Transcripts For CSPAN3 Discussion On Internet Privacy And Su

Now, in a probably correctly noted that there are some people who are deterred by this age of massive surveillance, and then it adversely impacts their speech. Im in favor of, a litigate a lot on this space, i get it. The question is people have unreasonable fear about something that view should not be embellished. You could be and over come good for you despite some risk. So i, no doubt, that there is some self sensors, but thats not reasonable people comfortable for that degree of government. Thats a funny thing to me and i do a lot of regulatory law. The government is far far more able to hurt individuals and companies in spaces that have nothing to do with terrorisms uncovering alleged health care fraud. Security violations, i mean, im not saying i certainly administrations im not an antigovernment nut. It cannot be clumsy. The government can be oppressive individual officials and vindictive. Thats why we have laws state level who have done it. Far worse things believe, me, happening in the other spaces were not touching today. The terrorism and National Security that is good. Im in favor bolstering a sign a piece of paper attesting but theyve been briefed. We dont have memory failures like some people had. If youre not saying something now. That would be a good thing. Its good, there are no problems fundamentally here. One final point which is both, you know, matter of policy and law. Judiciary should be more involved or respect lending is makes no sense essentially signing off on war in applications, thats it. War in commission to investigate this or some other commission to investigate that so you can have a chief justice participating in its capacity in some policy exercise. Set on some commission some day. Thats not what it does. I would submit to you that even today its probably operating social remit and they past judgments on problematic components of national surveillance. Approving warrants. And the constitutional way, but in general, it was very smart, having the judiciary participate in something that aint judicial doesnt do any good. It gives cover to the two political branches, only diffuses responsibility and accountability of robber have the executive, the accountable for what it does, congress be accountable for what it oversees and it comes from both critics of surveillance, collection as well as support. Who cares comprised of federal judges if you put a judges in there will make it better t. Bottom line view, no fundamental problem. Its fundamentally fine in this space and we should have a serious Education Campaign that tells people one final point, what i dont understand for the life of me, we live in the age where people almost happy to expose the innermost thoughts and more private observations on facebook and twitter and this and that to a cast not only to closest friend, but hundreds of people who submit all sorts of information to commercial entities, you know, to get credit and goods and services and theres other benefits, okay. Theres some regulation there and im not saying, but do it there are some people that go live in the woods. Why are people much more comfortable doing all of that in a situation thats a lot less oversight and regulation and a lot more opportunity for abuse. There are definitely abuses every time the data breaches and what not. Who are spying on their girlfriend or wives. Why is this different, now the answer, of course, would be the government can be do worse things to you if you learn something local walmart. You have to be reasonable. Its a matter of reason. The government could do worse things but have they. Whats the pathway the answer is zero. Thank you. The answer is zero. It respected conservative who injunctions against the nsas indiscriminate Surveillance Program because he concluded that the mere existence of this program, even without independent abuses of its intended purposes, the mere existence in use of it against all of us innocent citizens who are trying to communicate on line was, itself, an abuse of the constitution, as he sard, i cannot imagine a more invasion than this hightech collection and retention of personal data on virtually every single citizen without prior judicial approval. Surely such a program infringes that theyre trying in the Fourth Amendment. I have little doubt that the author of our constitution, James Madison and for anybody who is a student of American History and constitutional history, we know that above all else what the framers detested about the british rule and british tierney was the socalled ritz of general assistants that gave precisely purported to authorize officials to engage in inchris anymore gnat survey out by the standards of the nsa. This would be rather trivial, right, invading your physical space and rummaging through your papers as many people have commented, James Madison and others would have rolled over in their graves if they could imagine, the infinitely more intrusive pervasive indiscriminate surveillance to which all of us are subject every single communication, every single thought, every single association, financial transaction, Health Information and the full treasure troef of information about us that has been subject to the indiscriminate surveillance that judge leon found fit to find unconstitutional. However, there has also been specific abuse, even beyond the secretive, at best, deceptive, at worst, existence of the program as david does, but many defenders of that program do, which is to assert that it was subject to oversight by other branches of government, how meaningful is that oversight, given the shred of secrecy and dishonesty in which it was cloaked. The most notorious example of which being director of National Intelligence, James Clapper, testifying before congress in what he later admitted was a boldface lie, that this program was not going forward. He first retracted and apologized by saying, well, that was the least untruthful answer i could give later on he retracted even further and apologized for having lied. So there cannot be meaningful oversight without truthful information from one of the pieces that you wrote, recently. That for the sake of making congress itself accountable and helping congress to make the surveillance and the executive Branch Surveillance authorities accountable to we, the people, there should be much more information sharing back and forth about this. In terms of the supposed control that was being imposed by this super secret onesided for an intelligent surveillance court. That court, itself is hampered by the one cited nature of the proceedings and even the limited amount of checks that that court which has been very criticized for being, essentially, a rubber stamp for every request for surveillance authority, its been heavily criticized because it is so strongly oriented in terms of the judges who have been appointed to it, people with prosecutor yal and Law Enforcement background, so its especially telling, that even if that court, without hearing advocates of privacy and civil liberties, even without having judges who have backgrounds of advocating private and civil liberties, when even that court has strongly critiqued and sanctioned the nsa for not to put two fine a point on it, lied to the court about what it was doing. Let me quote a couple rulings by that have now come to light as a result of snowdens disclose sures that led to freedom of information act efforts by the aclu and others. So first, im going to quote a 2009 ruling for this judge reggie walton. The court had imposed some trivial, i mean, not at all sufficient by the standards that i laid out, but some minimumization procedures to, again, the bit the indiscriminate sweeping nature of its surveillance and here is what judge walton said. He said that nsa had engaged in systematic noncompliance with fiscal or minimumization procedures over the past three years going back to the inception, the very inception of the program in 2006 and had also repeatedly made misrepresentations and inaccurate statements about the program to the judges. He imposed a six month sanction, nonetheless, the record of failure to comply even with the limited controls that were imposed by the court persisted so that brings us to another angry order from a judge in this case, presiding judge john bates in october 2011. He found that the government had misrepresented the scope of its targeting of internet communications. He said, the court is troubled that this is the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. So, so much for the lack of abuse supposedly so much for the effective oversight supposedly. Now, to turn from an area where we strongly disagree to an area where we disagree, ill turn to where we agree, at least in part. To the first point that david made and that is the seriousness of the threat to National Security that this country faces. I take those threats extremely seriously as a practical matter i think it is noteworthy, however, that going back to 2013 our top National Security officials have emphasized as the number one the number one National Security threat that my country faces is not terrorism, serious as that is, but it is it is in fact threats to cyber security, so so signer threats reporting on the testimony that director of National Intelligence James Clapper provided to congress on the annual worldwide threat assessment of the u. S. Intelligence community. And he was accompanied in the congressional hearings with other top current officials of the intelligence world and they deemed Cyber Threats as the top global threat facing the United States, which is exactly why you see this con ste lags of past and current National Security, Counter Intelligence and defense experts saying that if we allow the government to get back doors to our communications to engage access. In the program that violates the more core constitutional principles, not to mention legal statutes and congressional statutes i should mention as well as to judge leon having repeatedly held that the pass nsa program violated the Fourth Amendment to the constitution in the. Violated congresss statute, the relevant of the pray tree yot act. Even members of the congress. Have said, it was never our intent. Certainly the language doesnt say it and it was never our intent to authorize this kind of indiscriminate surveillance, double wham and violating the u. S. Constitution but beyond those abuses that consists of violation of our rights, we also have a problem, lack of government competence to protect us from from hackers, from cyber criminals, from even cyber terrorists, im concerned on a level of competence, as well. Would we call this abuse, government to act in incompetently or negligently. It certainly bothers me whatever label you put on it. Just in 2015 alone the federal office of Personnel Management was hacked to the tune of 22 million personal records. Were talking about just one year last calendar year, hackers released beyond government the private sector has also been vulnerable here and made all of us vulnerable, hackers released 32 million accounts from ashley medicine, a site none of you are familiar with, let me explain, facilitates adultery and hackers also infiltrated anthem. Vulnerable as a result of ive got to wrap it up, before the government engaged surveillance are to strip. I would like to ask him what standard he would advocate instead . Surely, hes not going to give the government absolutely free pass with no justification at all to engage in violations of both privacy and security. Thank you. That the Fourth Amendment does not mean what some of our it may be used for prosecutor yal purposes. But aside from that. Its plenty of ladies and gentlemen dealing with, you know, side doctrine, if you put out information in the public domain, you have no reasonable expectation, you may have expectation of privacy. When walked by and sees the plant, he does not need a warrant, its in plain view, okay. And the same thing happens, by the way, when how much stuff gets acquired in other context. Get in and get all of your emails and Service Providers, no now. Lots more acquisition by this information, because, by the way, if you entrust information the Service Provider goes up. It aint legitimate expectation, the cases are talk dit dated back and forth. But something you need to realize, again, there are many years Much Tea Party person than i am. Its a clumsy beast. It does most things not very well. Its referring to most opinions. The judge basically participating in the interagency program. Theyre not oracles theyre expressing their view. Theyre very complicated. I use to deal with some of that. They attacks the minds of most brilliant on most sides. People disagree about it. The fact that this judges disagree about whether or not, you know, nsa complied with some minimumization water or some acquisition order, aint, im not saying that they were wrong, they may well be right. I bet you, but it aint unusual. Its not a sign of some horrible practices going on. Okay. Not mentioned anybody who was punished incorrectly. Who suffered. Okay. Theres no such examples, they dont exist. And, again, compared with the normal regimen of our great government, which i love, and all administrations doing things they can do, the National Security area is pretty done clean and pretty vile. And if you dont like that then you should, all guys, ladies support tea party and donald trump and turn everything upside down because, believe me they fda, vacuum cleans records from Pharma Companies with a lot less using administrative subpoenas with a lot less oversight. He does it to everybody. If you dont like this. The essence of Reasonable Risk assessment is to look at things across the board. Can i just say, i dont like this. There are three things that present greater danger, thats okay with me. The final thing about the threat, look, theres no connection, i know of, when you technical person i heard tells me in simple terms between cyber threat and the kind of surveillance im talking about. Its a classical straw man. I think the government should harden up as well as possible against cyber penetration, but have nothing to do with it. Thats not an issue. And the final point is this, i dont care if terrorism is number one or two. Its a huge fret. And the only game in town, ladies and gentlemen, we have a surveillance, we do not have as cold war. Impossible any intelligent professional will talk about why, believe me they dont defect, unfortunately, they guys defecting from isis. They dont seem to be that driven by money and they believe really bad stuff. They believe in it. We dont have that. By the way, we dont interrogate folks much these days at all. Thats not politically correct no matter what the standards are. So the only damn thing we have to get at them is surveillance. If we dont have that, we have nothing, minus well wait until we get hit with the next time, the next time and the next time. Theres no problem. Theres no crisis. Ive heard nothing but suggest that suggest otherwise, thank you. I know i dont get a response. I would like to give david to honor his position. Got the fringe benefit of having a picture of president obama. Its a little tent that shows president obama with a headphone and listening device thumbs up saying, nsa approved and theyre lemon flavored eves drops. So enjoy. Think of me when you suck on them, david. I will put it on my desk. Well, im sure everyone has enjoyed this and learned as much of this, than i have. I have been looking forward to this day for a long time and ive learned a great deal we dont have a lot of time. Im going to take the moderators prerogative and answer the first question, which goes as follows. If i were a martian and i just landed in the United States and i wanted to find out about anything and i had some object to the form in additi omissio how the world works. I dont think i will go to the government. I will go to the private companies. They survey yal. Collect information they retain information, they use that information. They know far more about practically any of us than, im sure, the federal government does. That what the internet has done has changed one of the many things that its done, is its changed the way information is used and its dave, as you mentioned several times, the government is very clumsy, theyre not very good at a lot of this stuff. The private sector is really, really good at that. And they probably if they wanted to monitor and youve told them, well, tell us who has been going to different rifle ranges and different things, im sure somebody knows that. Could you and, yet, there isnt an entirely different role in government as both of you have said, the government is different from the private company or a private entity and, yet, i think the relative scope and control of information that the government says. They probably have far more information about individuals than the private sector does. Today, i think its vastly and i just wonder, how does that enter into thinking about surveillance and can i go . Youre making my point. We all live in a fish bowl when its not comfortable, lets be recollusive and running to the people do not assess a given concern in the con tin yum. Yes, i worry about this threat, which means isnt very high given the way we live. Its not even high in the private surveillance company, you can go and if youre knowledgeable and young person, in particular, you can get more information about any one of us today than, you know, most of it could realize. You can get more mortgage documents. You can get, you know, a picture of your house. You can its all there. Since we accept that, we have to look at what the government can do as part of same broad narrative of our tolerance or the lack of total privacy. And then i understand that the government can do worse things to do, but not necessarily, theres nothing to worry about in this sp