What is Section 702?

Release Date
October 26, 2017

Topic

Civil Liberties Government Rights
Description

A panel of experts from TechFreedom, the ACLU, R Street, and the US Naval Academy discuss Section 702, the controversial warrantless mass-surveillance provision of the Foreign Intelligence Surveillance Act (FISA).

  1. Foreign Policy Explained, Ep. 1: Government Surveillance: We’re Being Watched (video): Is government surveillance of private citizens ever justified? Prof. Abby Hall Blanco from the University of Tampa explains the history of spying by the American government on its own and foreign citizens.
  2. Should You Be Afraid of the NSA? (video): Cindy Cohn and Ronald Sievert share their opposing views on the threat of NSA Surveillance.
  3. Edward Snowden: Surveillance Is about Power (video): NSA whistleblower Edward Snowden says government surveillance is taking away our privacy AND our security.

ASHKHEN KAZARYAN: Hello and welcome, we are live from the Learn Liberty studio in Arlington, Virginia. And today we’re gonna talk about surveillance with the R Street Institute, ACLU, and Tech Freedom. So, ever since the Snowden revelations, government surveillance topic moved to the headlines. However, national security and civil liberties aren’t easy topics. So, to help us guide through all the different legal mumbo jumbo, I’ve gathered a panel of experts. To my left is Jeff Kosseff, Assistant Professor in the United States Naval Academy, from Cyber Science Department, Neema Singh Guliani from American Civil Liberties Union in DC, their legislative counsel, and Arthur Rizer the National Security and Justice Policy Director for the R Street Institute. So, let’s jump right in, I’m gonna start with Jeff. Jeff, today we are talking about section 702. So, do you mind explaining what it is, and how do agencies collect our data under its authority?
JEFF KOSSEFF: Sure, I’ll try to be brief on this, but it’s actually a fairly complex web of statutes and to really understand Section 702, you have to understand the surveillance laws in general. So, you start off with basic criminal surveillance statutes, like the Wiretap Act, and the Stored Communications Act, which generally require a showing of probable cause approved by a neutral magistrate probable cause of a crime having been committed to obtain a wiretap order, or basically, under the Stored Communications Act, a warrant now. Although, there’s some discussion and debate about that, but that’s for another panel that we could talk about later. But, so, but that involves sort of domestic criminal surveillance. For foreign intelligence surveillance, the statutory framework for that was first developed in 1978 when congress passed the Foreign Intelligence Surveillance Act, which was grown out of a concern that the government might be using it’s foreign intelligence surveillance powers to spy on people domestically. So, it created a number of authorities, most predominantly Title I, which requires the government if it’s conducting foreign intelligence surveillance within the United States to obtain a warrant from a new court, called the FISA Court, which is basically a nationwide court of judges who sit on district courts, and who are appointed by the chief justice, and to obtain this warrant they have to show probable cause that the target is either a foreign power, or an agent of a foreign power, and that the facility, so the phone number, for example, that’s being targeted, is likely used by that person. So, that’s how it went for years and years. And then, in the ’90s and the 2000s as there was more fiber optic communications being built, and there was more sort of communications that went through U.S.companies that actually involved people who were located outside of the United States and were non-U.S.persons.
ASHKHEN KAZARYAN: So, internet appeared.
JEFF KOSSEFF: Yeah, exactly, so there became an issue that the government was still to conduct surveillance on people who were outside of the United States, not U.S.persons. The government was still having to obtain these individualized FISA warrants. So, in 2008, there was a predecessor statute, but the current statute is the FISA Amendments Act of 2008, and Section 702, involves the targeting of non-U.S.persons, or not U.S.citizens, not permanent residents, who are located outside of the United States. And the big distinction between 702, and previous authorities is that 702 does not require an individualized warrant. However, it does require a number of steps for the government to take before it can conduct surveillance.
ASHKHEN KAZARYAN: Okay, so we’ll go back to that, but this sounds pretty simple to me in the sense that it’s targeted at foreigners, why should Americans care about this, Neema?
NEEMA SINGH GULIANI: Yeah, and I think before I dive into why we should care, I think it’s important to understand the scope of 702. I mean, we’re not talking about a couple of dozen emails here or there, or a handful of phone calls. Looking at the numbers, how many individuals does the government target under Section 702? The most recent transparency reports says over 106,000, so that means.
ASHKHEN KAZARYAN: A year.
NEEMA SINGH GULIANI: A year, right, so that’s not just those individuals but you can extrapolate, let’s assume each of those people talks to 100 or a thousand people, the number of people under surveillance globally, under section 702 is enormous. In terms of actual number of communications and transactions being collected, that’s also enormous. So, from a recent FISA Court opinion, we know that annually internet transactions alone were over 250 million. Now, let’s put that into context. This isn’t information that’s collected and deleted immediately, in most cases the default period that’s kept is five years. So, it’s not a stretch of the imagination, and it’s not an exaggeration to say, that at any given time the government may actually have a billion communications or transactions in its custody that it collected under section 702. And so, you hear from the government when you raise concerns about the number, you raise concerns about the privacy and civil liberties implications of section 702, you hear, I think two statements that aren’t entirely true. The first you hear is, look, this is really about foreigners, this isn’t about Americans. And the second thing that you hear is that, look, this all happens with appropriate court process. And those are real misstatements for a couple of reasons. The first is, if you look at who can be targeted under Section 702, it allows people who have no relation to national security, no relation to a terrorism threat, no relation to criminal activity of any kind to be surveillance targets. Under the terms of the statue they can target anybody who has information, U.S.foreign intelligence information. But, that could include information about foreign affairs. So, let’s say you’re a journalist and you report on drones. Let’s say you’re an international businessman and you follow world news. Under the text of the statute itself you could be a target under Section 702. And what we see in court filings is the government readily admitting that not all 702 targets are international terrorists. So, this isn’t an authority that’s focused on national security and terrorism, it’s an authority that touches other issues. I think the second issue you hear a lot about is this is about foreigners. Well, that’s not entirely true, either. At the time the government actually collects information, or Section 702, they know that they are gonna pick up the communications of Americans, and Americans who are in communications with these targets. And they know, and their procedures intend to exploit that information. So once they have 702 information, the government says, look we can search through this information, and we can use it for purposes that have nothing to do with terrorism, and nothing to do with national security. We can use it for domestic purposes, criminal purposes. The FBI routinely searches through databases that contain Section 702 information as part of its investigative processes. And so I think it’s really important to understand the concerns stemming from Section 702, not just because of the size of the program, but because it affects Americans, and it extends far beyond terrorism purposes.
ASHKHEN KAZARYAN: So when I was in Moscow for Christmas break, and I emailed you about the surveillance work we are doing that probably got swept up, maybe, there is a chance?
NEEMA SINGH GULIANI: It’s very possible and that’s one of the problems, right? If you are not a U.S.citizen or green card holder, and you are overseas and talking about surveillance, presumably could be considered information about foreign affairs, you could be a target. Our conversation could be swept up, and let’s say, for example, I was under investigation for some reason, the government could search through their 702 database which would include information about yours and mine conversations, and get that conversation and use it in a criminal matter that had nothing to do with with why they collected the information to begin with. And so what you see is, I think, a lot of defense of 702 under the grounds of national security, under the grounds that it targets foreigners, but really the authority is about much more than that.
ASHKHEN KAZARYAN: So Section 702 has been recently in the news a lot because of tweets from the administration about some collection and wiretapping that happened during the transition period between the previous and current administration. Arthur, how does Section 702 fit within this picture and this story?
ARTHUR RIZER: Well, President Donald Trump tweeted and said that he was intercepted via wiretap. He didn’t go in whether it was a Title III, which is a criminal wiretap, which as I think the professor stated, not only you need probable cause, I used to say you need probable cause on steroids. Because you needed to be able to show there was no other type of investigative tool that would work, and a lot of people don’t realize that you actually need the deputy assistant attorney general to sign off on every single wiretap in the United States, pretty high threshold. So we don’t know exactly what President Trump’s accusations are except that he made the accusations. That’s the one thing we know for sure. And I think it’s interesting, because what I find most incredible about his statement is that he’s actually helped the privacy aspect of things, because he has changed the dialogue about 702 with the hawks, and there’s hawks on the left, and there’s hawks on the right. And what I mean by that is you have individuals in Congress who are maybe chairmen of very important intelligence committees talking about, you know, you could be next. Not something you would have heard from these individuals a year ago. So how this fits into the 702 debate, and how it fits into the 702 reform debate in particular, is that I think it has really highlighted the need for oversight by Congress. Because there is this distrust now between the Executive Branch and the intelligence community. And that is actually really scary in many ways. You see the Flynn revelations, and I don’t know if Flynn was picked up on the 702, maybe he was, probably he was, there’s a good chance that he was. But what you know from this is that you have a internal struggle somewhere within the intelligence community where they’re actually leaking things out, committing crimes, because of the problems within the administration. So the 702 debate has actually highlighted a pretty major problem within the intelligence community where you have soldiers going against their generals, which is not something we should be advocating in the United States, but at the same time, it revealed some really information that actually helped make America safer, if you would say, because Flynn was doing some dangerous things. So I think that all these things kind of have created a perfect storm, where Congress now should be at the tip of the spear saying, okay we need to have some reform here, and there needs to be some actual oversight over what’s going on between these different factions, if you will.
ASHKHEN KAZARYAN: So there is a sunset for Section 702, so it means it’s gonna run out, end of this year, December 31st, and there is a talk of a reform that Arthur mentioned. And when we talk about reform I was wondering what are your thoughts about the way Section 702 succeeds and the way it fails? Jeff, do you want to start with succeeds?
JEFF KOSSEFF: Sure, I think, and I’ll start by saying it’s far from perfect like any statute. Any, especially, when you’re in the national security and intelligence arena. So I don’t think anyone would say that any statute works perfectly, that’s also not a way, or a reason, to eliminate it. In terms of its success as of a few years ago the NSA said that about a quarter of its reports on terrorism relied at least in part on Section 702 information, which I think is pretty astounding. The NSA has called it it’s most vital foreign intelligence data program—-
ARTHUR RIZER: It’s “crown jewel” is the word they used.
JEFF KOSSEFF: Yes, exactly, so as one example one of the really difficult things about this is so much of what the government does in this arena is classified. So you can’t necessarily have so many examples publicly about its success. Last week, or the week before, the director of national intelligence released some anecdotal information, it was, I believe, the second time this had happened about some success stories. One of which was that there was an Al Qaeda courier who was being targeted under Section 702, I believe it was in Pakistan, and that allowed the NSA to obtain information about someone in the United States who was asking about explosives, who was emailing with this courier, and then the FBI then conducted a lawful investigation of this person. And they found that he had been planning to detonate explosives on the Manhattan subway line. So that’s an example of its success. In terms of percentages, other than that 25%, I think it’s very hard. And that’s why I think if there ever were a reform it would be more transparency for both the successes and failures. And I think that, for example, the PCLOB, the Civil Liberties Oversight Board, had done remarkable work in terms of generating, I believe, a 200 page report on all of the costs and benefits of 702. And I think work like that needs to continue for 702 to succeed.
ASHKHEN KAZARYAN: So Neema, what are the, you’ve talked a little bit about the failings, but do you want to bullet point it for us?
NEEMA SINGH GULIANI: Sure, I mean, I think to just address some of what Jeff raised, I mean we hear a lot of talk about 702 and its successes. I think it’s important to also factor two other things into the conversation. One is, regardless of its successes or failures, we have to look at the constitutionality of the statute. And I think that there are serious constitutional concerns and there’s serious privacy and civil liberties concerns that affect whether the Section 702 program should continue. And so I think that that’s an important part of the conversation. The second is that one of the things we haven’t heard is whether some of the reforms that have been talked about would actually undermine the efficacy of 702. All of the examples that I’ve seen cited about the success of 702 have been in relation to terrorism. But the statute as we talked about before extends much further beyond that. So what would reform look like? In my mind there’s a couple of key pieces that it should include. The first is up front limiting the scope and the purposes of Section 702. If Section 702 is really about combating terrorism and protecting national security, there’s no reason that the statute itself shouldn’t reflect that and collection should be limited to those purposes. The second thing I think we need to make sure to do, is to make sure that the statute doesn’t bleed into allowing the government to search for information about Americans, right? If Section 702 is really about targeting foreigners, the government should not be able to search Section 702 information, Section 702 databases, for information about Americans without a warrant. And what we’re seeing is that they are, and they’re doing it in increasing numbers. Third is I think, you know, we definitely need more transparency and oversight. As one of the things Jeff mentioned, one of the major changes, or differences, between Section 702 and sort of a traditional FISA process is that intelligence courts never look at the individual target. They never do an assessment. They never peek under the hood and say, actually there is or isn’t cause to target somebody.
ASHKHEN KAZARYAN: So how does this happen exactly? So FISA Court, that special court, that addresses those issues, so who comes to the FISA Court with what paper, or what filing do they come in, and what do they exactly ask the court?
NEEMA SINGH GULIANI: Sure, so the government goes to the court. And so this is an annual process, right? And they go to the court and they say, here are the procedures we used to target an individual. Here are the procedures we used to, what they say, minimize the information, how we treat this information, how it’s used, how it’s retained. And the court signs off on those sort of programmatic procedures.
ASHKHEN KAZARYAN: So there are no names.
NEEMA SINGH GULIANI: Right, so if you were a 702 target, the court would never assess is there cause to believe that this individual has foreign intelligence, is there cause to believe that they’ve committed a crime, is it reasonable to surveil them in any ways? The court never does that oversight. And I think that that’s really important, because there has been a steady increase in the number of targets. The number of targets is substantial. And the lack of court oversight is significant. And the lack of transparency around what’s happening. I mean, I think one of the concerns has been is that basic information about Section 702 has not been made available to the public, or even Members of Congress. I’ll give you a really simple example. One of the things that Members of Congress have asked about time and time again, is tell me how many Americans have their information collected under Section 702? That to me is critical information if you’re gonna assess the effect that this program is having on constitutional rights, is just a log of the number of people affected. And for years Members of Congress have been asking this question, and they still haven’t gotten a response.
ASHKHEN KAZARYAN: So for years we’ve been asking how many Americans get collected in this tool? But, Jeff, doesn’t government have a counter argument? Don’t they say something around the lines it’s really hard to count these?
JEFF KOSSEFF: Not only that it’s really hard, but that sort of doing that data analysis to determine who is a U.S.person, actually could result in an intrusion on their privacy by having to go through all of that data. Because one thing that’s overlooked, is there’s really two different steps in the data. First it’s collected by the NSA through the targeting procedure that you had mentioned where the NSA works through two programs called the downstream, or PRISM program, and the upstream program, to actually obtain the raw data from the service providers. So for downstream, or PRISM, however you want to refer to it, and that at least as a few years ago constituted about 90% of 702 collection. That would be the government, or NSA, going with a selector, so with an email address typically, or something, a facility, a communications facility that the person of target uses. And says give me all of the communications to and from this person, for example, so that’s going to ISP’s—-
ASHKHEN KAZARYAN: So the government will go to Comcast?
JEFF KOSSEFF: Yeah, exactly.
ASHKHEN KAZARYAN: And get someones name?
JEFF KOSSEFF: Exactly.
ASHKHEN KAZARYAN: That’s PRISM?
JEFF KOSSEFF: Exactly.
ASHKHEN KAZARYAN: And then Comcast can’t tell the person, usually.
JEFF KOSSEFF: No.
ASHKHEN KAZARYAN: No, and then upstream is?
JEFF KOSSEFF: Upstream is the remaining 10%. And that’s actually obtaining the data from the actual backbone of the Internet–
ASHKHEN KAZARYAN: So all those cables under the water?
JEFF KOSSEFF: Exactly, exactly. But once that data’s obtained, then there’s a whole separate procedure for who gets to query the data and analyze the data. And it has to go through minimization procedures, and while I agree that the FBI’s ability to access the 702 data is probably the most controversial and the most troubling under Fourth Amendment concerns, I think there are a few distinctions. First, the FBI only has access to a small subset of that data. According to the FBI, and again, this is the importance of more information, the FBI says there’s very rarely a time when it gets a match for a person that’s used in a criminal prosecution from the 702 data because the FBI has a unified database. So it doesn’t just search 702. It has a database that has all sources of intelligence information. And so, for example, they might be searching for someone who’s suspected of money laundering, and then they get a match for some 702 terrorism related or some sort of foreign intelligence related data. So that’s when the FBI uses it. I agree that it is a close constitutional question, but in terms of one court has already reviewed it. A judge in DC used it’s own FISA Court and said that it is constitutional.
NEEMA SINGH GULIANI: Can I also just jump in? I think one of the other constitutional issues that we’ve talked about it a little bit but haven’t gotten really in depth, is that upstream program that Jeff was talking about. So the way it works based on the understanding from disclosures and from reports that have been put out there is the government with some assistance from providers taps into the Internet backbone. And they scan all communications transiting that backbone, so international communications, right? And they scan those communications for certain key words. They scan them information that might be to or from a target. And until just recently they also scanned it for information about certain targets. So let’s say you and I we’re in the US, we’re having entirely, we’re both–
ASHKHEN KAZARYAN: Domestic conversation.
NEEMA SINGH GULIANI: Domestic conversation and we mention a target abroad. Maybe I say here’s a journalist, here’s his email address. Or hey, have you seen this article that was written by so and so? It’s possible that our purely domestic communication could have been picked up because we were talking, we were having a conversation about a target. And so I think there are also, I think, a lot of concerns and it’s an area where the ACLU has ongoing litigations with this upstream program, because it permits that type of collection. But also, more importantly, it’s essentially mass scanning of communications. And as part of the process of scanning they temporarily seize all the information on the backbone, they copy it, retain it for some indeterminate amount of time that we don’t know, and they look for those key words. And I think that that causes a lot of concern with people, because it’s reminiscent of the kind of generalized warrants that the Fourth Amendment was designed to prohibit.
JEFF KOSSEFF: Well, could I just respond? I would say, first, the ‘about’ is no longer being conducted.
ASHKHEN KAZARYAN: But, so do you mind talking why and how it’s not being conducted anymore?
JEFF KOSSEFF: Well, it was announced about a week or two ago that the NSA is no longer performing ‘about’ collections–
ASHKHEN KAZARYAN: But they still have that authority. They can still do it if they change their mind.
JEFF KOSSEFF: Yes, yes they can.
NEEMA SINGH GULIANI: And also, I think what I was, sorry not to cut you off, I think one of the important things about the announcement that happened last week, was the reason the NSA said they had chosen to stop about collection was they had compliance issues. They were unable to comply with prior requirements put in place by the FISA Courts. And I think you mentioned they very clearly said that this is a choice that’s being made because of a technical hurdle. But they explicitly said that they were not changing their legal interpretation. They weren’t sort of saying, we acknowledge that we are not gonna do this and we cannot do this. They sort of said we’re having a technical issue, and so for now we’re stopping this.
JEFF KOSSEFF: And could I just get back to a point? And this fits in with what you were just saying about the compliance and sort of court supervision, I would push back a little on the idea that the courts that there is not court supervision. I agree the courts do not look at who is specifically targeted, each individual targeting decision. However, there are many compliance reviews conducted both by the DNI, the attorney general, within NSA, the Director of National Intelligence, sorry, and that the FISA Court does receive, and review, and there have been numerous times in at least the declassified FISA Court opinions that have come out where the courts have really taken the NSA and other agencies to task for compliance issues. So these are all Article III life tenure judges, confirmed by the Senate, and they’re tough on the NSA. They’re tough on the government. They don’t have any political stakes in this. So I think the FISA Court actually plays a very effective role in supervising. Is it perfect? No, but I think to say that there’s no judicial supervision wouldn’t be correct I don’t think.
NEEMA SINGH GULIANI: Yeah, I don’t think it’s the case that there’s no judicial supervision. I think the concern is that it’s certainly far less that exists in a traditional FISA context. It’s certainly far less than would exist in a traditional warrant context. I think if you ask the average person, if you’re sending an intimate email, or a personal email to a business associate abroad, or a loved one abroad, does it comfort you to know that once a year the FISA Court maybe signs off on programmatic procedures with some compliance? They would say, well no, that’s not what the Fourth Amendment requires. And so, I think when we think about oversight we have to look at the diminished role of the FISA Court versus other types of surveillance and different from other contexts. And we also have to look at the historical problems I think that have come out over the last several years when it comes to surveillance. I mean one of the concerns has been a lot of what the FISA Court does happens in secret. There’s very little transparency. You hear, even from Members of Congress, who say something was disclosed and I didn’t know about it. And I think that that should all give us pause about the level of oversight.
ASHKHEN KAZARYAN: So we know something is happening. We are promised everything behind the curtain is okay. And our rights are not violated. But if we talk about reform, so first and I guess least discussed contradicted argument would be let’s get in some more transparency, right? What are the ways we can do that, Arthur?
ARTHUR RIZER: Well I think transparency is one reform. But I think there’s actually some simpler ones. I think one of the biggest reform that you’ve already talked about is sunset. Sunset is a reform. You let it sunset, let Congress go back to the drawing board, I don’t know if that’s wise, intelligent, or likely, but that is a reform that I think that people should be thinking about, especially privacy advocates. I think one of the biggest reform and it blows me away that this isn’t, both the left and right are not screaming about this, because it kind of affects the ideology on both sides, is codifying the things that we already talk about doing. And actually putting things on the books that make people feel better, that doesn’t actually affect the program itself. So one of the examples is definitions. Almost every single statute that you read, especially criminal law statutes, will have a definitions section. So it tells you how they’re defining things. Well, in most national security statutes they don’t do that. They actually don’t do that on purpose, because they want to make them as broad as they can, and we saw with the battle in the Freedom Act, that the agencies can increase the scope of a lot of things by defining things the way that they want to. So targeting is one of the things that should be codified with a definition.
ASHKHEN KAZARYAN: So what exactly is ‘targeting’?
ARTHUR RIZER: It’s how they’re identifying individuals is basically what we’ve been talking about this entire time. So you know 702 is broken into two big sections in my opinion. There’s targeting and minimization. So the targeting is how they’re identifying who they’re gonna pick up in the first place. But everything, all the reform efforts, have to kind of link onto that. I think in the criminal justice aspect something that Neema touched on, we have policies from the Department of Justice that talk about how these things will be used in the criminal justice system. But they’re just policies, well why don’t we codify those things? If you’re okay with it then why not codify it? The upstream that we were just talking about, okay so they’re not gonna do the about section of the upstream, well then codify that. If it’s something that you’re saying you don’t need or you’re not gonna use anymore, then put it down on paper. A lot of the stuff that kind of wraps around 702, talking about the Presidential Policy Directive 28 which isn’t directly on point, but it’s on point because it kind of expands some protections to people who are not U.S.citizens or green card holders. That’s not a law. Now you should either ratify that, or don’t ratify it, but at least have a public debate about it. And let the light be shed upon what’s going on. I think a lot of the frustration here is the transparency aspect that Neema already went through all of that. She explained it in a much better way than I ever could. But the transparency side of things really will make a lot of people feel better. And I don’t think it would change as much as people think it would. Just let people know what’s going on.
ASHKHEN KAZARYAN: So what is the argument, so does government say for the sake of national security we can’t tell you how we’re doing this? We can’t tell you what happens behind the curtain. Is that their argument? Why can’t we be more transparent?
JEFF KOSSEFF: I would say the government has made great strides in the past few years in becoming more transparent. The director of national intelligence has a Tumbler site which has actually a tremendous–
ASHKHEN KAZARYAN: He’s late to the party isn’t he?
JEFF KOSSEFF: It’s actually a wealth of information. It is redacted because of the classified nature. And my frustration as an academic who writes about it is sometimes an entire document is redacted.
ASHKHEN KAZARYAN: And they still put it up?
JEFF KOSSEFF: They do, but there’s also a lot of very useful information on there that gives so much insight into targeting, how the data is minimized, how long it’s retained, and I think that’s a great progress, and I think it needs to continue.
ASHKHEN KAZARYAN: Yeah, that sounds good. But Neema, until we have a good person in place who is trying to be more transparent, but if we another administration in four years and they put in place someone who is not as into Tumbler, shouldn’t we have, what kind of transparency checks would you put in place just like one, two, three?
NEEMA SINGH GULIANI: Yeah, I mean I think that you hit the nail on the head, right? We need to have these transparency requirements written into law. I’m of the opinion that while there has been progress on the transparency side, there’s a lot more that needs to be done. I would say, first and foremost, basic statistics about 702. How many Americans have their information collected? How often is the FBI searching databases that contain Section 702 information, looking for information about Americans? More detail about in what types of circumstances those searches are done, and the types of communities they affect I think is important. Another piece of information we have requested many times but have been unable to get is understanding what the government’s notice policies are. So let’s say they decide to use information gleaned from Section 702 in a criminal prosecution, in what circumstances do they inform the criminal defendant that that’s how the information was collected so that individual can do what is their constitutional right and challenge unlawful surveillance? We have serious concerns that they’re not doing that notice, and apparently there is a Department of Justice document that maybe outlines what their process is, but the public, right now, and Members of Congress largely are not aware of what that policy is. So those are, I think, that’s a start. And I think along those same lines, we need to have more declassification of FISA Court opinions and orders, and other legal opinions that give us insight into how the government’s actually interpreting its authorities.
ASHKHEN KAZARYAN: So, Jeff, you testified in front of Congress a couple of months ago. And when they asked you if Section 702 should get a clean reauthorization you said yes.
JEFF KOSSEFF: Yes.
ASHKHEN KAZARYAN: Do you mind telling us why? We’ve been discussing all these problems that exist and you’ve admitted that there are some gray areas at least. So why do you think it should be clean reauthorization?
JEFF KOSSEFF: Well, I think first off, it’s incredibly successful in terms of the national security information that it produces just based on the even the few anecdotes that are available, that’s information that should be public, that should be available to the government that has been. So it is a tremendously valuable program talking to anyone in the intelligence community. So in terms of the benefits they’re huge. I think that oversight is great, transparency is great. I do think in terms of amending the statute too much to address specific procedures that concerns me a little bit, because Congress can’t move as quickly. And so when, we’re still, I talked about the Stored Communications Act that’s from 1986 and we’re still applying court order and more rules based on whether an email has been in storage for more than 180 days. Because that was the state of technology in 1986 and we still haven’t changed the law despite numerous proposals. So I worry that just given the political nature of Congress that it wouldn’t be able to adapt as agilely to emerging security threats. So if the targeting procedures right now have specific safeguards I worry that in three or four years there might be changes to actually improve them. And if they’re in the statute you’re not gonna be able to. So transparency is great to continue to let people know what the targeting procedures are, but I really do worry about getting too specific in the statute.
ASHKHEN KAZARYAN: Arthur, do you have anything to respond to our professor?
ARTHUR RIZER: I don’t dispute that it is the crown jewel of the intelligence community. I worked in the intelligence community. It is the crown jewel of the intelligence community. And it does have a lot of benefit. That argument scares me a little bit though, because something’s really effective doesn’t necessarily make it right. You know I thought the Battle of Fallujah you know what’s really effective? Killing every male in the city, that’s really effective, that really limits terrorism, it’s wrong. So I think the idea that something’s really effective and that’s the first bullet point, and that’s always their first bullet point, scares me. Because what I would like the first bullet point to be is is it right? And is are what we doing right? And I don’t understand why we can’t codify some of the very basic things that I actually heard you agree on sitting right here. Especially when dealing with the criminal justice system. That to me is a no brainer. If they’re not gonna use these things in certain criminal cases, you know what is the standard, the AG has to approve, has to be national security–
NEEMA SINGH GULIANI: Attorney General.
ARTHUR RIZER: Attorney general has to approve, has to be a national security case, or other serious case which is a little caveat they stuck in there to be able to fit anything they want in that bag. But regardless, put it into law. I mean you’re putting people in jail. When you put somebody in jail, there should be a law about it. I feel very strongly about that. I mean I don’t actually disagree with the principal that he outlined, it just makes me nervous when that’s–
JEFF KOSSEFF: Could I just address something briefly? There actually are a number of restrictions in the law. I mean the law starts out with a number of very clear restrictions about a prohibition on reverse targeting, a prohibition on the collection of information of communications when all the communicants are in the United States, prohibition on targeting U.S. persons or people located outside of the United States. So I would disagree that there are, with the principle that there are no limits. I mean the statute is all about limits, and limits on the government’s authority. But it does give the flexibility to work within those limits. If those limits are not being followed that’s a problem. But I haven’t seen evidence that the statute’s being disregarded.
ASHKHEN KAZARYAN: We talked a little bit about backdoor searches and stuff like that, do you want to–
NEEMA SINGH GULIANI: I mean I think part of the problem is some of the most controversial aspects of the problem aren’t in the statute, right? So something we’ve talked about a lot the backdoor search problem, right? The FBI and other agencies searching through 702 databases–
ASHKHEN KAZARYAN: Hasn’t DEA done that?
NEEMA SINGH GULIANI: Right, the FBI does it routinely, according to the PCLOB, the Privacy and Civil Liberties Oversight Board, reports. When can they do that? Do they have to get a warrant? Many people, myself included, think they should have to get a warrant before they search through the databases. The government asserts that they do not need a warrant. I think that that’s something that the statute needs to provide clarity on. And I also wanted to just sort of highlight, I hear this a lot, well Congress doesn’t move fast enough. Congress passed the Patriot Act pretty fast after September 11th. And that was a monumental piece of legislation. I’m not saying it was a good piece of legislation, I happen to think that there were lots of flaws in it. But I think this idea that well we should be afraid to put requirements in the law because congress cannot act, to me is also a very scary argument, and hasn’t necessarily been reflected in history.
ASHKHEN KAZARYAN: Haven’t we just seen how Congress put together a health care bill and passed it in a week?
ARTHUR RIZER: There’s nothing outlined between the four of us that we can’t find very solid middle ground, and things that I know that my stakeholders would agree with. And I think that is really the key here. There’s, Neema and I have talked to different Members of Congress together that are willing to have a pragmatic solution to this. That’s what’s the results gonna be. I mean we’re not gonna see a sunset most likely. But I think that there are some real pragmatic things that would make civil liberty individuals feel a lot better about things.
ASHKHEN KAZARYAN: Yeah, talking about pragmatic, doesn’t this affect business too, American business?
ARTHUR RIZER: This actually affects businesses a lot more. And it’s not just the things you read in the New York Times of how the NSA was actually paying tech companies in order to help facilitate some of the requirements under 702. If you just look at the way that the modern world works business, it is about the transfer of data, that’s what it is. Billions of dollars are made every single day on the transfer of data. Anything dealing with the transfer of data affects the modern business model. So you look at, specifically at the European Union, and the way that they identify human rights and privacy as being linked and together. And then you look of the Court of Justice of the European Union has actually issued statements on this. Any American corporation that is not on board and does not meet those requirements are at a distinct disadvantage. And our competitiveness is going to be hammered. So and I think that’s actually one of the best things dealing with the upstream change we just saw. I think it’s actually kind of a pragmatic solution by the NSA in order to ensure privacy shield is moving in the right direction—-
ASHKHEN KAZARYAN: So a privacy shield is this agreement between EU and U.S. making sure that data, so Europeans were worried that Americans were going through their data. So they put in place this agreement where they get some more additional kind of checks in place–
ARTHUR RIZER: Right, there’s minimum safeguards–
ASHKHEN KAZARYAN: Am I correct?
ARTHUR RIZER: That are identified and met, and it’s up for review.
ASHKHEN KAZARYAN: And now EU is trying to is reassessing the European Court of Justice is reassessing the current how American intelligence community collects information. They’re not sure if they want to keep that shield up. And if that shield goes down who gets affected? American tech companies?
ARTHUR RIZER: Oh yeah, I mean it’s gonna be, Facebook will lose billions of dollars. Google will lose billions of dollars. We’re talking billions with a capital B. This is how money is made in the tech world. And losing this ability to work with all of Europe, basically, maybe not Britain. Is really going to affect the way that we generate wealth in this industry. And I think that’s really important. And I actually, I want to clap the NSA on the back for the upstream modification because I think it’s actually gonna go a long way to help ensure that we actually have an agreement again.
ASHKHEN KAZARYAN: Okay, so we have a few questions from the audience, and then I’m gonna give each of you a chance to wrap up your thoughts about 702 and what we should do next. So I’m gonna read all of the questions, it’s three questions, and then you guys can answer any of them. The first one is from John and he’s asking if there’s any hope of abolishing FISA? Second one is from Harry and he asks, if the ACLU doesn’t have clear lawyers who can actually see the same things the FISA court can see how would they be able to fully evaluate the process or regulation? So I’m guessing you will take that one. And Ted asks, is there any strong publicly available evidence that shows mass surveillance has been effective in foiling terrorist plots or making Americans safer? You’ve touched a little bit on that, so you don’t want to start with that one?
JEFF KOSSEFF: Sure I think that there has been some, it’s mainly been the anecdotal reports, as well as the statement a few years ago that about a quarter of NSA’s terrorism reports rely at least, in part, on 702. Obviously it would be great to have more information. I do understand the real challenges in revealing information that could lead to your sources and methods, so it’s a really tough balancing act. And I do think that the intelligence community has done a better job. Can it do better? Absolutely, but based on what’s been provided those are all things that I’d want to prevent. I agree that you do have to do the cost benefit analysis. You don’t just look at the benefits. But I think it has been very effective.
ASHKHEN KAZARYAN: Do you want to answer the ACLU question?
NEEMA SINGH GULIANI: Sure, I mean I think it’s a problem that we don’t see a lot of the information that would give you a sense of how the law’s being interpreted, what the FISA Court is considering, the procedures, the internal procedures being followed by the agencies in some cases, that’s 100% a problem. It affects the ability of people to bring legal challenges. I mean we’re seeing today it affects the ability of Members of Congress to have, I think, a debate where they can talk about common sense reforms. So, yes, I mean to respond to the question, yes it’s a problem. I think to answer the bulk collection question, I think one of the things that is interesting if you look outside of 702 there actually is a lot of evidence that bulk collection mass surveillance is not effective. The most recent, I think, analysis that was done on this was the call detail metadata program. So this was a program where the government collected call records of every single American. And assessments found that it had not been effective. It had never stopped an act of terrorism. It had never helped identify a terror suspect. And so, I think that when we think about bulk surveillance and mass surveillance there is increasingly evidence that that type of surveillance is not effective. And that using sort of more narrowly tailored surveillance actually helps achieve the ends of the intelligence community better.
ASHKHEN KAZARYAN: So intelligence agencies shouldn’t be as lazy and just cast a wider net, they should do more groundwork, old school, and just go out there in the field and target specific suspects they have?
NEEMA SINGH GULIANI: I mean, I think the analogy I’ve seen is sometimes if you make the haystack so big it becomes really hard to find the needle. And so I’ve heard former FBI agents say, look more target surveillance is actually better because it allows analysts to focus their energy on people who are more legitimately should be the focus.
ASHKHEN KAZARYAN: So, John, who I’m guessing is a Libertarian is wondering, Arthur, is there any hope of abolishing FISA?
ARTHUR RIZER: No.
ASHKHEN KAZARYAN: Yeah, that was my guess.
NEEMA SINGH GULIANI: Some day.
ASHKHEN KAZARYAN: Some day.
ARTHUR RIZER: There actually is a very weird, I’ve been talking to Neema about this, there’s a very strange thing about the way the FISA judges are appointed is by the Chief Justice of the Supreme Court. And I think there is a weird constitutional argument there because the Supreme Court Justice is appointing the Chief Justice is appointing the judges for the FISA, in a weird way he’s kind of recusing himself from ever taking on a case where he can argue the legitimacy of it, because he’s already participated in the process. And I’ve been thinking about it, in that way maybe, I don’t want FISA to go away either. I think it has some really useful things, and I don’t think the intelligence community is lazy by any stretch of the imagination. I think that they’re patriots and they’re doing the best they can to live within the statute. I just think the statute needs to be improved.
NEEMA SINGH GULIANI: Yeah, I think that’s actually a really good point. I mean people who are doing those jobs, and are doing very difficult jobs, it’s up to Congress and it’s up to the public to put sort of clear restraints on what the parameters of those surveillance authorities are.
ARTHUR RIZER: Yeah, for the record, I have very little issue with the actual NSA. We talk about who’s lazy, I think Congress is lazy.
ASHKHEN KAZARYAN: So to wrap this up, I’m gonna give each of you 30, 40 seconds to tell us your final thoughts on Section 702, possible reforms, all of the issues we’ve discussed today.
JEFF KOSSEFF: Sure, well I actually should say something that I should have said at the beginning, which is that the views that I have expressed are only mine and not the DOD, or Navy. Having said that, I do think that Section 702 is effective, it can be improved. I do not, I disagree, respectfully, about it being a mass surveillance program. The first step in it is targeting. It is targeted. Whether that targeting is correct, or whether it can be improved, that’s a different debate. And that’s a valid debate. But I don’t think that it’s a mass surveillance program. I think that it really does look at this very unique situation where we have people in other countries who are not U.S. persons who are using U.S. infrastructure. And it’s a really important policy debate to be having as to what protections do we have to have in place for that surveillance?
NEEMA SINGH GULIANI: Yeah, I mean my takeaway is what I would say to people watching this is get involved. Call your Members of Congress. Talk to them about your concerns. When I talk to people and I tell them, look your information could be collected without a warrant, most people find that concerning. And so I think that it’s really important that Members of Congress hear from constituents and the public. And I think that unless Congress is gonna undertake significant and meaningful reform of Section 702, that the law should be allowed to sunset. And then go back to the drawing board and figure out a better way, and a way that is more in line with our constitutional values to conduct, to ensure national security.
ARTHUR RIZER: And I’ll thread that needle, and I will say I find it a fascinating phenomenon whenever you talk about 702 is that you read the bullet points of what somebody is gonna say, and I read your bio, and I saw what you said in Congress. And I came in here thinking I was gonna disagree with 80% of what you say. And I agree with 90% of everything you say, and same thing with Neema. And I think that the funny thing about experts in 702 is almost always you can find some common ground, and I encourage Congress to find that middle ground and do some reforms that are gonna make, keep us safe, but at the same time protect our civil liberties. The whole point of the intelligence community is to protect American way of life. The American way of life is about liberty and being free from the government poking around in your life. I think that we should really take that to heart. And I agree with Neema that if you’re watching this get engaged, and call, and write, and blog, and scream from mountain tops about what you think should happen.
ASHKHEN KAZARYAN: So there you go. We have covered as much as we can on Section 702. If you want to know more, or if you have some questions, both Tech Freedom, ACLU, and R Street has a lot of work online that you can read and listen to. And please tweet at us. Get some information in our resources, law review articles are also a good place to start. And thank you my wonderful expert panel for joining us. This was Learn Liberty studio, ACLU, R Street Institute, and Tech Freedom talking about government surveillance, thank you.