Reform or Expire? The Battle to Reauthorize FISA Programs
7:53PM Jul 27, 2020
usa freedom act
We are here for hackers on planet Earth. It's your 2020. We are all virtual thanks so much for joining us. Our next talk is an exciting one we've been looking forward to it. It's all about the Pfizer section of the Patriot Act and this is something you should be very interested in reform or expire, the battles reauthorized twice a programs in the McKinney, and Andrew Crocker will be assessed at what we're going to do is play the film, but before we do that I want to mention that hope is doing a fundraiser for the E FF, check it out it's on the wiki it's on the web page, we'd love to have donations we're trying to help the E FF do the stuff that they do so well. And maybe we'll we'll plug that again later on. So let's go ahead and we'll play the video we'll be back in about 32 minutes for some question answer and discussions with India and tender.
Hello and thank you for joining us. This is reform or expire, the battle to reauthorize five sub programs. I am Indiana McKinney and with me is Andrew Crocker. We are both with the Electronic Frontier Foundation. I am FF director of federal affairs, and before coming to FF I spent over 10 years in Washington DC as a legislative staffer to several members of Congress, Andrew is a senior staff attorney at emff on the civil liberties team. He focuses on national security and privacy as well as the coders Rights Project, and importantly for this discussion he's also on the litigation team for efms lawsuits challenging the NSA mass surveillance programs. So today, we're here to talk about section 215 of the USA PATRIOT Act. It's a surveillance law, with a long history of government overreach and abuse, and it expired. Earlier this year, along with two other provisions. It lapse because lawmakers failed to reach an agreement on a broader set of reforms to these provisions, but there was a lot that went into that process and that's what we're here today to talk about. Back in 2001. The Congress passed the USA PATRIOT Act, it's the title of the bill is actually the uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism. This bill was signed into law in October 2001, which was about six weeks after the September 11 attacks in United States. This bill was pushed through very very quickly and gave broad overwhelming powers to the NSA to intercept, a lot of communications there was a lot of fear there was a lot of panic that went into this bill as it went through because we wanted to make sure that nothing like this was ever going to happen again. And we wanted to make sure that law enforcement had all of the tools to possibly prevent anything like this ever. So there were a lot of new justifications and methods for surveillance that were included in this package and over time we started as we started to realize exactly what was going on with these packages we realized that we had created these broad surveillance tools that were being abused and overused by some of the intelligence community community agencies and there needed to be a lot more transparency and reform embedded into these provisions. but all of that really came to a much sharper focus in 2013, when Edward Snowden leaked a bunch of documents from his time as an NSA contractor, and that made public, a lot of the things that we had suspected we and other civil civil litigation attorneys been suspected to be true about what the NSA and the FBI were doing with these tools and how these tools were being used to spy on Americans. Shortly after the revelations from Edward Snowden Congress introduced a bill called the USA Freedom Act. This bill was initially introduced by Senator Patrick Leahy and Representative Jim Sensenbrenner that bill went through several different iterations and challenges and changes and amendments and reforms before and eventually got signed into law in 2015, in that 2015 law. There were a couple of critical things which is why we're here today. One of them was the expiration, for the 702 program, which was scheduled to sunset or need to be reauthorized in 2017. And then there was also the expiration of Section 215, as well as roving wiretap and lonewolf that were scheduled to expire at the end of 2019. Those two provisions are some of the key four key issues that were in the USA Freedom Act that civil libertarians like the like us to dff had problems with so section 702 was scheduled to be expired in 2017 and section 215, as well as the lone wolf and roving wiretap programs were scheduled to expire at the end of 2019. Lots of things happen, which we'll get into, but that authority was temporarily extended to March, 2020, and that deadline has also passed so those authorities are currently expired except it's a little bit more complicated than that. But before we get into the political ramifications Andrew is going to talk to us about what exactly to 15 says and what needs to be changed.
Thanks India. Hello from sunny bluffdale Utah high above the NSA data center right there were in 2014 ef F and Greenpeace flew an airship over the data center to protest the abuses revealed by Edward Snowden and to push forward, the reforms that became the USA Freedom Act so this felt like an appropriate background for me. So as India said I'm going to talk a little bit more about the legal background of Section 215 and how it affects the legislative debate that we're having now. When the Patriot Act was passed in 2001 section 215 authorizes the government to compel really anyone to turn over any tangible thing relevant to investigations involving terrorism counter espionage or foreign intelligence. That was a very significant expansion of the pre existing section of Pfizer that before 911 which only applied to a very limited set of records held by certain types of regulated businesses common carriers and things like that. It was a very controversial law, even at the time but it was not clear just how broadly the government was going to interpret it. In fact, as India mentioned one of the sponsors of the bill representative sensenbrenner later said that he was shocked by how the NSA had interpreted it after 911. So, in secret, the government began operating several mass surveillance programs in response to the 911 attacks, although those surveillance programs, initially operated under the presidents, that was then President Bush's purported authority as time went by the government began to rely on Pfizer to conduct these surveillance programs, including section 215, and then starting in 2006, the government began invoking section 215 power to compel any tangible thing to compel phone companies, telephone telecoms to disclose hundreds of millions of records of Americans phone calls, within the United States and in fact outside the United States as well and the primary reason for doing this was to try to uncover links between known terrorism suspects and previously unsuspected individuals by training contacts and at its peak what they did was they they looked at who those suspects were calling it, who their those contacts were calling and yes in fact, a third hop as they call it the who the contacts and the contacts were calling, which generated we think 10s or even hundreds of thousands of contacts, who had to be investigated for any given suspect. So these mass surveillance programs, the one that I'm the ones that I mentioned started secretly after 911 were finally revealed to the public. Several years later, mostly through media reports and whistleblower evidence and using this evidence EF f began to sue to try to stop these mass surveillance programs being right in 2006. We first tried to sue at&t directly that that lawsuit was called heptane versus at&t, and that was effectively killed by Congress two years later in 2008. When it gave the telecoms including at&t retroactive immunity for their cooperation with the government's surveillance programs. So then we've assumed the NSA directly that lawsuit is called jewel versus NSA starting in 2008 and that actually continues to this day it's been up to the courts of appeals twice and we hope to have it heard later this year in the Ninth Circuit Court of Appeals. So during these years of litigation, the government had not at all publicly acknowledged the connection between section 215 and these mass surveillance program. Until as India mentioned the Snowden revelations which the very first document that was published was an order from the Foreign Intelligence Surveillance Court the Pfizer court directing Verizon in particular to turn over the phone records of all of its customers in bulk on an ongoing basis and this. Although it was known because it had been reported and speculated about this was really a wake up call and a shock to the public at large, and the public began to learn more about these programs and really how ineffective they are, as I mentioned they generated hundreds of thousands of leaves for any given suspect and so unsurprisingly, it did not help the government find what they often call the needle in the haystack. And both the Privacy and Civil Liberties Oversight Board and a Blue Ribbon Commission appointed by President, President Obama concluded the program was neither essential nor effective so this is in the time between the Snowden revelations in 2013, and the passage of USA Freedom as as India mentioned in 2015, more shocking we learned that between 2006 when they started relying on section 215, and that revelation of the program publicly in 2013. The Pfizer court had not conducted any in depth legal analysis of Section 215 for this purpose, at all, they had not analyzed really whether it was constitutional whether the government's interpretation of law made any sense. And we also learned that the government had been caught engaging in unauthorized use and dissemination of the telephone records database for many years. During this you know longer than decade that there are nearly a decade that they've been relying on on section 215. So with this new understanding of the law, we, we, as long, along with the ACLU and others filed new lawsuits ours was called the First Unitarian Church of Los Angeles versus NSA where we had 24 organizational plaintiffs that brought first and fourth amendment claims, as well as a challenge to the government's reliance on to 15 in particular, trying to stop the mass collection of telephone records and just briefly the idea is there our First Amendment gives you a right to privately associate as part of a mission driven organization like the NAACP, where these cases are found are founded on, as well as the fourth amendment which protects you from unreasonable searches and seizures if you have a reasonable expectation of privacy and the information being collected so our argument there of course being that phone records reveal these associations under the First Amendment and that we have expectation of privacy in those connections and the calling, we have, we had expert declarations about the revealing nature of metadata. Very often who you called is just as important as what you said so think about calling a doctor or an abortion clinic a gun dealer a suicide hotline. It's pretty easy to infer what we're going to be talking about when you make those calls and the government's primary defense. As I mentioned, sort of analyzed by the size of court only in 2013 was the so called third party doctrine the idea that when you provide information to a third party you lose your reasonable expectation of privacy and that information. We had lots of reasons why we thought that didn't apply. But, as, as luck had it, no court really ever reached those those rulings. The ACLU case ACLU vs clapper reached a decision on appeal first. In 2015, the Second Circuit Court of Appeals held that the NSA his interpretation of the law just the very idea that he could use section 215 to collect all of these phone records in bulk was quote unprecedented and unwarranted In other words, the NSA was operating illegally by using section 215 to do this mass surveillance and the court noted as I mentioned that much of Congress didn't even have any an inkling of how the NSA would be using 215. In 2001 when it passed the Patriot Act. So, as India mentioned. Later that year in June 2015 USA Freedom Act was passed it was seen as a sort of bargain, it ended the possibility of further injunctive relief, you know, a constitutional ruling in those cases including the FF that I mentioned, but it struck some really important reforms. Congress, very probably most importantly responded to the revelation of these mass surveillance programs and said no more mass surveillance no more bulk collection. Under Section 215 or any of these other authorities and as we'll see in a minute that turned out to be less definitive as we than we'd hoped but that was really the goal that was being set. And in the place of this sort of mass surveillance program, USA Freedom instituted books called the call detail records program which was a pared down version of the three hop mass surveillance that I talked about before. Instead, the government had to provide a seed number for which they would prove to the Pfizer court that they had reasonable articulable suspicion, and then using that see they could get two hops from the phone companies. But those those records will only be provided once they find the corded rule they wouldn't be collecting all the records in bulk, all the time. What we learned was that this was a less effective
safeguard than we have been we might have hoped. In 2017 for example the government recorded it reported that even under this more limited call the sales records program, they still collected 530 4 million call detail records. And then just last year in 2019 we learned that the government had actually stopped operating this program entirely due to what it called technical irregularities. It was just unable to operate the program within the boundaries of USA Freedom so they stopped using it entirely and that goes back to something I talked about earlier which is that this program was of questionable utility to begin with, and they just stopped using it for a year. And then, very importantly section 215 has another, at least as reformed as reformed by USA Freedom section 215 has another provision sometimes called the business records provision that allows the collection of any tangible thing, based on a specific selection term. And we know comparatively far less about this use of Section 213 and we know about the call detail records program though, based on reports and testimony by government evidence and government officials. It seems to have been interpreted quite broadly as well and allow the government to get its hands on a very wide swath of records, including the kinds of things we might think should be protected by the warrant requirement. We've also learned that the government much like the government's lack of legal and interpretation for the telephone records program, the intelligence community has never given any guidance on the effects of the Supreme Court's ruling in the carpenter case from 2018 which might be the most important privacy decision from the Supreme Court in a generation and yet the intelligence community has no guidance on whether section 215 can be used to collect the kinds of records that were held to be protected by the Fourth Amendment in that case. So in short, even after the passage of USA Freedom there was a lot wrong with section 215, and a lot that we didn't know. So I'll turn it back to India now for what happened,
puts on mute. So the important thing to remember when you're talking about surveillance programs is that this is not a partisan issue in the way that we tend to think of political issues in DC happening to be clear, this is an incredibly political issue but it doesn't fall along Republican and Democrat lines. As I said back in 2013, when the first USA Freedom reform bill was introduced, it was introduced by Senator Patrick Leahy, which was a stalwart democratic senator and Jim are representative Jim Sensenbrenner who is a stalwart House Republican both incredibly well respected in their parties, there are, they're big leaders in this field, but they agreed that the government had overreached in some of these places and they needed to roll back some of these programs. So, 2017, when the section 702 provision was up for reauthorization or renewal we were trying to put some additional reforms because we've learned some things in the interim we were trying to add new reforms in the way that the lines tended to break down was not Republican and Democrat, but more House Judiciary Committee versus House Intelligence Committee, same with the Senate Judiciary Committee in the Senate Intelligence Committee. The Senate Intelligence Committee in the House Intelligence Committee tended to want to have much more permissive reauthorization standards in the legislation and the House Judiciary Committee tended to want to have a little bit more oversight a little bit more transparency and a little bit tighter control, so going into the 2019 reform process. The chairman of the House Intelligence Committee Adam Schiff, and the chairman of the House Judiciary Committee, Jerry Nadler wanted to start meeting on a regular basis to figure out the areas where they could agree and they could really start drilling down into places where they disagreed and try to come to a compromise make the process a lot more transparent. Make it a lot cleaner and hopefully get a better product towards the end which is an admirable goal. So as Andrew mentioned the NSA was even not using a big part of the 250 permissions to call detail records programs because of technical irregularities. And so that seems like a pretty easy starting point we're going to end that particular provision. But if you will think back to the end of 2019 which was not that long ago. The big thing that started happening in the late summer and early fall of 2019 was impeachment hearings impeachment investigations and then impeachment proceedings. And if you will recall that the main players in that particular drama were representative Adam Schiff, the chairman of the House Intelligence Committee and Jerry Nadler chairman of the House Judiciary Committee, and many other members of their committees so they were busy. So, shoved in to the end of a package at the end of 2019 was a short three month extension period that moved the expiration date of Section 215 lonewolf and roving wiretap from December 15 2019 to march 15 2020 to get everybody a little bit more time to go through this. So again, talks continue drafts were released we were involved in some discussions in the process looking at early versions of the drafts trying to push more transparency more oversight more restrictions into the process and early in March, 2020, the house introduced a the USA Freedom reauthorization package, which did not have any committee markup did not allow for any amendments to be considered on the floor and was just hurried up and passed in the House of Representatives, where it got sent over to the Senate after that, the Senate, could not because of some other political processes that were happening over there at the time they knew that they weren't going to be able to get to the 60 votes they needed to pass in the Senate. So instead they enacted a compromise they're going to do some amendments over there and people were upset at the language of the bill they were going to do some amendments they were going to consider it they were going to take a step back. So they passed another extension, but also if you remember what was happening in March, 2020. The that was also around the time the Congress shut down all in person operations and sent everybody home because COVID was really becoming more of an issue in DC. So, even though the Senate passed a couple months extension. The House of Representatives left town before they could pass it. So 215, just expired it expired on March 15 and hasn't been reauthorized since then. Fast forward to May, the Senate consider some amendments they ended up passing, one of the amendments, the Lee Leahy Amendment,
which created some additional forms to the bill passed the bill overwhelmingly in the Senate, and sent it back to the House of Representatives, because the bill had changed the house had to vote on it again. The house starts to consider the bill gets kind of far into the process of considering the bill but at the last minute. The bill pulled from the floor, the floor, the House floor. Earlier that day, the President had started tweeting veto threats and talking about how this was not the package she wanted this wasn't the reform that he wanted there needed to be additional changes and all of a sudden support for the bill just completely evaporated. So, again, package had been up package had been considered by Congress just left town without reauthorizing the package at all. So as of right now, section 215 is expired roving wiretap is expired lonewolf is expired. But that doesn't necessarily mean what you think it means there are all sorts of other provisions that are around to allow the NSA to still surveil our information. And if there was an investigation that had started before March 15 2020, they are allowed to still use the authorities provided in Section 215 to continue that investigation. I'm going to kick it back over to Andrew to talk about what was actually in the reform packages and what FF liked about some of the provisions that were offered, and what we really wanted to see changed.
Yeah, and obviously that legislative history was incredibly easy to follow and was in no way affected by the whirlwind of confusion caused by the coronavirus crisis so I'm sure everyone remembers that all vividly, and I I just like myself I didn't have to ask for any kind of refresher on it or anything like that it was completely easy to remember where we are and where we've gotten, but enough
to be fair I mean, it was hard at the time trying to figure out where we were and what was going on because first there was impeachment and then there was COVID and then there was more COVID and then there was more COVID. This was not a transparent, or easy to understand process.
Yeah, and that's a really important point is that we were there was so much we don't know about how the intelligence community uses these laws and a sort of rush process, not to mention the impeachment and pandemic is not the way to handle these things. So, as we'll see, there was, there's a lot more that could have been done. So, about a year before all this happened all the history that India was just talking about happen if that began to work on our priorities for the, for the needed reforms and along with some other groups, led by the ACLU we sent a letter to Congress that listed our priorities, and by the measure of that letter and the things that we wrote around that letter. Neither the USA Freedom Reauthorization Act nor the competing bill that came from a different committee to safeguarding Americans private Records Act went far enough reforms that were contained in this USA Freedom Reauthorization Act that went through all these votes are necessary to be sure, but as the title of this presentation suggests more should be done if the law is going to be renewed at all. So the highlights of the USA Freedom Reauthorization Act are, it ends the call detail records program as India said that was sort of seemed like something that should be agreed upon by all parties although in the run up to the passage of this bill. We had members of the intelligence community arguing that they shouldn't. It shouldn't be ended even though they weren't using it because it was akin to having all the tools in the toolbox in case you needed a tool, even though that tool was not being used. Hard to hard to wrap your mind around that one but that was the argument made by some members of the intelligence community. This the Congress seem to not be persuaded swayed at all by that argument and ending the cdr program was the bare bare minimum of what they could have done it also would have clarified that the government could not use section 215 to collect any kind of information that would require a warrant, if the cops were doing it in a law enforcement investigation, rather than an intelligence or counterterrorism investigation. And it also specifically would have prevented the use of 215 to collect GPS information and also cell site location information so two types of location data. Not location data more generally, though, it would have made clear that one of the more important reforms from the USA Freedom Act that the Pfizer court declassify its opinions had to be done on a certain timeline of 180 days that was something that they,
and that it would be done retroactively for old Pfizer court opinions. Those were those were two things that we sort of felt like that they should have been doing all along but at least we could get it in the new law, it would have expanded the involvement of the Amicus which is the friend of the court who can come in and important cases and represent the public interest and argue against the government which is something that prior to the USA Freedom Act, we just didn't have. So this would have expanded when the Amicus would have participated and also what information that person had access to. And it would have also required the FBI to report on its use of various size authorities and its use of, you know, querying of databases of collected information for Americans names. This is something that the FBI had just been exempted from before that, and it was just closing closing a loophole essentially this is the FBI is probably the one, the one agency that does this the most and yet they were reporting on this activity so just a basic transparency provision. There was a lot that it didn't do however, probably if that's the number one priority in any reform bill is to ensure that people who are subject to surveillance have appropriate means of challenging that surveillance and making sure that it is lawful and, you know, in our view that is not awful. And even in criminal cases as we found over a decade plus of litigation, the government has insisted that in order to challenge the legality of surveillance, you have to prove that you were truly a subject of that surveillance so in civil cases like ours. We've had standing hurdles so many times, showing that even when the government surveilling everyone that our individual plaintiffs have been subject to that surveillance which seems like it should be easy to prove but the government has, has come up with a number of tries ways of trying to bar us proving our standing, and in criminal cases defendants are required to get to get notified that they're being that they've been subject to surveillance, but the government has interpreted that notice very very narrowly, they don't know defend in the history of Pfizer has ever gotten access to the information collected about them or the order signed by the by the court. And very often the government has interpreted its obligations to notify What about what kind of surveillance super narrowly So, In the case of 215 and 702 for example, very few defendants I've ever been notified that they were, they were somebody that surveillance, even though they're going to be put in prison, based on the evidence collected by those surveillance programs. And that just encourages the government to engage in parallel parallel construction which you may or may have read about. So we, we would have liked for any bill that renewed section 215 to close that loophole to expand, who is notified that they've been subject to surveillance, and none of that none of the reform bells really, really touched that in any meaningful way. It also doesn't try to close the loophole that I talked about earlier where the government is collecting many many records using section 215, engaging what's sometimes called bulky collection rather than bulk collection. The definition of the specific selection term in the business records provision I talked about earlier is very open ended, it has a catch all provision and that means that for all we know the government could be using this in an extremely broad way targeting entire companies ranges of IP addresses and so forth and so we just, we don't know what we don't know but we're worried that it could be it could be used. Extremely broadly much in the way that it has been used to collect telephone records in bulk. It doesn't, none of the bills, including the reauthorization act sufficiently limited the type of records that could be collected under Section 215. As I mentioned, it does say that the Reauthorization Act does say nothing that would require a warrant if collected by the cops in a criminal case, and it names to kinds of location data, we'd like that list to be much longer to be much clearer and to clarify what it means to require a warrant even in the criminal context as we've seen from the government's and the intelligence community's very cramped interpretation of the carpenter case, for example, it might take the Supreme Court specifically naming a type of records for them to consider it off limits. Under Section 215 and that's just not how we should be running it surveillance authorities, a couple others. There aren't there aren't clear minimization requirements in these bills there's, there should be a time limit and a requirement of the destruction of irrelevant information collected, even if it was collected in good faith. And there should be heightened protections for first amendment violations and collection of information based on protected classes like ethnicities and religions, as India did mention the Senate did add an amendment sponsored by Senators Lee and Leahy that would have strengthened the
participation of the Amicus and and the types of information that the Amicus would have had access to that passed. There was a failed amendment very controversially but Senate, sponsored by Senators Wyden and Danes that would have clarified that section 215 cannot be used to collect your internet search records or browsing history, in our view that was entirely clear even the Pfizer court has made has made clear that browsing history is a form of content that should therefore be protected by the Fourth Amendment in our view, but it couldn't have hurt to spell that out and for some reason Congress, or the senate couldn't couldn't get it together to pass that with 60 votes. So that's the sort of disappointing content of the bill that has failed to pass both houses of Congress so far,
which of course begs the question, what happens next. And the short answer is we don't actually know. So, again, back in March. The, when the bill was first introduced the bill passed the House of Representatives fairly overwhelmingly and went before it moved over to the Senate, the only difference the only change was the Lee Leahy amendment but by the time that it got sent back. Between veto threats from the president and other things that had happened other changing landscapes, other shenanigans support for the bill had evaporated and a lot of the people that have supported it in March were saying in May in June, that they couldn't possibly support the bill anymore. So, it's unclear exactly what has changed. To the extent that the bill support for the bill has evaporated. And again, the authorities have expired, but because of some of the provisions. They are allowed to use some of the authorities ongoing until these investigations end, but even right now as far as we can tell the intelligence community isn't going to Congress and pushing them to reauthorize any of these programs, it's just expired. So, in our view, it sort of begs the question, this, if they're not asking for any of these authorities to be expired because they don't need them that much. Do any of them need to be expired there should be a lot more questions that are being asked and Congress should take the opportunity to ask a lot of these questions What exactly do you need and if you don't need them because you're not asking for them when you don't have them. Maybe you should just leave it expired. Of course, the complicated landscape. And if we're heading into an election season, that is going to be incredibly interesting, and some of the other things that are coming up related to other forms of government surveillance what else is the government doing how else is the government listening to our conversations and monitoring protesters and all of that other stuff it complicates the entire landscape. So it's not clear that Congress has the appetite to take this bill up again before the end of the year, but that can obviously change incredibly quickly we don't know what's going to happen we know that we are opposed to the bill in its current form we don't think it's strong enough, but we don't know what Congress is going to do about it and because the process is completely broken down it's hard to figure out. It's hard to guess what's going to happen next. So on that uplifting note, there's still some time left. And so we'd like to answer any of the questions that you have or clarify any of the things that we have said previously, so we are going to end here and then turn it over to the live q&a parts.
We're back with Indian Kenny, Andrew Crocker host of the Electronic Frontier Foundation. Their talk has been recorded reformer expired about reauthorize programs, I think we just heard the status of the flight recently it's for anything new in the, our Andrew that you might want to share with us.
Yeah, so it's important to remember that a lot of the stuff that we were talking about in terms of legislative history that happened, late May early June and there hasn't been any movement. Since then, so what I didn't include before, is the, you know, the Senate and the House have each passed a slightly different version of the bill and so in order for it to go to the President, they have to send an identical each pass an identical version of the bill to send to the President. And there's one provision that's different. The Lila e amendment. And so the easiest, fastest way to reconcile those two differences is to go to a conference committee where they all sit in a room and they figure out what the differences are. But they each have to pass a resolution to go to a conference committee. The house has passed, there's the Senate has not and so there has not been any movement whatsoever to move this process forward or not it's just a complete stalemate. If the senate votes to go to conference then there could be movement, if the house backs up and just decides to pass the same bill that the Senate passes there could be movement, but neither chamber has made any movement towards doing that and they each firmly believe that the ball is in the other chambers camp. So I don't know if we're going to see movement on that before election day the calendar is a little bit against them.
Yeah, sounds like
it sounds like something, or it sounds like rather nothing may happen over the next several months. Right.
Well, they happen on reauthorizing to 15, but depending on where questions come from we can talk about the other ways that the intelligence community has to get after some of the same information, which, again,
I don't know.
Well, so, so I wanted to ask a earlier question but that's, you just led me to the next question. One last question I want to ask earlier before then, is you know I think people have a lot of passion around these issues, certainly the Patriot Act is something that we've been tracking the us as individuals for now, decades. Is there, what sort of action or, you know, discussions will be what will you guide people that aren't going to be running into Congress and working on briefs and reading all these things yeah what could people of hope conference do to to track act and maybe influence.
Well to track you can certainly sign up for updates from BFF we are certainly spending quite a lot of our time still tracking, what is happening or what is not happening in terms of influencing. We have a lot of tools at our that we will share with our members and our supporters, about emailing or calling or sometimes tweeting at members of Congress when they're in the stages of negotiation. So unfortunately, fortunately, unfortunately, members of Congress, tend to only focus on American citizens and citizens from their districts, but we have some tools that help people figure out exactly who their elected representatives are and help them make sure that they're contacting both of their senators and their house member.
So some local action is syndicated and you help with that with some automated tools. So okay that's great and and and we'll keep that in mind because I think you know we're, we're at least I don't know for necessarily inclined towards action but we'd like to know about what the action could be so yeah but what we were saying, a moment ago is that you might want to elaborate on some of the other areas in which these concerns exist
outside of this particular deal. Right. So one of the things that we've been arguing for is Congress needs to take the time to consider whether or not they actually need the authorities in Section 215 and to be very specific about what they are actually allowing, because there are even though the authorities have expired. There's a lot of other tools, you know they keep talking about we need all the tools in the tool belt, there's a lot of tools in that belt for them to still be surveilling, and we're not exactly happy about that either, but it's not clear to us that they need to 15 at all, especially since they weren't using a pretty significant part of that. Andrew I would you can detail a little bit more about what all of the other tools are as our resident litigator.
Sure. So, a non exhaustive list of course because there are many, but some of the other tools at their disposal that we certainly seen used in in various foreign intelligence investigations as well as criminal investigations that touch on these on these matters include national security letters, good old fashioned grand jury subpoenas subpoenas and warrants issued under the Electronic Communications Privacy Act, and so on and so forth. colleagues and I wrote wrote an article about this back around the passage of USA Freedom and nothing has really changed there's, there's a long list of surveillance tools you'll sometimes hear the talking point from the intelligence community that you know no one tool. Completely tracks with section 215, which I think is maybe less strong of an argument than, then it's supposed to be because if there was another tool that was exactly the same as section 215 we wouldn't need section 215 at all. And I think it really just underscores the need for a lengthy discussion and analysis of what section 215 is actually used for which the public is so rarely invited into. And then the last thing I'll mention is, although section 215 legislation the USA Freedom Reauthorization Act seems solid moment there's at least one other bill in Congress that that raises concerns that are under these provisions and that's the law enforcement access to encrypted data Act, the latest act this is an issue that Indian I both work on and it would provide a very sweeping authority of the government to undermine encryption call for backdoors in a variety of investigations including advising investigations associated with section 215 which is concerning to say the least. So I would urge people watching this talk to check out the latest act and our objections to it.
Yeah, thanks. So you mentioned. One thing that I want to focus in on for a moment, which is how often are these used when or that you know when are they use who's using them stuff like that. And, you know, to what extent Can you summarize the pervasiveness of the different elements of the toolset I know there's so many, but you know how often is this happening and. And do you even believe the reporting that is available.
So, the reporting that's available, largely is a result of the Snowden revelations and then the passage of USA Freedom, those are those two occurrences are what pushed to the intelligence community, led by the Office of the Director of National Intelligence to spark start publishing yearly transparency reports. They've gotten more detailed over time. And certainly the USA Freedom Act had a number of reporting specific reporting requirements that that did not, you know, did not exist before. So we've gotten a little bit better sense of how these tools are used it for Section 215 in particular, what what you'll get is the number of orders issued by the Pfizer court the number of targets of those investigations and then, at least for the call detail records program, the number of records collected, that's, that's not really available for the business records program in the same way and that's why it's just sort of their, their lives dragons provision in my mind is, we just don't know how prevalent it is, but to sort of summarize it, you'll get a small number of orders and investigations each year, leading to the generation of lots of records collected and a lot of people whose accounts have been targeted and that seems like a recipe for breach. You know that that sort of small target window and look huge amount of records collected. We can debate the semantics of whether that's mass surveillance or not. It should still be subject to much greater oversight so we actually know what's going on.
Yeah, yeah, thank you. So you have this great blimp behind you, that says illegal spying below and so the next question I want to ask you, we talked about reporting and you're describing what reporting is, let's say there might be some shenanigans going on there. In other words, there might be some obfuscation some some records that aren't sent or just like we saw in the Snowden revelations, they have definitions for words that might not be like collection retention, intelligence, and all of these other died. Do you have any sense of the extent to which your just actual illegal spying occurs in other words a Pfizer request was not made in the interacting zone or that sort of thing.
Well, certainly not a comprehensive sense, I will say that the tools that are disposal are better after USA Freedom the the fact that the Pfizer court has to declassified significant opinions, going forward is a huge help to those of us on the outside trying to understand things like how words are defined, how the intelligence community is interpreting laws and and that process has led to the publication of findings by the FBI support and reports by the intelligence communities for self reporting of mis use, and that includes the so called technical irregularities that I mentioned in their pre recorded section of this, of this talk. I couldn't make it operate in the way that it was intended. So we do have those those incidents, sometimes called civil liberties incidents in the in the in the reports that are published as far as you know how often this happens we just don't, I think. Interestingly, the Carter page investigation in the inspector general's report that came out at the end of last year about irregularities in those investigations which were not under Section 215 has led to some further analysis and sort of auditing of Pfizer process and we sort of hope that will continue that was one of the things that was floated as part of these reform bills and didn't really make it into the final bill in any kind of robust way.
Thanks, um, one thing I'm curious about maybe for both of you, you were watching the, the matrix shot and there's such admiration for the work that the E FF does and I wonder if you could take a moment in each maybe told an element of your personal journey to where I got where you are. And also, anything that you might advise for people that might be interested in you know in getting into this kind of kind of role I know you're, you're both in somewhat different roles so hopefully there's different answers.
So, I'm not an attorney. I went to work on Capitol Hill. Right after college and I was on Capitol Hill for about 10 years I worked for several different legislators and a variety of different committees. And so one of the things that I do at E FF now which is really great is I can translate the awesome work that my co workers like Andrew are doing in the litigation side back to something that my former colleagues on Capitol Hill need as they're considering new legislation. So when I was a staffer I used to love it when pff would show up at my office and they would give me documents or they would give me research or they would give me really well written well thought out. Well conceived arguments that made sense to me and then I could you know copy and paste and show to my boss and make myself sound really smart. So I like being able to play that same role for some of my friends back on Capitol Hill and try to take what happens after you pass the bill. Back to Congress because there's a whole different world of case law that e FF tends to focus on that Congress doesn't focus on unless somebody tells them about it
myself I, as a lawyer I actually set out to go to law school because I wanted to do the kind of work that e FF did I didn't think I would end up at DFS quickly or maybe even at all and it worked out very well for me but in terms of in terms of why I was interested in this, I was one of these people who came of age, after 911, and the passage of the Patriot Act and was just it deeply disturbed by, by, by those developments and, you know, sort of went through college and afterward. Following Jeff's work and admiring it and thinking that there was no way in hell I would go to law school, but sort of slowly came around to the idea, set out to law school and managed to get a fellowship to come to the FF originally and I actually remember writing my pitch for the funding for that fellowship, by describing documents from the jewel case that I talked about earlier. And then found myself very quickly working on that case, sort of a dream come true.
dream come true. But when that you can't wake up from.
Yeah, I got
a question about
that in the chat. People were curious if there was an update that you can share on Jul versus NSA and maybe any other lawsuits involving mass
surveillance on you know constitutional and legal grounds that you're involved with for sure this is this is definitely a case of the wheels of justice moving extremely slowly so in July, in particular, I said earlier, it's been up to the Ninth Circuit Court of Appeals twice we're sort of on our third go round depending on how you count. We that's fully briefed so it's hard. I don't have this in front of me, but I. The remaining cause of action constitutional causes of action. In that case were dismissed. Back in, want to say 20 2019, we've, we've appealed that decision to the Ninth Circuit that's something we've been long expecting based on earlier rulings in the case. We are at the stage where we've plausibly allege that this surveillance happened, based on all the various evidence that exists, but the court, the district court was dissatisfied with the evidence that we that we showed and said that we couldn't prove it, and alternatively that it was too secret to allow it to be litigated in public, despite there being a clear procedure and Pfizer for doing so. So that's up on appeal. Another major lawsuit is one brought by the ACLU on behalf of Wikipedia and other parties. And that's on appeal as well in the Fourth Circuit Court of Appeals and in the Maryland, Virginia area. They have a similar problem, about to seek to litigate that's being that's being hashed out right now. My colleagues and I just followed through from that case, a couple of weeks ago. And there are also a handful of criminal cases involving either section 702, and one involving section 215 that are up at the courts of appeals in the 10th circuit in Colorado in the Ninth Circuit, and so forth and we keep, we keep looking for other criminal cases get involved in because at least in those cases you know that these, these intelligence authorities were used. As I mentioned earlier, there is this bar to actually getting access to those materials and that tends to be one of the things we addressed when we filed briefs in those cases is just how inconsistent that is with Congress's intent when it passed Pfizer Pfizer that was supposed to be a compromise where we had this very sensitive national security surveillance, and yet it completed the due process and the people who were surveilled will have a means to challenge that surveillance and that just hasn't happened in the 40 plus years of Pfizer.
Yeah, yeah. Fascinating. Thank you for that update we're just in our little last minute so very quickly. What are you hopeful what gives you hope.
Yes, I mean, one of the things you know Andrew mentioned that in the USA Freedom Act of 2015, there was a provision that all novolin significant opinions from the Pfizer court have to be made public, which helps us a lot in our work. One of the things that I've been taking back to my friends in Congress is the definition of the word hole in that piece of legislation is a subject of some litigation. And so the question is, did Congress mean all starting in 2015, or all starting back from 1978. We think it's pretty clear from 1970, like from the statements that Mr. Sensenbrenner and others made at that time that they meant all starting at the beginning, but that's the type of thing that I can take back to the people that are working on the bill now and say look this is clearly not what you intended you include you clearly intended to do these other things. This is what's happening in the court system, there needs to be a legislative fix in that. And they're like, oh yeah okay so let's talk about that. And so there really is the desire to do more on this Congress has a whole lot of
ability to do oversight and transparency, matter of time and
But we're so so there's so we are at the end of our time and you have to have 10 seconds or less than what gives you hope.
Oh man, I think you have to take a long view and I think you have to see some of the really empty arguments made by the intelligence community that are gradually being rejected so in this last go around we've seen the intelligence community, met with a lot more skepticism than it was prior grounds and that that does give me some hope.
Thank you. Thank you. We have to wrap it up there. Thanks so much for joining us. Thanks for the work that you do with the E FF and the work that hole. And again, I encourage hope attendees Christmas everyone watching on the live streams, participate in our E FF fundraiser. Thanks again, have a super rest of your day and we'll be back in a few minutes with our next great talk at hackers on planet Earth, 2020.