First diminishes the rights of americans and i say that because we americans communicate more than ever with foreigners were abroad, even the domestic communication can be routed abroad where they might be subject to permissive surveillance regimes. By targeting foreigners u. S. Government collects communications of people United States intentionally incidentally, that means we intend to collect the communication of americans who are communicating with foreign targets, it is called incidental targeting. By targeting foreigners of low standards the u. S. Government amasses a database of the communication that includes communication of americans and then it turns around and queries the data for american communication without probable cause that its in foreign power with the result of America First surveillance policy is a diminishion in the rights of americans. By failing to extent basic protection to the foreigners, we allow the database of communications to grow and grow quite huge and includes the communications of american because we communicate with foreigners abroad and communications are collected in the database even though they are domestic to domestic. America first offers very little protection to foreigners and also diminishes the protection that would be otherwise available to americans. I talked about american first and the intelligence contest because thats worth most pronounced. In the context of criminal surveillance where the government is actually investigating a crime, there had been, until last year a distinction between americans and foreigners. Everybody got the same rights. The combat adopted in 2018 for the first time extended a version of America First to criminal surveillance. Under the agreement that the United States entered into with the uk. The uk can compel disclosures of stored content and in real time under uk law which is more permissive than the u. S. Law of all surveillance targets except for americans and except for people present in the United States. That is the first time that criminal surveillance laws have distinguished between americans and everyone else. America first in the criminal side of the equation and had a good adverse effect on americans that it does on the intelligence side. The uk can show that to the United States government, communication that involve americans that were collected when others were targeted. Without the intervention of a judge. The next big test for whether we will continue to extend America First which as ive said is not even protecting americans, the next big test will be a treaty that is being negotiated between the United States, the council of europe and other governments. That treaty is a protocol to existing treaty called the cybercrime convention. This protocol is designed to permit crossborder demands for communication traffic data, think of an email log for subscriber information. So this is not about content. Its about traffic data and subscriber information. How could a country give effect to a foreign order . Well, the protocol says how can do that. You can do that as accepting it is equivalent to a domestic border by endorsing it or by issuing its own Legal Process which i presume will be based on facts that are not provided by Foreign Governments. The u. S. Could give effect to a foreign order to, for example, disclose a lot of your email or youre browsing history, based on a demand issued without judicial review, from a Budapest Cybercrime Convention protocol a signatory like hungary, turkey, russia, albania, or ukraine. Ukraine. Did i say ukraine . Yes, ukraine. It is a signatory to the Budapest Convention, the cybercrime convention, presumably it will sign the protocol to the budapest private cybercrime convention. A mile down the road from this conference there is a big discussion among members of congress about whether to removed from office the president of the United States because he attempted to enlist ukraine in an effort to investigate his political rival joe biden through his son hunter biden who had a position on the board of directors of a company in ukraine. How would ukraine investigate hunter biden . What would it do . Over half of criminal investigations today involve electronic evidence. One could presume that what ukraine would do would be to seek email logs from hunter biden. Hunter biden, presumabley using a u. S. Provider, his email logs are stored by that provider and could become available to the Foreign Government under the Budapest Convention. Even today that providers can volunteer this information. U. S. The law has a flaw it does permit Foreign Governments even your email logs without there being any restriction except from the Foreign Government itself applies. The issue with the Budapest Convention is it will give the Foreign Government a way to compel the information under Foreign Governments laws, so if ukraine wants Hunter Bidens email logs and both the United States and ukraine signed the convention unless the u. S. Makes certain reservations, the ukrainian order could be honored by the u. S. And compel the disclosure of the biden email logs. I think that congress is not going to allow this result. Based on its track record so far, Congress Instead will want to protect americans and throw the foreigners under the best yet again. This is the same approach, throwing the foreigners under the bus, that has also thrown americans under the bus with them because the government then obtains these communications without having to go through the normal Legal Process as if it obtained them directly. That is, the government could choose to give effect to the foreign order by reserving the right to issue its own process section 27. 03d of title 18 and it would have to go in front of a judge to show reasonable suspicion using u. S. Processes to get the information sought by the foreign order. But the Budapest Convention currently doesnt prohibit discrimination. It doesnt prohibit the government to apply that process and a different process for the foreigner data such as the process of simply honoring the foreign demand. Now, this is a problem that will be facing Congress Next year or the year after when it is asked to ratify the budapest Convention Protocol. I think we need, we advocates and people who work at companies and those who are interested in surveillance to be proactive and we need to ensure the budapest Convention Protocol requires equal treatment of data demands of foreigners and of nationals and that it has strong due process protection and it currently doesnt do that. I want to leave you with a thought to be aware of the siren call of America First. It doesnt protect americans. It doesnt put us first and it diminishes the rights of everyone. Thank you. Thanks very much. Next up, if you debated surveillance you probably heard someone Say Something along the lines, i dont know why i should be worried about this, im not worried the government is not investigating me but if you have heard that the person speaking was probably was white because as we knoe from history, the burdens of surveillance dont fall equally on all groups and its because they fall unequally on certain persons so we will do a little bit about the way programs operating under the agis of things like countering violent extremism work to surveil communities much more are under scrutiny than white, christian americans with middleoftheroad political views. Hello, my name is nabihah. I am a legal scholar from Muslim Advocates, a National CivilRights Organization ensuring the freedom of americans of all faiths. Today i will talk about one Surveillance Program imagine if no matter where you go or what you say or how you feel is tracked and the government can monitor you at school, universities, hospitals, Mental Health visits . What if the government aggregated all of this data to make a determination about you . Welcome to countering violent extremism, a Government Program that claims they can identify the violence before it occurs by monitoring their behavior and flagging you across public resources, and private spaces. So what if you frequent a mosque . Discuss policy . Express sadness . That would not be a precursor for violence but that is how it will define the act so where does one go to find a program like this . Not far. Welcome to illinois. Illinois is just one grant recipient for a Program Designed to link federal and local government to private entities in order to monitor individuals. The grant from department of Homeland Security recommends the use of a wholeofgovernment approach this document is the program plan in illinois as you can see according to their own materials the state agency, the grantee, wants to link federal agencies, the fbi and us attorneys office, to state agencies the governor and the air illinois a Terrorism Task force, and other services educators, social service providers, faith and community groups. This isnt just happening in illinois. Programs operate across the country in each of these locations. In just the past four years, there have been 57 to the department of Homeland Security alone operating at every level of government. For anyone who may argue that these programs are somehow effective, they are not. Our own government says so. Those that have evaluated the programs. The evaluation has looked at similar programs and what has happened. In on instance they looks at a uk program called prevent. People were mandated to report the radicalization and the result, children under 18 were reported for normal behavior. There were ethical concerns regarding surveillance and talk of potential repression of legal political dissent and speech. This august, Duke University flagged the programs failures under the Obama Administration because of a lack of structure and opposition from the Muslim American community. These programs dont work. They overcriminalize with a huge surveillance concern but how do we get here . In 2009 the fbi called this a Public Relations with an Outreach Team a Pilot Program meant to connect somali communities in minnesota to determine how much access the fbi has to the Somali Community and to identify targeted contacts within the community. This underground program morphed into a community partnership, the program we know today, in order to bolders these relationships between state agencies and minority groups. Following this in 2009 the fbi designated additional communities of interest including denver and washington dc. This is all part of the Current Program we are discussing today. While they use racial language, racial and religious targeting are discriminatory into this day they continue to focus on somali communities across the us. Monitoring the Program Since their origin to have enough surveillance for the communities. Most of the information about these programs are not public so in 2018, we send freedom of information act requests to 16 different agencies. What we found was an everexpanding program. Take for instance boston where record request from the Muslim Justice league found one program run by the Boston Police department claimed in their grant language somali youth were inherently violent and when left alone will commit violence. The somali Youth Coordinator withdrew from the program over concerns of discrimination. The program even drafted surveys to see if attitudes after the program toward the muslim attitude towards extremists was postive or negative. Could you imagine such survey targets at christians . They are targeted for their faith but yet for such a broad program, lets talk about how much funding they have received. Surveillance is expensive both in 2014 and 2015 the department of Homeland Security provided 10 million Grant Funding these types of programs receive funding from other agencies including department of defense and department of justice. So what kind of oversight follows these large grants . Its minimal. The documents we found shows that at best agencies that receive funding have to submit paragraphlong report. There is no evaluation or reporting and a complete lack of guidance on Civil Liberties or privacy protections so we have to ask where are the programs . We found them in houses of worship. In Montgomery County maryland among other places mosques these programs operate that in 2017 the denver Police Department has a Grant Application that stated they would focus on schoolage children, particularly refugee students because of their risk of radica