Transcripts For CSPAN2 Matt Olson PORTION 20170601 : vimarsa

If you were general counsel, there is some date after which you say hey, were going to have this january 1 and we have to stop winding this down and making contingency plans, and those operational decisions are enormously Time Investments for multiple agencies. Im obviously not asking you for anything sensitive, but what should we think of as that date. What is the date after which the agencies have to start thinking about, hey we dont know this is happening, we need to start making technical changes, winding programs down, having contingency planning. That is a great point. People dont actually realize how disruptive these can be to planning. Its not really an option to pull the plug at midnight. Go back to title i. Right, you need to start planning for this in advance. I dont know the date. I would expect there are people thinking about it now, the creative folks at nfa and d. O. J. And fbi, particularly in the legal office. What do we need to be planning for in case this does expire. At the same time, i would have to go back and read carefully and im sure there are folks that know this, but there are ways to think about the statute and the authorizations that have been granted that might be allow for there to be continued collection. I would have to really carefully read it to see, but i think there are provisions that would allow for that. I think thats right. I think what actually expires is the authority to seek new order. I think you could, if you went in on the right date in december and the court authorized in order december 31, you can imagine that order having a year of life for six months of life beyond the expiration of the statute, but that assumes that you know what the court is going to do. That said, even with that, you are still having to deal with providers who arent going to be too keen about an expired law and you are trying to convince them that they are covered in complying. Is kind of a nightmare scenario. Before we turn to what potential compromises look like in your judgment, im interested in howard controversial, within the area and what youve described today is. There is a national debate, within the community is there any disagreement that this would be a disaster if this authority lapsed . I hate to speak for the entire community, but i really dont think so. I dont know of an issue or authority in which there is so much consensus. My own sense is that there is really no dissent within the community about the value of 702. , and that its wellregulated. Again, compared to a lot of other authorities in 2008 this was tasked with a lot of optimize builtin on order to address concerns around privacy. Okay, so now weve got the Community Wants a clean read off, nothing in congress is clean these days, and my assumption is, just as with the freedom act, there is going to have to be some compromises of some kind to get it done, if only to give people of fait facesaving opportunity to vote for something or not hold up. The question is whats the realistic latitude for compromise . What could you shave off of 702 without damaging the underlying authority . The place i would look to answer that question is reporting and transparency, to look for ways in which the government can provide more information about how to use the authority, and i would try to hold the line on the operation aspect of it. That is sort of reading the debate a bit down the road and ill be specific because i know youre going to ask me and i can let me get away with transparency as a general answer, but i think the issue that does strike me as one that goes to the heart of some of the concern is this notion of incidental collection and for folks in the room, the idea that when you are targeting someone outside the United States under 702 you may collect the other side of that communication and that could be a u. S. Citizen in the United States so you not targeting that person, but you collect that end of the communication. That is what we typically refer to as incidental collection. The government has resisted how often that happens when a u. S. Person is caught up in that. Do you think the resistance is a function, they describe it as extremely difficult to describe the number of people. By the way im pretty sure i have been incidentally collected on and ive written about that. Is your impression that the fundamental resistance to releasing a number is that its just very hard to calculate or is there something more to it than that . Theres a couple reasons youve heard. Youve heard its hard to calculate and youve heard its actually counter to the interest of protecting privacy because it would require the government to go in and figure out is this person a u. S. Person and dig in further. I think technically would be hard, its a resource issue but i do think given the concern around this idea, maybe ill talk about this but theres a sense that this is counter to what the statute is meant to authorize which is not true. Ill explain what i mean. In other words, the idea that you will collect one end of the United States as a consequence, theres a sense thats inconsistent with the purpose of the statute and therefore there should be more public reporting about how often that happens. I think thats just wrong. That issue was debated in 2007 and 2008 and congress had a lot of opportunities to limit that statute to prevent exactly that and they pass them all up and they did it intentionally. Thats kind of what i was going to say. I think thats a myth about the statute when somebody will says foreign intelligence when really all you care about is overseas intelligence or something that only involves someone overseas when in fact speaking to someone who was the recipient of the information, obviously we were extremely interested in who that person was in the United States was caught up indicating with somebody overseas in yemen or pakistan that was critical. There procedures of what you do with that information, but that was always the purpose of the statute to identify the person in the United States. So the incident in which im fairly certain i was the subject of incidental collection involves a situation in which i got a call from the fbi warning that i was a Cyber Security target of some actor. The context of the conversation was opaque enough that i dont think it was a simple domestic criminal matter. It wasnt like identity theft. My assumption was there was some communication, and may or may not be 702 in which information about me was a collected on somebodys system overseas, may be domestically but i suspect overseas and i got a call to warn me. We have this assumption that if you are a subject of incidental collection, thats a reflection of the Civil Liberties violation. To the extent that this happened, and im pretty sure it did, i consider that the protection of my Civil Liberties, not the other way around. I wonder if the accidental collection issue assumes a civil liberty violation and lots of situations where that would not be a reasonable up assumption and sometimes their protective and sometimes its just neutral. In your situation, i completely agree with you. I do think a common way in which it matters is the fact that the incidental collection didnt train their focus on the purpose inside the United States and they are now potential target of fbi scrutiny. Thats sort of the terrorism scenario, but so folks know, what happens is the government and the fbi is to obtain a title i probable cause on the person in the United States. The law has provision after provision that inhibits them from trying to focus on the purpose in the United States without this reverse targeting which is each possible permutation that you can imagine in the statute itself. Lets take a couple audience questions. We have about ten more minutes. With a microphone and introduce yourself. I am liza. There may be a misperception among some people that 702 was somehow to authorize incidental collection. One of the main purposes of the statute was so that communications between foreigners and americans could be picked up without one or without the order so that the government could look and see which americans they wanted to focus on. I just want to point out that there is a bit of attention between what you just said that its critical for us to know who this american is and to say that we wanted to know who the american was on the other side. I point that out because i think there is a lot of misunderstanding. With that term, it allows the government to say the statute is only, the interest is only in the foreigners, and thats clearly not the case. To their point, i think its important to be precise. Im not in the government now, but in terms of my own understanding and how we thought about it was we were trying to figure out who in the United States could be a terrorist and one of the great ways to do that is to see who might be communicating with someone overseas. We are targeting, we are targeting someone who is not the vast bulk of whats collected when you are targeting someone in yemen or pakistan who is not the u. S. Person are others in those areas were not u. S. Person, but every once in a while i would say its a piece of critically important intelligence is an instance where coverage of an al qaeda career in pakistan when that person was communicating in aurora colorado who was asking for bomb making and it was only through 702 that that person was identified. Without that, i think its a fair conclusion that it wouldve been very hard, if not impossible to identify him at the time he was identified which was shortly before he traveled to new york in order to carry out a plot to bomb the new york subway. i actually dont see where the tension is. It seems to me that section 702, one of the virtues of it in one of the reasons i felt that the time in 2007 in 2008 was that it actually told you very clearly exactly what it did and didnt authorize. Its remarkably non statute and the staff wasnt debated and, look, i agree with you. People were upfront about it. I wonder the term incidental has this, people have this idea that its deceptive and it doesnt seem deceptive to me at all. It just means youre not the target. Its illegal. We all know what they mean but they carry connotations but thats all right i dont want to take up your time. Other questions . Matt, you mentioned earlier that trumps the shows this between the white house and Intelligence Community how has this affected the Intelligence Community . In terms of whatever. Lets get the last question one more and then, matt, you will take the final word. Jessica. Yesterday it was reported that the government issued subpoenas requesting information about unmasking requests made by former Obama Administration officials. Can you talk about, is that type of request something that congress is usually have the authority to request without subpoenas or would he have had to issued a subpoena to get that information . Thats an interesting question. Ill take that one and then your second. I didnt see the report but based on what you said, it doesnt strike me out of the ordinary, certainly, that the chairman of the House Intelligence Committee would have the ability and the relationship of the Intelligence Committee to obtain information about unmasking requests which, for everyones purpose, the general rule is to mask or reject the name of a us person or identifying information about us persons who are part of intelligence reporting but you can request to understand the importance that the name be unmasked or identified. Its pretty routine for that to happen. Its a protective measure but in answer to your question it strikes me as unusual for there to be a subpoena for the information that you described. My own experience with House Intelligence Committee and with senate is that we were up there all the time on a weekly basis, multiple level staff members, talking about issues that were well within their oversight and this would be an issue within the purview of their oversight. It strikes me out of the ordinary. The broader question about the Intelligence Community, i do worry about the morale of the Intelligence Community. There are folks here who are current members, i am not, but i think the statements directly from the president that appear to denigrate the Intelligence Community or to dismiss the information has been provided on one level has an impact on the workforce, it has to. It doesnt mean my sense is from folks that i am talking to that theres committed to doing their job but over time you might see morale decline or the other thing that i mentioned it to others i was always struck i would go in the morning get to the reading and there would be this incredibly talented group of people who are mostly younger who has been up since 3 00 a. M. In the morning to prepare everything and they could have done a lot of different things. They couldve gone to wall street, they couldve gone to silicon valley, but they wanted to file a kind of. Thats a pretty incredible and if we dont protect that as good stewards of that sense of mission then you can take that for granted. Secondly, i think, beyond the workforce is the more subsidence concern where you have people providing critically Important Information about our National Security and our Foreign Policy interests and that information is not being trusted and acted upon by the primary consumer, the president and theres reason to be concerned about whether or not policies are based in fact and based on the information that we spent a lot of time and effort obtaining in order to ensure that we are making the best possible policies. Thats a concern as well. Matt olson, thank you for joining us. [applause] thank you everybody. I want to make a couple quick in athens. Will take a quick break and start again at 2 30. Our overflow room has a tv that works all the time except for today for some reason. Given that theres a lot of Seats Available if some people want to come in and switch in better that would be appreciated. Will start again at