The research focuses on the intersection of technology, policy, business losses wider ramifications of key technological trends and development. He testified before congress more recently on drums, privacy and intellectual property and also the broad for the Global Agenda Council and cybersecurity. John is going to go through the basics of sections of a note to and sort of like a onetoone introduction and for the rest of our program today. John, welcome good thank you for coming today. I realize theres probably some countrys top experts on seven of two of the room and perhaps people who know a little more. If youre one of the countrys top, you will learn nothing in the next 25, 30 minutes. The goal of this portion of the talk is to make sure we are all starting to think foundation. Im not going to argue in favor or against section 702. I am going to lay out the same place. My understanding is programmatically this one goes until 12 45 in the without much for you and will come back and go into the remainder of the program. Let me start at the highest level section 702 as part of title vii, transit, allows dna to authorize targeting communication in all three of these prongs, persons other than u. S. Person where reasonably believed outside of the united state to require foreign intelligence information. Those are the three key requirement which relate to section seven of two. In this presentation i will briefly give Historical Context to know sort of how did we get here. Talk specifically about the act of 2008 which teed up the discussion we had this year in congress and go through some of the highlights and key points of section 702. I downloaded this. In 1970 at legislation. This is the original pics enacted in 1978 and it was to authorize electronic surveillance for foreign intelligence purposes and it was directed at communications exclusively between or among foreign powers. That was in 1978. Another feature we see from the legislation does there have to be no substantial likelihood the surveillance will acquire the contents gus of the party. From the earliest days of fight that we see this attention towards not intercepting communications if possible. The other thing that is notable as easy creation of the Foreign Intelligence Court. Chief justice shall publicly designate seven mr. Court judges here today we have 11. That would increase to 11 under the patriot act of 2001. The Foreign Intelligence Surveillance Court was created under the 1978 fisa and in addition the same law also created the review of the Foreign Intelligence Court review, which had been was very rarely used but the appeal of anything from the fed that has been used in several key rulings. Said that framework even section 702 to exist, the framework dates from the original enactment of fisa. Unsurprisingly for legislation that was originally put on the boat in 1978, the years some of the amendment but at least i was able to find. I would give specific attention to some of these latter ones here because those latter amendment are the ones which created section 702 that we have today. So, a precursor to title vii, section 702 is the protect america act 2007. It was then that it in august of 2007 and this was specifically heres the first time we see language like what we have today, having dni and the attorney general authorize the acquisition of the information with persons reasonably believed to be outside the United States. This protect america act of 2007 had a son that builtin to it and it basically was automatically going to expire 180 days after enactment in august 2007 so it then expired at some that in february 2008. From february 2008 onwards there was discussion in congress about what to do and finally a couple months later in july 2008 we had the passage in two of the fisa amendment that is 2008, which is the act that created the title vii that we have today. This was the first time we have that in the form essentially the way we have it today. This is the legislation creating title vii. Youll notice here it has a son said. He was originally created it sunset on december 31, 2012. A little over four years after the original enactment. Said the day before it was going to expire on december 30, 2012 is the reauthorization. It would be nice to think in 2017 this will get resolved before december 30, 2017. If history is any guide it might come down to the wire. In 2012 at the very end, the day before the original 1007 was extended in particularly this language here striking december 31, 2012, inserting december 31, 2017 and thats where we are today. This is the love we have on the books today and the reason we have so much press these days is the issue is extending this either with or without modification is sent and discussed quite a bit. That is kind of a level setting. Here we are. People sometime used the term title vii so i want to put it in context. Isaiah as it exists transfixed as it exists today has a number of titles. Im not going to read them all, the worst section seven of two lives. Title for his registers, title v is Business Records. Section 215 of the patriot act. That is not section 702. We are talking about title vii. Section 702 is a portion of title vii. We push into title vii here within transfixed, title vii. We are here to talk about section 702. Notably, these are rather than u. S. Person. Section seven of two is specifically designed in relation to the communications of people who are not u. S. Person in the other section of title vii which actually address the u. S. Persons. It is specifically not u. S. Persons. The Historical Context in the present context aware section seven 026 within title vii and more broadly within transfixed. First of all, u. S. Persons im not going to read the whole definition, but when we talk about u. S. Person of course have been defended the United States. We also be lawful for a permanent refuge. This is actually a definition of title i, but this is referred to in title vii of the definition of u. S. Lets take a look at what it allows. Section allows the authorization of correcting communications of persons reasonably believe believe to be outside the United States. It doesnt mean they have every single case are, that they need to be reasonably believed to be outside the u. S. The goal is to acquire foreign intelligence information. Thats it. The authorization to do that is basically the attorney general and dni jointly are able to get this authorization that they can do so under two conditions. One is upon the issue at them in order pursuant to the Foreign Intelligence Surveillance Court is sprung one. Alternatively or in addition there is an exigent circumstance problem which allows dni of the attorney general to authorize prior to the Foreign Intelligence Surveillance Court, back within seven days and filed the appropriate paperwork with the Foreign Intelligence Surveillance Court. Said that is the kind of key authorization language you happen to statute. Take a detour here talking about section 702. I want to talk about section 704. The reason i want to do that because a lot of the discussion about 702, you hear people talk about the lack of probable cause and to provide the context they are. Section seven of two relates to nonus persons. Section 704 by contrast relates to acquisition targeting u. S. Persons outside the united state and notably the statutory language from section 704, the probable cause prong and not. People often contrast the probable cause requirement that must be satisfied for section 704 with the absent of such requirement for collection on your section 702 indicated section 704 there is a definition which identifies key features that were probable cause is. That language is not infection 702. So well talk about what is foreign intelligence information there is a definition of that is certainly true crime definition and kind of subsumes the first cannot talk about both those. First of all, this is one of two sides on this. Information, sort of what you would expect. Addressing an actual or potential attack. Sabotaging International Terrorism or clandestine in duties by a foreign power. Thats foreign intelligence information. An additional portion of the definition is broader. This right here is information with respect to a foreign power that relates to for National Defense or the United States or the conduct of the Foreign Affairs of the United States. And think it is reasonable that everything in this slide, attacks and International Terrorism could argue are subsumed by these. This to me is the thing that defines the scope of days. And so, one of the things that people discuss is what is the scope of foreign intelligence information and how probably should that be interpreted question arc that is the statutory language they are. I want to go to reach one of these because it is important to remind myself what you cant do under section 702. First of all, youre not allowed to target any and come the u. S. Person or not if you know that person is in fact the United States. You also can target a person outside the u. S. That the purpose is to target somebody, to get information outside the u. S. Lets suppose i am communicating. Im in the United States communicating with somebody outside the u. S. That if the government to get my communication, they could use section 702 to do an end run around requirements. Hey lets go acquire what we are talking to because if we do that, we look at john communication as well. Explicitly prohibited under item two. Section 702 by its definition, you are not allowed to go after u. S. Persons. That in no way relieves the applications for u. S. Person. Cspan needs you to speak for the podium. Okay, sorry. Cspan needs me to speak from the podium. Member for cover you are not allowed to require information so even if you are nonus person communicating with each other, section seven of two can be used for that. Finally and obviously incredibly important to you, everything has to be done in a manner consistent with the Fourth Amendment. Those are what you cant do under section 702. What happens is the attorney general and the dni basically provide to the Foreign Intelligence Surveillance Court a certification explaining say that all the requirements of why they want it order to target for acquisition. There is an exception to the thing before. The exigent circumstances and if that is invoked, no later than seven days after that they have to provide the paperwork for the quarter. These two columns on how you can proceed on this. Let me move over so i can see this better. One of the things he talked about a lot is targeting and minimization. Targeting refers to making sure the persons who were targeted to satisfy the requirement for section 702. For example, that they are located outside of the United States and suggested to judicial review by the Foreign Intelligence Surveillance Court. At the targeting besiegers that reject them or accept that. Another phrase you see a lot is minimization. Minimization is again something that can develop by each relevant unit at the Intelligent Community and it also is subject to review by the Foreign Intelligence Surveillance Court. What is interesting is the law doesnt say exactly what the minimization or sutures are. If thats what they must do, what they must satisfy. The details are not laid out here, but what it must do to find here is basically it aims to protect, for example dissemination of not public acquisition and retention in dissemination of nonpublic publicly available. A bold faith is number two. Begin identifying u. S. Person. For also has protections against u. S. Persons. Interestingly, paragraph 3 is evident that a crime. This is the only one that doesnt explicitly have the u. S. Person in it. These are the minimization procedures. So fisk looks at all of this stuff. It will look targeting of the certification by attorney general dni and the minimization seizures and if they pass muster, they can issue an order pursuant to which dni and attorney general ken authorize the collection. This is, if the court finds the certification of all the required element and minimization that the Fourth Amendment to satisfy, the court issues the order approving the acquisition. Thats mechanically how that works. Then what happened is you can compile an electronic communication to provide the government to accomplish the acquisitions. The government would gauge with one of the regular companies that provide services that are the subject of potential acquisition of the government will rehab nurse accompany for having to go. And is also a liability shield as well. A company that receives an order or direct to to perform acquisition and he sued by somebody claiming that their information was acquired without their consent because theres a liability shield associated with that. In terms of oversight, this kind of a host of mechanisms that kind of range from mechanisms in turtle to an element to the Intelligent Community out to congressional committees and beyond. Ahead of each element conducts a review each year. The Inspector General of each element of the Intelligence Community are compliant. Of the these pricier the attorney general assess compliance with respect to targeted minimization or seizures. Pricier the attorney general forces the house and Senate Intelligence and judiciary committee. Senate, house, intelligent and judiciary. One sierra to happen a couple weeks ago, dni publishes a report, basically a transparency report that identifies information included new yorkers come as terms, queries and so on. They do this every year and like i mentioned, a month or so ago they published a report for calendar year 2015. These are examples of the oversight mechanisms that are built into the law. Another oversight or disclosure is the ruling family got good and then published by the director of National Intelligence. Tabler. Com. Maybe if you may have seen this. Ive seen on the record where you can go in download ruling as well as other documents that dni has chosen to publish in relation to section 702. In addition, the companies that received the direct are allowed to do reporting in a complicated set of formulas for exactly what they are and are not allowed to report on how they round the numbers, how precisely they found the numbers and what they report. The provision of the law enabled those companies to report that direction a number of directives amounted to some numbers. So there is kind of like i said a layered set of oversight. So thats the kind of statutory framework and we briefly talked about the operational thing that inevitably happen and sometimes lead to discussion about section 702. Just as the fundamental key point as ive mentioned prohibits targeting u. S. Persons. Nonetheless, its statistically inevitable if you are acting many, many acquisition. If the number gets large enough, even though there was no expressive type to acquire the communications of the u. S. Person specifically on trade statistically that will have been and is sometimes used to identify accidental collections. You will see that term discussed in relation to section 702. Another term you might see if ct which stands for multiple communication transaction or sometimes both the Communication Trend action. Done they connect internet communication from downstream and upstream. Under downstream collection, they required medications to or from a section 702 selector such as an email address. In other words a particular person email address might be the subject of a directive or a selector to get that communication. Also, according to the pc lod, the privacy and Civil Liberties oversight, they wrote in collection, the government, the fbi on behalf of the nsa sends it to a isp that has been served a directive. Then they are compelled to give the communications sent to or from the government. They went on to say it did not include acquisition of telephone calls. Contrast that with upstream collection, from that same privacy report, this is different because the acquisition occurs not with the assistance of the United States isp but those in 72 directive of providers that control the backbone over which medications transit. The backbone are these trunk lines that carry massive amounts of aggregate information from all sorts of Medication Services and thats the portion of the network which is addressed with upstream collection. From the same report, upstream collection includes telephone calls and internet medications. Those were two types of things. And then a statistic, i dont know how current it is anymore but this is the only one im aware thats publicly available, there was an october 11 order and in that order, the judge wrote that there upstream collection constitutes only 9 of the total Internet Communications beinacquired. At least, as of the time when the data that this judge was reviewing wrote this order, then the overwhelming majority of the internet medications were not on the upstream side. Another thing you will see and probably have seen often is the about verses two from distinction. It can include about and also to from communications. Could be one that includes the targeted email address even though the email is between two persons who are not themselves targets. So if i am not a target and im sending an email to someone who is also not a target and in the email i say please reach out to xyz, his or her email address and it turns out