Making the best possible policy decisions and i think thats a concern as well. Matt olson, thanks very much for joining us. Thanks, everybody. Thank you. [ applause ] this is a recent discussion held by Stanford UniversitysHoover Institution on the future of section 702 of the foreign Intelligence Surveillance act. It gives the Government Authority to monitor Internet Activity on nonu. S. Citizens to gather foreign intelligence. Its said to expire in december unless congress renews it. This panel is about an hour. Were about to get started again. Theres still a lot of seats in the front too, so i encourage people to fill in as much as possible. Im russell walden, the senior manager for external affairs here at the Hoover Institution. We will focus on the law and Civil Liberties, section 702. Im going to do a very brief introduction of our panel and turn it over to our moderator. I start with julian sanchez, a serve fellow at the cato institute. Alex abdo is the senior attorney with columbia universitys First Amendment institute. Formally a senior on the aclu where he has argued cases federal Court Related to nsa surveillance. Next we have susan hen asy. Shes a fellow at the Brookings Institution and the managing editor of law fair and previously served at the National Security agency. Closing that out we have the general counsel with the federal bureau of investigation, thats james baker. Our moderator for this session is shane harris who is a Senior Writer on intelligence and National Security and Cyber Securityrelated issues at the wall street journal. He is also author of a fantastic book on Cyber Security issues titled war. With that ill turn it over to shane. Thanks, everybody. Can you hear us okay . Were here for a nice cozy panel this afternoon. Thanks very much for having us here. Ill say personally as a journalist covering section 702 and related issues, the Civil Liberties questions have been the most top of mind for certainly most americans and my readers its been top of mine so im pleased to moderate this panel and we have a terrific group of people up here. Im going to talk for the first 45 minutes or so and then were going to open it up to q a. Please, we want to encourage dialogue with all of you so please think about questions that you want to ask and well get to as many as we can towards the end. I actually want to start with jim baker. Not to put you in the spotlight or anything. I think you may be the most senior representative of a Government Agency so you get to stand in for the interest of Law Enforcement in National Security in this. I want to start with a basic first order question which is, can you just explain to us in plain english why section 702 authorities are important for the work that the fbi is doing. What is the baseline of why this is an important capability that i presume you will say needs to be reauthorized . Thank you, and thank you to the Hoover Institution for having us here. 702 is vital to the fbi and to the Intelligence Community. It provides us with a wide range of foreign intelligence information, especially including actionable intelligence stuff that we can actually do something about. So thats critically important for us. It is something that the fbi takes in and combines with other information that we have lawfully acquired just as we lawfully acquire the 702 information. We pull that together in order to connect the dots. It was one of the key findings of the 9 11 commission. It tells us that the government did not connect the dots. It combines 702 information with all the other information that we have and we check our databases against it and try to figure out when we get a tip, a lead, information from a variety of different sources what do we have in our existing holdings about a particular matter, a person, an email address, that kind of thing. So we use that to guide our investigations to ferret out what we need to focus on, what the threats are and move forward. Its vital to our day to day operations. Well get to this im sure but i think you would argue that without it what would it look like without it . We could talk about how im not going to propose other legal methods that we could if it was taken away today what does the landscape look like for the fbi . If its completely taken away, then the fbi is losing a vital source of collection on very important targets. We try to be very focused at the fbi. The fbi is very focused on which target it asks the Intelligence Community to target or what selectors we ask the community to target because, first of all, we have to make sure that any of our selectors are associated with a full investigation, meaning the highest level of predication that we have in order to open an investigation. And so if we were to lose it all together, we would lose vital collection on a range of very important targets. It would also deprive us of dots. It would deprive us of lead information, of an ability to connect people to threats, connect threats to particular individuals, and ferret out exactly whats going on. Susan, recently the nsa has amended some things, particularly the collection of socalled about information. Walk us through a little bit of what that means and what you think the practical reasons for doing that were and what the effect of that may have been. Im nervous to say this, i see some familiar former colleagues faces. Hopefully they wont shake their hands if im getting it wrong. Right, so this is a highly publicized decision that the nsa announced i think about a month ago, a few weeks ago at this point so essentially voluntarily end whats known as about collections. Under 702 there are two forms of collection, upstream and downstream. Within downstream theres only two and from collection but with an upstream theres another category about collection. Upstream accounts for about 10 of 702 collection and about collection within that is. 02 . The former Deputy Director of nsa wrote a very comprehensive paper on this and i think those are the statistics that he cited. Nsa announced that following a number of compliance incidents they decided to voluntarily end this practice. This set off a series of controversies, first because nsa had in the past represented that this was important and vital and necessary, and so there was some criticism that that was somehow not an accurate representation because now they didnt need it anymore. I dont think that thats quite the right way to view this. We know about collection does pose a particular heightened risk of collecting Domestic Communications, Domestic Communications that happen to mention the plantarticular targa u. S. Entity. So american airlines, you can imagine the particular utility of that form of collection. In recognition of those heightened risks, there were additional safeguards created in order to try and mitigate against the risks. There was a series of inadvertent compliance incidents. These occur, they happen. Theyre very serious, the fact that theyre accidental doesnt minimize their significance, although it is quite relevant to the current discussion. Those were selfreported to the court so were seeing exactly the process that we want to see, compliances being detected, being selfreported. Then a determination was made, but rather than invest the cost of coming into compliance, doing the things that were going to be necessary to ensure those compliances wouldnt occur again moving forward, it was better on a cost benefit analysis to eliminate this form of collection. Nsa had said that they are not able to eliminate this form of collection without also losing other important information. So theyre saying that there is a cost here. This is about risk management, so again this is a process that we want to be seeing. We dont want intelligence agencies to take a collect it all, get everything we can. We want this kind of voluntary and ongoing assessment because this is such a critical area. That said, i think its a little bit of an illustration of some of the potential perils here. Whenever we evaluate the difference of nsa saying it was a Necessary Program and worth it previously and in this instance deciding to no longer go forward with it, in examining the cost benefit analysis, as we add costs, eventually costs will outweigh the benefits. We know thats true for everything. Even if you take those core vital parts of the program that matt olson was talking about, if we put enough cost there, that will outweigh. So i think this is why in this instance i think it was a prudent decision, the appropriate judgment, but i dont think that we should sort of take for granted the notions that there arent real costs are and there arent costs that we put on additional reporting and technical requirements. One question on the compliance incident. How do we know they were accidental and inadvertent . Because there was a declassified court decision. While it was extremely critical of the nsa on a series of metrics, it was quite clear that it had no indication that there was any sort of intentional m l malfeasance here. So, we have a program that the Intelligence Community says is vital, responsible for a large amount of intelligence, but it appears that the Intelligence Community is willing to i guess they would see it as amend the program when they feel that its made mistakes or its gone too far. When you look at this amendment about collection, is that satisfying to you as a Civil Liberties perspective or as susan said, responsible for a negative jabl amount of information . I think its hard to know exactly what to make of it given that the nsa hasnt disavowed that they will in the future reseek this authority. Th theyve eliminated this portion of it but there are a lot of technical questions that go along with that. And it raises i think a different question. I have a slightly different take on what it says about the nsas prior representations relating to the vitality of this part of the program through section 702 more broadly. When the pclb was examining 702 Civil Liberties oversight board. Right. It focused pretty heavily on about collection because that was one of the more controversial forms of collection. Based on representations made to that board by the nsa, they issued reports that said that it was a technical necessity to conduct about surveillance in order to be comprehensive and even to from surveillance and they made it sound vital. While i agree with susan that at the end of the day its a question of cost benefit analysis, the nsas previous representations made it sound as though the benefits were too high and the costs of losing it were too high to ever consider losing that. And now almost on a dime they flip and eliminate that authority. But again, its hard to know what to make of it given that they havent disavowed to seek it again in the future. Susans right to point out that the reason we know about the compliance issues with it is from this court order. The only reason why the court order knew what to publish about these compliance incidents is it was selfreported by the government. We have the governments representation about the scope of the problem and whether it was accidental or not but we certainly dont have, i dont think, a full adversarial sense of the story. Does it feel that this modification which was obviously portrayed as a very big concession is actually just a tone token gesture . You say its hard to know but what does your gut tell you . My guess cost, the kind of present cost to bringing the program into compliance with what it was wanted to be, they decides youre too high at the moment and thats preserving flexibility. If Congress Suggests codifying it, anding 702 to prevent the nsa will start about my guess is nsa will oh posts that. Youre one of the better explainers of not just intelligence policy and surveillance law but you articulate the Civil Liberties component of this as well. What are we really worried about here . Were hearing about a program that has huge compliances. As jim baker said, its very targeted, very focused. From your perspective right now, headed toward the end of the year and the question of reauthorized this, what top of mind Civil Liberties issues you think people in this room in particular are going to have to confront . Sure. The central concern always with intelligence authorities is the political misuse of intelligence thats gathered. Its a somewhat different concerns from primarily lies in the criminal surveillance text. And two halves to that. One is an insufficiently unaccountable Intelligence Community using the data thats collected but somewhat kark ka churs now of j. Edgar hoover. Yanking the leash on his nominal overseers, using the power of the information hes amassed about them. The other is the insufficient autonomous intelligence agencies, thats fine, loyalists to the Administration Tower using it to get the tools of evidence. One of the reasons i think its raised as a special concern the scale is magnified so dramatically. If you think back to the kind of intelligence scandal that was exposed in the 60s and 70s, these involved first labor intensive deliberate targeting of people like Martin Luther king and civil rights leaders and also because it involves signatory for that kind of abuse that was after the fact, something you were likely to notice. I think at one point in the 70s, there had been a decadelong wiretap. They were saying, what is it there for . So at least shut that down. One reason its so discerning is youre talking about every year, between 90, hundred,000 persons have their information targeted for interception. And then being stored for years at a time. The concern isnt just will there be improper targeting of someone and then to prays back if that information is going to be used, do you trust that this sweeping kind of black hole aperture, not only is he going to be improperly targeted from the inception but wont be properly used after the fact. Especially when you have these kind of endemic compliance issues, that is, when theres a formal procedure designed to block access are routinely being ignored. That seems to be the case years after the fact. Its very difficult under those circumstances to detect abuses when they do occur. The abuse part under circumstances where you got that database is about what someone knows when they leave with that information and what they do with it after they leave the office. And thats the sort of thing that after the fact is extremely difficult to track. The issue of a reprieve with a much diminished ability to detect it when it happens. Back over to joe and suzann on this particular point. Youre raising the issue of clients routinely being ignored. I think its been the fear of many people on the Civil Liberties side that yes, you have this extensive, exhaustive, some might say Compliance Regime but there is a tendency to ignore. Is this routinely being ignored . Is that an unfair characterization to you . Nobody ignores the policies and laws. Thats not the culture certainly of the fbi. Thats not the way we operate. Thats not the way we manage. Thats not the way we lead and people are expected to comply with the law and comply with directives and for the rules basically. People make mistakes. Were a human enterprise involving complex technology, so tell me where else in society there are not mistakes involving humans and technology. Right, so the key is that there are multiple overlapping layers of compliance run by a variety of different folks, so for the fib, right, we have the department of justice. We have the odni, the Inspector General department of justice, fisa court obviously, most importantly and we have kaurngs conducting oversight, having hearings. Staff members come and get briefed and so on. There are multiple levels of oversight that are there to prevent exactly what julian is worried about. I understand why people are worried about it. Whenever the government does anything with respect to the collection of communications regarding americans, people should focus on,000. People should think about that and the American People should make sure that there are adequate protection in place and that there are the right people running these organizations. So thats true. What i would say is its just not how we plate. Mistakes are made. We try to identify them and figure out what went wrong and correct them. Yes, so i do think its a tremendously unfair sort of characterization certainly of the current sort of discussion line, so the entire set of rules that were debating right now are designed to prevent exactly the kind of abuses as julian describes, recognizing the seriousness and the gravity of those historical abuses, right, this is part of the reason the laws were passed in the first place. So the first i think sort of mischaracterization is the notions that there are all these citizens outside the foreign citizens and United States sbhejs committee are just willynilly. While its not a constitutional question theres something inherently wrong about that. This takes place for an intelligence purpose. Its highly articulated. This is not a warrantless business. Its sort of a modified requirement because of the operational equities. Its not 90,000, 100,000, you know, what the number that is those are collected for a purpose, and then for important purposes and purposes that congress and the courts and the executive branch all recognize and agree