And brief introduction of our first speaker. Im mike franc, director of the washington, d. C. Programs office for the hoover institution. Welcome to sunrise or sunset, the future of section 702, the foreign Intelligence Surveillance act. Our first speaker will be john villasenor, who is a visiting fellow here at the hoover institution. He wears a number of hats. Hes also an affiliate at Stanford Center for International Security and cooperation. Hes a professor at ucla where he holds appointments in schools of engineering, public affairs, and governance. Hes also a visiting professor in the ucla school of law. His research focuses on the intersection of technology, policy, business law, and the wider ramifications of key technological trends and developments. Hes testified before congress, most recently on drones, privacy, and intellectual property. John is going to go through the basics of section 702, sort of like a 101 introduction to it, and that will set up the rest of our program today. John, welcome. Thank you very much. Thank you all for coming today. So i realize theres probably probably some of the countrys top experts on section 702 in the room. If youre one of those people, you will learn nothing in the next 25 or 30 minutes. But the goal of this portion of the talk is to make sure that were all sort of starting from the same foundation. Im not going to argue in favor or against any of the provisions of section 702. Im simply going to lay out what it is so were all starting from the same place. My understanding is programmatically this will go to 12 45, then weve got lunch for you and well go back to the remainder of the program. Section 702 is part section 7 of fisa. It allows Monitoring Communications of persons other than u. S. Persons who are reasonably believed to be outside the United States to acquire foreign intelligence information. Those are the three key requirements which relate to section 702. What im going to do in this presentation is give an Historical Context, talk about the act of 2008 which teed up the discussion theyre having this year in congress, and go through the highlights, key points of section 702. Apologies for quality, i downloaded this from this is scanned 1978 legislation, but this is the original fisa. Fisa was originatlly enacted in 1978 to authorize surveillance for foreign intelligence purposes. It was directed texclusively at foreign powers. Another feature from the 78 legislation is there had to be no likelihood that the surveillance would contain communication in which a u. S. Person is a party. From the earliest days of fisa we see this intention towards not interception u. S. Persons communications if possible. The other thing notable in the original fisa is you see the creation of the foreign Intelligence Surveillance court. The chief justice shall publicly designate seven, today we had 11, that was increased to 11 under the patriot act of 2001. The foreign Intelligence Surveillance court was created under 1978 fisa. That same law also created the review, the foreign Intelligence Surveillance court review, which was very rarely used, so its the appeal venue from fisc, but it has been used in several key rulings. That framework, even though section 702, in fact title vii didnt exist, that framework dates from the original enactment of fisa. Unsurprisingly for legislation that was originally put on the books in 1978, at times over the years, here are some of the amendments that at least i was able to find. Im going to give specific attention to some of these latter ones here, those latter amendments are the ones which created the section 702 that we have today. So a precursor to title vii, section 702, was something called the protect america act of 2007. It was enacted in august of 2007. And this was specifically here is the first time we see language like what we have in section 702 today. Having dni and the attorney general authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States. This protect america act of 2007 had a sunset built into it. And it basically was automatically going to expire 180 days after enactment, which it was enacted in august of 2007. So it then expired at sunset in february of 2008. So from february 2008 onward, there was this discussion in congress about what to do. And then finally, a couple of months later, in july of 2008, we have the passage into law of the fisa amendments act of 2008, which is the act that created the title vii that we have today. So this was the first time we had that in the form essentially the way we have it today. This is the legislation creating title vii. And youll notice here, its got a sunset, and actually im going to go back here. As originally created, it sunset on december 31st, 2012, so a little over four years after the original enactment. So the day before it was going to expire, so on december 30th, 2012, there was a reauthorization. It would be nice to think that in 2017, this will get resolved before december 30th, 2017. But if history is any guide, it might come down to the wire. So in 2012, there was at the very end, the day before the original title vii was going to sunset, it was extended, and particularly it had this language here, striking december 31st, 2012, and inserting december 31st, 2017. And thats where we are today, right . This is the law we have on the books today, which is the reason we have so much press these days is because the issue is, you know, extending this either with or without modifications is something thats been discussed quite a bit. Thats a kind of level setting, here we are. So i thought it would be helpful, because people sometimes use these terms, fisa, section 7, 702. Fisa as it exists today has a number of these titles. I bolded title vii, which is where section 702 lives. Title iii is business searches. Section 215 of the patriot act, thats not section 702. That lives in title v. Were talking about title vii. Section 702 is a portion of title vii. We kind of push into title vii here, we get the sections within fisa, within title notably, these are other than u. S. Persons, right . So section 702, as i suggested at the very beginning, is specifically designed in relation to people who are not u. S. Persons. That contrasts with some of the other sections of title vii which actually address the u. S. Persons. So section 702 is specifically nonu. S. Persons. Thats the Historical Context of where section 702 sits within title vii, and more broadly within fisa. So now lets talk about what some of these mean. First of all, u. S. Person, im not going to read the whole definition, but of course we mean a citizen of the United States. We also mean, as it says here, an alien admitted for lawful, permanent residence. This is actually a definition from title i of fisa. This definition is referred to in title vii as a definition of u. S. Person. So lets take a look at what it allows. Section 702 allows an authorization of collecting communications of persons reasonably believed to be located outside the United States. It doesnt mean they necessarily in every single case are. But they need to be reasonably believed to be outside the u. S. The goal needs to be to acquire foreign intelligence information. Thats it. Thats the goal of this thing. The authorization to do that is basically the attorney general and dni jointly are able to give this authorization. But they can do so under two conditions. One is upon the issuance of an order by pursuant to an order issued by the foreign Intelligence Surveillance court, is sort of prong one. Alternati alternatively, there is an exigent circumstances prong that allows dni and the attorney general to authorize, provided they go back within i believe its seven days and file the appropriate paperwork with the foreign Intelligence Surveillance court. So thats the kind of key authorization language that you have in the statute. Im going to take a detour here, and were talking about section 702, but ill take a brief twominute detour and talk about section 704. The reason i wanted to do that is because in a lot of the discussion about section 702, you hear people talk about the lack of probable cause. Just to provide the context there, section 702, as we know, relates to nonu. S. Persons. Section 704 by contrast relates to acquisitions targeting u. S. Persons outside the United States. And notably, this is the text, the statutory language from section 704, there is a probable cause prong in that. So people often contrast the probable cause requirement that must be satisfied for section 704 with the absence of such a requirement for collections under section 702. And then again in section 704 there is a definition which identifies some key features of what probable cause is. And again, that language is not in section 702. So lets return now to section 702. And well talk about what is foreign intelligence information, right . So there is a definition of that. There is sort of twopronged definition there and sort of a second prong i think sort of sob assumes the first. Ill talk about both those. Foreign intelligence information, first of all, and this is one of two slides on this, its information, and this is sort of what you would expect, right, addressing an actual or potential attack, sabotage, International Terrorism, or clandestine intelligence activities by a foreign power. So those are thats foreign intelligence information. An additional portion of the definition is broader. And its this right here. Its information with respect to a foreign power that relates to and concerning u. S. Persons necessary to the National Defense or the security of the United States or the conduct of the Foreign Affairs of the United States. So i think its reasonable that everything in this slide, attacks and International Terrorism and can did he slande intelligence, this to me is the thing that sort of defines the scope of this. And so one of the things that people discuss is what is the scope of foreign intelligence information and how broadly should that be interpreted. But thats the statutory language there. These are the limitations here. I want to go through each one of these because its important for at least me to remind myself, remind us all what you cant do under section 702. First of all, youre not allowed to target any person, u. S. Person or not, if you know that that person is inside the United States. You also cant target a person outside the u. S. If the purpose is to target somebody is to get information about somebody who is inside the u. S. So for example, lets suppose i am, you know, communicating i am in the United States. Im me. Im communicating with somebody outside the u. S. If the government were to want to get my communications, they couldnt use section 702 to do an end run around normal war requirements and say, lets go acquire the communications of this person outside the u. S. That john was talking to, because if we do that, were going to get johns communications as well. This is specifically prohibited under section 702. Section 702 by its definition, youre not allowed to go after u. S. Persons. Even if that person is outside the United States, that in no way leads to an obligation to cspan needs you to speak cspan needs you to speak from the podium. Okay. Sorry. Cspan needs me to speak from the podium. Okay. And then lets see, youre not number 4, youre not allowed to acquire communications where anyone is inside the United States. Even if these people are nonu. S. Persons and theyre inside the United States and communicating with each other, section 702 cant be used for that. And everything has to be done in a manner consistent with the Fourth Amendment. Those are some of what you cant do under section 702. So what happens is, the attorney general and the dni basically provide to the foreign Intelligence Surveillance court, a certification explaining that theyve made all the requirements and why they would want to get an order to target for an acquisition. There is an exception, this is the thing i mentioned before, there is the exigent circumstances type of exception. If thats invoked, then they have, you know,ge no later tha seven days after that they have to provide the paperwork for the court. These are the two sort of prongs on how you can proceed on this. Let me just move this over so i can see this a little bit better. So one of the things that we talk about, you hear talked about a lot in association with 702 is targeting and minimization. So targeting refers to the set of procedures that are designed to make sure that the persons who are targeted do satisfy the requirements of section 702, for example that they are located outside the United States. And theyre explicitly subjected to judicial review by the foreign Intelligence Surveillance court. So the fisc will look at the targeting procedures and either reject them or accept them. Another phrase that you see a lot is minimization. So minimization is, again, something that gets developed by each, you know, relevant unit of the Intelligence Community. And it also is subject to review by the foreign Intelligence Surveillance court. And whats interesting, if you look at whats interesting is the law doesnt say exactly what the minimization procedures are. What it says is what they must do, what they must satisfy. In other words, the details of the minutimization are not laid out here. Basically it aims to protect, for example, dissemination of nonpublic acquisition and retention and dissemination of nonpublicly available information about u. S. Persons. Again, i bold faced this, number two, protections against identifying u. S. Persons, and then i have ttem 4. Paragraph 3, evidence of a crime. It is being or is about to be committed. This is the only one of these prongs that doesnt explicitly have a u. S. Person carveout in it. Those are the minimization procedures. What fisc does is looks like all this stuff and then it will, you know, look at targeting and look at the certification thats submitted by attorney general and dni and look at the minimization procedures. If all of those pass muster, then it can grant it can issue an order pursuant to which then dni and attorney general can authorize the collection. So this is the if the court finds that, you know, the certification has all the required elements, that an address minimizati minimization, and the Fourth Amendment is satisfied. Thats mechanically is how it works. How it happens is then you can compel an Electronics CommunicationService Provider to provide the government with assistance to accomplish the acquisition. Then the government would engage with one of the regular companies that provides the Communications Services that are the subject of potential acquisition, and the government will reimburse the company for having done so. And theres also a liability shield as well. So a company that receives an order or directive to then, you know, perform an acquisition, you know, cant then be sued by somebody claiming that their information was acquired without their consent because there is a liability shield associated with that. In terms of oversight, there is a kind of a host of mechanisms that kind of range from mechanisms internal to an element of the Intelligence Community out to congressional committees and beyond. So the head of each element of the Intelligence Community conducts a review each year. The Inspector General of the department of justice and the Inspector General of each element of the Intelligence Community can review compliance. At least twice a year the attorney general and dni assess compliance with respect to targeting and mini minute minimization procedures. They publish a transparency report with the number of search terms, queries and so forth. They just a month or so ago published that report for calendar year 2016. These are examples of some of the oversight mechanisms that are built into the law. Another form of oversight or disclosure is that fisc rulings are redacted and then published by office of director of national intelligence. Theres a tumbler. Com, many of you may have seen this, i see on the record, where you can go and download rulings, significant rulings as well as other documents that dni has chosen to publish in relation to section 702. Then in addition, the companies that receive the 702 directives are allowed to do reporting. And there is a complicated set of formulas for exactly what they are and are not allowed to report, how they round the numbers about how precisely they round the numbers. There is exclusive provision in the law to enable those companies to report the directives of a number of directives rounded to some number that theyve actually received. Theres a kind of, like i said, a layered set of oversight mechanisms. I want to talk about thats the kind of statutory framework. Im going to briefly talk about some of the operational things that inevitably happen and that sometimes lead to some of the discussion about section 702. Just as the, you know, fundamental key point here, as i mentioned before, section 702 prohibits targeting of u. S. Persons. Nonetheless, its just statistically inevitable, if youre conducting many, many acquisitions, if the number gets large enough, there wa