[00:02.810 --> 00:07.190]  Hi there, there are two preliminary things I want to be speaking a couple of hours ago.
[00:07.290 --> 00:17.730]  This thing was stitched together in a hurry, but it is going to contain stories of extraordinary shenanigans, propaganda, and malarkey in the halls of Congress, so we hope at least it will be entertaining.
[00:18.090 --> 00:27.470]  The second thing is that I want to register my extraordinary displeasure and discontent at the number of British-accented people that they have speaking.
[00:27.470 --> 00:34.090]  I firmly intend for all of us to be cancelled in about one hour's time, if that's okay with you.
[00:35.230 --> 00:37.110]  We are Restore the Fourth.
[00:37.650 --> 00:41.430]  We're an advocacy group founded after Stoneman came out of the NSA.
[00:42.190 --> 00:45.870]  We have been present to the last five or six HOPEs.
[00:46.490 --> 00:51.350]  We have chapters in various parts of the country.
[00:51.830 --> 00:58.590]  I'd like to do a shout-out to Teo Chino in the front row here, who is our New York City chapter chair.
[00:58.830 --> 01:06.170]  If you're in the New York City area and you're interested in doing this kind of stuff, either locally or federally, he's the guy to talk to.
[01:07.190 --> 01:16.750]  And I'd like to introduce our program director, Stephan Peres, who has recently moved out of New York State, but we won't hold that against him.
[01:16.750 --> 01:34.930]  So, I am going to talk about the, frankly, demented fight over the Foreign Intelligence Surveillance Act that happened mostly over the fall of last year through till the end of April.
[01:35.950 --> 01:49.030]  We have only an hour, and I'd like to leave plenty of time for questions, so we are going to canter through the explanation of what happened at some speed, recognizing that we are simplifying and leaving certain things out.
[01:49.190 --> 01:52.790]  We'd be happy to at least elucidate those things in the questions.
[01:53.890 --> 02:02.430]  So, kicking off, there are going to be a few sort of basic dry explanations of terms so you can understand what we're going on about.
[02:02.590 --> 02:14.090]  Many of you already know these terms, but most of the people attending HOPE should be comfortable with the idea that NSA, on a mass basis more or less, collects signals intelligence or SIGINT.
[02:14.090 --> 02:21.210]  And they do it for foreign intelligence purposes, something which is relatively vaguely defined.
[02:21.230 --> 02:26.650]  And they do it without a warrant because it is for foreign intelligence purposes.
[02:27.230 --> 02:33.870]  The stuff that they collect can be sorted into more or less three buckets from a communications perspective.
[02:34.750 --> 02:40.650]  There is the surveillance that is conducted from U.S. persons to U.S. persons.
[02:43.090 --> 02:48.130]  That is mostly now handled under Title I of the Foreign Intelligence Surveillance Act.
[02:48.370 --> 03:01.850]  Under that, you will find such exciting scandals as the Crossfire Hurricane Scandal and the surveillance of Trump campaign operative Carter Page, both of which have fed heavily into the surveillance powers debate.
[03:01.850 --> 03:06.870]  The third of these categories is foreign to foreign surveillance.
[03:07.370 --> 03:16.690]  So both ends or all ends of a communication cannot be determined with more than 50% certainty to be a U.S. person.
[03:17.330 --> 03:22.150]  Therefore, they are declared to be foreign, whether they are in fact or not.
[03:22.390 --> 03:31.610]  So, for example, all tour traffic falls under this head because being encrypted, it cannot be determined whether the traffic is U.S. person to U.S. person or not.
[03:34.190 --> 03:38.870]  That is chiefly handled under Executive Order 12333.
[03:38.990 --> 03:43.130]  So it is not handled by statute from Congress.
[03:43.210 --> 03:45.470]  There are no hearings by Congress.
[03:45.650 --> 03:47.510]  There is no oversight by Congress.
[03:47.710 --> 03:53.490]  There are a variety of programs happening under Executive Order 12333, which was written in the Reagan era.
[03:53.490 --> 03:56.550]  What exactly is happening under that?
[03:57.010 --> 04:09.990]  All I can say is that every time we have brought that up to intelligence community folks or intelligence committee legislators, their reaction is, for God's sake, don't ask questions about Executive Order 12333.
[04:09.990 --> 04:18.290]  So what we are talking about mostly here, which was mostly the topic of what was under review by Congress, is the middle category.
[04:18.510 --> 04:28.610]  It is the set of communications collected by the NSA, where one end of the communication has been determined with more than 50% probability to be a U.S. person.
[04:29.030 --> 04:49.130]  And that is handled under Section 702 of the Foreign Intelligence Surveillance Act, which was first passed in 2008 after Congress actually found out what the Bush administration was doing, or they found out some of what the Bush administration was doing.
[04:50.090 --> 05:01.770]  So you have, for the purposes of this discussion, an NSA database that various agencies can then access and dip into without a warrant.
[05:02.270 --> 05:13.810]  The four principal agencies that can do this are NSA itself, because it's their stuff, the National Counter-Terrorism Center, FBI, and CIA.
[05:14.410 --> 05:24.530]  And the main subset of these queries of this database that were under contention in Congress was what the FBI was up to.
[05:25.150 --> 05:48.250]  Each of these four agencies certify annually to the Foreign Intelligence Surveillance Court, or FISC, the accuracy and adequacy of their procedures for targeting of people for collection and for minimization after the collection of data on U.S.
[05:48.410 --> 05:48.770]  persons.
[05:49.030 --> 06:04.270]  The FISC judge then looks at those procedures, and on the basis of those procedures and explanations of any abuses that have arisen, they certify the constitutionality of the programs.
[06:04.930 --> 06:08.870]  They have occasionally delayed certification.
[06:08.870 --> 06:15.030]  They have never refused certification because that would stop the programs operating, and who would want that?
[06:16.950 --> 06:26.510]  But by declaring these things constitutional, they are clearly blessing, after the fact, a great deal of shady behavior by the agencies.
[06:26.510 --> 06:32.310]  So that's just a very basic overview so that you understand what was under discussion.
[06:32.310 --> 06:39.510]  And with that, you already have achieved a knowledge level greater than 90 to 95% of Congress.
[06:39.750 --> 06:42.050]  So, well done to everyone in this room.
[06:42.390 --> 06:43.510]  On to the next level.
[06:45.970 --> 06:56.030]  So, part of what was at issue was what had come up in the disclosed certification opinions by the Foreign Intelligence Surveillance Court.
[06:56.890 --> 07:02.210]  Where they had talked about the abuses that had been disclosed to them by the agencies.
[07:02.550 --> 07:09.970]  Part of what had been disclosed was stuff that almost seemed formulated to antagonize members of Congress on both sides.
[07:09.970 --> 07:22.030]  There were instances of warrantless queries by the FBI of the NSA's database of over 150 Black Lives Matter organizers.
[07:22.610 --> 07:25.450]  We don't know their names, but we know that that was the number.
[07:26.710 --> 07:40.390]  There were cases of queries of the database of essentially everyone who was at the January 6th protest slash insurrection.
[07:40.390 --> 07:46.810]  Whether they were inside the Capitol, or whether they were outside the Capitol, or whether they were at the rally of President Trump.
[07:46.810 --> 07:50.270]  So, again, without a warrant, surveillance on U.S.
[07:50.310 --> 07:52.230]  citizens, collection of communications.
[07:52.650 --> 07:57.470]  FBI then querying those communications to find out what was suspicious in them.
[07:59.030 --> 08:03.370]  And beyond that, there were a number of other identified abuses.
[08:03.930 --> 08:05.510]  Stefan, it looks like you have a list up there.
[08:07.270 --> 08:08.130]  Hi, I'm Stefan.
[08:08.130 --> 08:08.230]  Stefan.
[08:08.930 --> 08:18.870]  So, in addition to these two examples, which were very helpful to cite when we were contacting legislators, there is a myriad of other abuses.
[08:19.070 --> 08:22.650]  The list is quite long, so I will only go through other ones.
[08:22.810 --> 08:37.350]  But some of note include FBI agents searching information for a state court judge who reported civil rights violations to the FBI, a member of the House Permanent Select Committee on Intelligence, and a U.S.
[08:37.470 --> 08:44.730]  Senator, as well as a batch search, which just means a bulk query, of 19,000 congressional donors.
[08:46.010 --> 08:58.850]  Additionally, we have love intelligence, so NSA agents searching prospective dating partners, as well as people looking for housing prospective tenants.
[08:59.610 --> 09:20.730]  Additionally, people who were participating in the FBI's Citizens Academy, college students participating in the Collegiate Academy, and 1,600 Americans who, quote, had flown through an airport during a particular data range and were either traveling to or returning from a foreign country.
[09:21.830 --> 09:31.850]  The conclusion to gather from this is that these searches can be for almost any reason or pretext, according to the FBI agents that conduct them.
[09:31.990 --> 09:38.030]  And I think that's important to keep in mind as we continue to talk about how the government has abused this power.
[09:40.620 --> 09:41.840]  Thank you, Stefan.
[09:42.120 --> 10:00.960]  So having successfully antagonized more or less everybody or given reason for more or less everyone to be cross, the FBI was now looking at the very awkward fact that there was a sunset built into Section 702 of the FISA Surveillance Act, of the Foreign Intelligence Surveillance Act,
[10:01.120 --> 10:06.220]  and that the sunset was coming up at that time at the end of December 2023.
[10:07.720 --> 10:14.220]  The previous one was five years before that, and we were involved with that fight as well.
[10:14.220 --> 10:37.300]  So the fact that there was a sunset was what gave reformers leverage, because we all knew that the intelligence community desperately wanted a renewal of these powers, and our preference was for them to have a nominal renewal of these powers and functionally to have their surveillance capabilities
[10:37.300 --> 10:38.460]  severed at the knee.
[10:39.600 --> 10:43.580]  It didn't quite work out that way, but that's part of what you're here to hear.
[10:45.860 --> 11:06.400]  So, part of the initial discussions among reformers and among very reform-minded legislators, and here I'm talking about folks like Senator Ron Wyden of Oregon, who many of you know has been a supporter of Internet freedom for decades, was how much of the surveillance state can we try to bite off
[11:06.400 --> 11:07.700]  using this net leverage?
[11:09.240 --> 11:11.680]  How broad do we want to go?
[11:11.980 --> 11:21.180]  One of the discussions was, how much are we going to address Executive Order 12333 and get Congress to come to grips with what is happening there?
[11:21.340 --> 11:22.980]  Get some transparency on it, maybe?
[11:23.240 --> 11:29.100]  Maybe require a warrant for surveillance of U.S. persons under Executive Order 12333?
[11:29.240 --> 11:35.040]  There wasn't much discussion of limiting surveillance on non-U.S. persons, I'm afraid.
[11:35.040 --> 11:47.880]  And I think that there was an assumption up front that with the House in the hands of Republicans, and with the relative lack of interest of Republicans in the rights of non-U.S. persons, any such measures would be a non-starter.
[11:49.640 --> 11:56.180]  There were also other kinds of barriers to getting going the kind of effort that we knew would be necessary.
[11:56.180 --> 12:04.900]  In order for there to be a successful reform effort, we would have to get Democrats and Republicans to work together.
[12:05.100 --> 12:09.880]  And not the Democrats and Republicans who usually work together, who are in the squishy middle.
[12:10.100 --> 12:14.140]  We would have to get the squad and the insurrectionists together.
[12:15.800 --> 12:19.580]  Which was a little tricky because some of the insurrectionists kind of wanted to murder us.
[12:19.580 --> 12:23.260]  Or, you know, they'd accept deporting some of the members of the squad.
[12:24.620 --> 12:31.980]  And on the part of several of the progressive Democrats we were working with, they had just been through January 6th.
[12:32.100 --> 12:41.740]  They literally had their workplace invaded and they had seen Republicans express their comfort with that having happened.
[12:41.740 --> 12:50.660]  So there were a lot of conversations along the lines of, I am not going to work with nor am I going to co-sponsor legislation with anyone who was supportive of that.
[12:51.360 --> 13:01.360]  It was necessary to get to a level of comfort between those offices before any of these efforts could even move forward in the first place.
[13:01.500 --> 13:02.160]  So that was fun.
[13:04.460 --> 13:20.840]  After about a year and a half of work where the Brennan Center in New York City was heavily involved, an amazing bill came forward in November of 2023 called the Government Surveillance Reform Act.
[13:20.980 --> 13:26.820]  And I recommend anyone with an interest in surveillance law to go back and take a look at that.
[13:26.820 --> 13:40.460]  Granted, it is a little over 200 pages, but it is basically widening the reformers' strenuous effort to thoroughly tackle the surveillance state and the problems that it gives rise to.
[13:41.060 --> 13:50.280]  So it covered surveillance of U.S. persons under Title I and reforming some of the problems that had arisen there.
[13:50.860 --> 13:56.600]  It covered the problems with the querying of the NSA databases.
[13:56.600 --> 14:01.060]  It required a warrant for FBI queries and other queries of those.
[14:03.420 --> 14:10.060]  It included oversight over Executive Order 12333, and it even did more besides.
[14:10.060 --> 14:13.020]  It required a warrant for Stingray usage, for example.
[14:13.040 --> 14:14.360]  There were a couple of other things.
[14:14.580 --> 14:16.480]  Do you recall any of the other things in it?
[14:18.540 --> 14:19.220]  Yeah.
[14:21.240 --> 14:28.520]  So, importantly, the GSRA included provisions that dealt with...
[14:29.580 --> 14:36.440]  had very specific language about the kinds of queries the FBI was conducting into 702 data.
[14:36.540 --> 14:45.060]  We'll talk about this in a little bit, but the bill that actually got passed specifies a very specific kind of query that the FBI rarely, if ever, does.
[14:45.580 --> 14:46.460]  Prohibited it.
[14:46.660 --> 14:55.860]  But the GSRA is very notable for its wide and expansive definition of what a query is and how it constitutes search.
[14:56.540 --> 15:06.440]  It's also important to note that the GSRA included provisions amending the Electronic Communications Privacy Act, essentially bringing it up to the modern age of technology.
[15:06.440 --> 15:18.640]  It's a bill that is quite antiquated, and so the GSRA tackles that issue in probably the most thorough legislative language that we have available to us.
[15:18.780 --> 15:20.460]  I've read all 200 pages of this bill.
[15:20.560 --> 15:21.900]  I'm telling you, you have the...
[15:21.900 --> 15:24.120]  It's really cutting edge stuff.
[15:26.780 --> 15:30.720]  So that is why we illustrated with a picture of the whole enchilada.
[15:32.160 --> 15:39.700]  And so that was introduced in both houses with bipartisan co-sponsorship.
[15:40.280 --> 15:45.340]  And then in December 2023, the question was, what was Congress going to do?
[15:45.520 --> 15:48.980]  The relevant power was going to expire at the end of the month.
[15:48.980 --> 15:59.620]  And we had already successfully managed to block most of the ways that they had tried to pass a straight renewal of it before then, because that was what the administration wanted.
[16:01.020 --> 16:21.680]  In that month, the House Judiciary Committee, which, because of the Republican takeover of Congress, was now chaired by Jim Jordan, took the GSRA, took a bit of a scalpel to it, and cut out a number of the more controversial things like Executive Order 12333 oversight.
[16:21.680 --> 16:25.100]  But what remained was a lot.
[16:25.220 --> 16:28.840]  And there would still be, crucially, a warrant for U.S.
[16:28.980 --> 16:30.460]  person queries by the FBI.
[16:30.500 --> 16:45.060]  There would still be the Fourth Amendment Is Not For Sale Act, which is a very important measure that deals with government acquisition of data sets and purchase of data sets.
[16:45.060 --> 16:47.040]  The basic principle behind it.
[16:47.140 --> 16:51.600]  The basic principle behind it is that if the government would need a warrant to acquire that information on U.S.
[16:51.660 --> 16:59.740]  persons directly, and if instead they try to purchase that information, then they have to get a warrant to make that purchase.
[17:01.200 --> 17:11.140]  Obviously, as a standalone bill, neither the House leadership nor the administration had much interest in bringing it to the floor.
[17:11.140 --> 17:16.460]  But that was included in the Protect Liberty and End Warrantless Surveillance Act.
[17:16.680 --> 17:19.800]  The Judiciary Committee voted it out by 35 to 2.
[17:20.000 --> 17:40.200]  And now, the situation that the surveillance hawks had was they had an expiration of the authority in a couple of weeks, and the most acceptable legislative option that was available to them was this one, which went so much further than they ever wanted to go.
[17:40.200 --> 17:42.920]  So what were they going to do next?
[17:44.400 --> 17:46.520]  Here come the intelligence committees.
[17:46.940 --> 18:03.820]  Now, the intelligence committees in Congress, for those who don't know, they were set up after the Church Committee in the 1970s and the surveillance abuses discovered then, and the intent of the intelligence communities was for Congress to provide oversight on the intelligence community So that the
[18:03.820 --> 18:07.620]  intelligence community would not, thereafter, overstep its bounds.
[18:08.100 --> 18:17.580]  Unfortunately, what has happened in the decades since is that the intelligence committees have been almost completely captured by the intelligence agencies themselves.
[18:17.600 --> 18:26.300]  They conceive of their role as being to sell the projects of the intelligence committees to Congress and to get approval for them.
[18:26.300 --> 18:38.780]  We literally saw them giving testimony intelligence committee members and saying, you know, we have a problem here because we don't have good enough talking points yet from the administration or the intelligence committee.
[18:38.820 --> 18:40.560]  So how can we sell what you're doing?
[18:40.640 --> 18:45.260]  Because there's all these abuses that peaceful now know about and we don't have the talking points.
[18:46.480 --> 18:48.100]  They were rather stressed about it.
[18:49.060 --> 19:09.280]  So, they worked on an alternate set of legislative measures to hurriedly introduce in advance of the deadline, which they called the FISA Reform and Reauthorization Act, which would do essentially as little as they felt they could get away with and which would still renew the powers in question.
[19:09.280 --> 19:18.960]  Some of the lowlights of what they introduced was the totally real and not at all fake-ass warrant requirement.
[19:19.340 --> 19:27.600]  So, instead of having a real warrant requirement where the FBI, before they query the NSA's database on U.S.
[19:27.720 --> 19:34.080]  persons, they would have to actually get a warrant, they decided to do something somewhat different.
[19:34.080 --> 19:49.300]  They decided that their warrant requirement would cover only the specific queries that the FBI was conducting as part of a predicated investigation into a domestic crime.
[19:49.800 --> 19:57.880]  Now, for those who don't study this area, then that sounds like quite a lot of what the FBI ought to actually be doing.
[19:58.560 --> 20:05.420]  And so, people might look at that and journalists might look at that and go, okay, that sounds like a pretty big warrant requirement.
[20:05.840 --> 20:24.980]  The fact is, though, that when you look at the queries that the FBI has actually been conducting under Section 702, we and other civil liberties folks could only find two out of over 200,000 queries in the previous year that would be covered under that.
[20:24.980 --> 20:30.220]  Most of the querying that they're doing is not domestic evidence of a crime queries.
[20:30.820 --> 20:33.180]  And Stefan, you know a little bit more about that.
[20:33.280 --> 20:34.880]  Would you like to speak to that before I move on?
[20:35.580 --> 20:35.780]  Sure.
[20:40.800 --> 20:57.240]  So, generally, what we call backdoor searches should not be used to investigate domestic crimes whatsoever unless they are directly linked to a foreign agent power or a person outside of the United States that is not a U.S. person.
[21:00.160 --> 21:05.980]  So, it's important to keep in mind and to contextualize the statistic that Alex told you.
[21:06.240 --> 21:10.960]  Of the 200,000 backdoor searches, two were evidence of a crime.
[21:10.960 --> 21:12.780]  That's only in 2022 alone.
[21:13.060 --> 21:16.540]  If you go years back, two things emerge.
[21:16.800 --> 21:19.260]  First, those backdoor search numbers are higher.
[21:20.480 --> 21:26.480]  First, we get these numbers from disclosed Fisk opinions.
[21:27.040 --> 21:31.660]  These are generally classified and they're on a declassification schedule.
[21:33.060 --> 21:40.160]  So, we take these little tidbits that the secret court gives us to show these abuses.
[21:42.700 --> 21:46.780]  And so, it's important to just understand that this was called a reform.
[21:47.040 --> 21:49.340]  And news media outlets followed Sue.
[21:49.640 --> 21:52.620]  For the most part, they celebrated this.
[21:53.080 --> 21:55.500]  But it's important to understand that this did nothing.
[21:55.760 --> 21:58.040]  This is a nothing provision in a bill.
[21:58.980 --> 22:03.900]  And that's a lot of what we're dealing with, with intelligence committee members.
[22:04.140 --> 22:05.680]  And I can talk more to that later.
[22:06.020 --> 22:07.820]  But it's a lot of nothing.
[22:07.860 --> 22:15.380]  And it's a lot of fear-mongering, exaggeration, and hyperbole.
[22:15.940 --> 22:21.320]  It's important to characterize exactly the kind of lawmakers we're dealing with, these opponents to reform.
[22:22.580 --> 22:35.980]  And we want to specify that that is a problem with intelligence committee Democrats and intelligence committee Republicans, with certain honorable exceptions, like Senator Wyden.
[22:37.260 --> 22:48.120]  But for most of them, the imperative to defend the intelligence community runs far above the imperatives of party affiliation.
[22:48.120 --> 22:57.240]  Um, here's another favorite line of intelligence committee representatives, that this is not about spying on Americans.
[22:57.240 --> 22:59.140]  What is happening here is this.
[22:59.360 --> 23:12.880]  Under Section 702, the way that they construct it is that the subset of the database that is available to the FBI is the subset that relates to something over 250,000 targets.
[23:13.240 --> 23:17.100]  Those targets are always non-U.S.
[23:17.280 --> 23:17.720]  persons.
[23:18.120 --> 23:29.360]  But, the communications in the database are the communications of those targets with other people that may include U.S. persons.
[23:30.220 --> 23:43.240]  And as anyone who has looked at hop analysis goes, you can gather up an awful lot of people, innocent and guilty of various things, when you go merely one hop from a target.
[23:43.240 --> 23:57.380]  We also need to emphasize, contrary to what the intelligence community was likely to say during this debate, was that if you are a target under this, that actually doesn't mean that you've necessarily done anything wrong at all.
[23:58.280 --> 24:10.720]  All it means is that you are considered to be somebody who might have foreign intelligence information that would be useful for U.S.
[24:11.480 --> 24:12.920]  foreign policy interests.
[24:13.440 --> 24:27.040]  So, there is no reason at all, under current rules, why a target could not be somebody like Malayla Yousafzai, or, as happened notably, the Chancellor of Germany.
[24:28.120 --> 24:36.480]  It's not about them being terrorists or bad people, though some subset of them undoubtedly are bad people.
[24:36.660 --> 24:38.340]  Some of them are politicians, after all.
[24:39.060 --> 24:56.440]  But the way that the intelligence community likes to talk about it is, the targets are all bad people, and there is no real issue about incidental collection, because anyone communicating with those people can be assumed to be a bad person, and probably not a proper American either.
[24:57.080 --> 25:04.220]  And it appears that Mike Turner, the chairman of the House Intelligence Committee, was giving briefings.
[25:05.220 --> 25:10.080]  So, on the one hand, in his public statements, he was saying, this is not about spying on Americans.
[25:10.080 --> 25:21.440]  And in private briefings, he was saying, you know those protesters against American foreign policy in the Middle East, including protesters of what is happening currently in Gaza?
[25:21.520 --> 25:27.880]  This is a vital authority to be able to keep track of what those students are doing, is what I'm trying to tell you in private here.
[25:28.920 --> 25:37.800]  And we had good enough communications in with what was happening in some of those meetings to get information that that is what he was saying in private.
[25:37.960 --> 25:52.420]  So, it's not about spying on Americans, except when those Americans may have communicated with somebody who may be entirely innocent, or may be engaging in protest activity that Mike Turner personally doesn't like, in which case it's a whole different ball game.
[25:54.340 --> 25:56.740]  So, what was going to happen then?
[25:56.740 --> 26:13.460]  You had the Intelligence Committee bill, you had the Judiciary Committee bill, which was a reformist bill, and you had newly minted speaker, Mike Johnson, who is pictured here, who was a little bit of an unknown quantity.
[26:13.460 --> 26:22.160]  He had previously voted in favor of a warrant requirement, and he'd talked a good game about intelligence reform.
[26:22.480 --> 26:24.320]  But then again, he was now speaker.
[26:26.140 --> 26:38.340]  And so, he was extremely concerned to not annoy the hard right on whom his position depended because he had and has a wafer-thin majority.
[26:38.660 --> 26:43.640]  And it was the hard right who was mostly interested within his caucus in this issue.
[26:44.160 --> 26:50.940]  And so, he was very anxious to not come to a clear decision as to what bill would come to the floor.
[26:51.100 --> 26:56.080]  The only bill that had been reported out of a committee, at that stage, was the Judiciary bill.
[26:57.280 --> 27:00.500]  But nevertheless, he wanted to come to another arrangement.
[27:02.080 --> 27:08.480]  So, he momentarily seized on a strategy that is rarely used called Queen of the Hill.
[27:09.900 --> 27:13.340]  And that strategy enables him to not make a decision.
[27:13.380 --> 27:20.360]  It would enable him to bring both of the bills to the floor consecutively for consecutive votes.
[27:20.680 --> 27:31.180]  And then whichever one got more votes, whether it was more votes in general or more votes among Republicans was never quite clear, would be the one that he would send to the Senate.
[27:34.000 --> 27:38.180]  This was something that most people thought was kind of a shit plan, actually.
[27:38.700 --> 27:41.420]  It was only there to insulate him politically.
[27:42.660 --> 27:52.120]  So, he won a few friends with that as a proposal, but it was the thing that seemed like it would save him politically.
[27:52.120 --> 27:56.580]  So, he pursued that for a few days before it became clear that it wouldn't work.
[27:56.800 --> 28:11.820]  So, then, what they did was to hurriedly attach a very short-term straight reauthorization of FISA surveillance powers to the National Defense Authorization Act, which everyone knew had to pass.
[28:12.020 --> 28:15.000]  It's referred to as must-pass legislation on the Hill.
[28:17.200 --> 28:28.460]  And he and the administration went around scaring up legislators, saying, if this is not included under the NDAA, then we are going to go dark with our surveillance authorities.
[28:28.460 --> 28:31.120]  That, in fact, was not true in the slightest.
[28:32.520 --> 28:44.400]  Because there is a difference between the underlying statute being in place and the certifications from the FISC being valid that would allow the surveillance programs to continue.
[28:44.940 --> 28:54.160]  The surveillance programs had already been certified as they are annually the previous March, April, and that certification was still running.
[28:54.420 --> 29:01.840]  So, in practice, when you got down to it, nothing was going to happen if they did nothing by December 31st.
[29:03.200 --> 29:23.800]  But they did what they are very practiced in doing and caused enough fear and consternation among members of Congress who do not have a manic, nerdish need to know every detail of how these statues work and how these programs work that Congress did pass a short-term extension.
[29:25.980 --> 29:30.420]  And then there was quiet for a space of about half an hour.
[29:31.100 --> 29:33.520]  Or, in fact, really until February.
[29:34.780 --> 29:37.320]  Johnson still had the same political problem.
[29:37.520 --> 29:41.560]  He still had people who he was going to piss off no matter what he did.
[29:42.840 --> 29:51.760]  And he had a long-term problem that, honestly, the speakers going back for decades have always been friends to the intelligence community.
[29:52.220 --> 29:54.520]  Nancy Pelosi was one of their biggest defenders.
[29:54.520 --> 30:06.480]  It was expected that the House Speaker would do what was needful in order to renew surveillance authorities and continue the warrantless surveillance of U.S.
[30:06.580 --> 30:06.940]  persons.
[30:07.280 --> 30:20.100]  So even if, procedurally, the bill that was furthest ahead was the reformer's bill, there was still an expectation from the administration, in particular, that he would do otherwise.
[30:20.100 --> 30:23.400]  Um, so, what was he to do?
[30:24.040 --> 30:38.040]  He cuddled together with Republicans on judiciary and Republicans on intelligence, not really minding much about what Democrats felt about it one way or another, and he came up with a plan.
[30:39.400 --> 30:54.520]  Something called RISA or the reforming and RISA as a base of it contained a variety of superficial and shit things that did nothing to substantively reform intelligence collection.
[30:54.840 --> 31:06.800]  But, there was an agreement between the Republicans on judiciary and the Republicans on intelligence that each of them would be able to offer three amendments to the underlying meaningless nothing burger of a bill.
[31:07.840 --> 31:15.540]  Um, on judiciary, they would get to offer the warrant requirement, which was the centerpiece reform that we were chasing.
[31:15.680 --> 31:18.300]  They would get to offer the Fourth Amendment is not for sale act.
[31:18.300 --> 31:24.220]  They would also get to offer some pro-civil liberties reforms to processes at the Foreign Intelligence Surveillance Court.
[31:24.420 --> 31:30.100]  The Intelligence Committee in its turn would be permitted to offer amendments which would make matters worse.
[31:30.380 --> 31:54.340]  Um, they would be, um, allowed to offer an expansion in the definition of electronic communication service provider that would essentially enable, um, the government to secretly approach the owner of almost any commercial network and ask for the traffic over that network and have that be secretly
[31:54.340 --> 32:00.060]  provided to them with no ability to challenge or resist that request.
[32:00.640 --> 32:22.200]  Their, their, their second measure was that without any suspicion of any crime or any involvement in, um, activity adverse to the United States all people applying for immigration benefits to the United States would be permitted to have their details queried under Section 702.
[32:22.200 --> 32:24.300]  That's down to tourists.
[32:24.840 --> 32:32.080]  Um, and then on the collection side, so this is not the querying, this is what the NSA is permitted to gather.
[32:32.260 --> 32:43.160]  They would be explicitly allowed to collect, um, information on prescriptions and the manufacture of precursors to narcotics.
[32:43.440 --> 32:57.620]  Unfortunately, precursors to narcotics include a number of things that people actually need, um, including Sudafed and Adderall and, um, potassium permanganate which you may remember from high school chemistry lessons.
[32:58.060 --> 33:02.880]  Um, so all of that could be proactively surveilled under FISA.
[33:04.360 --> 33:10.640]  They brought this before, this proposal before the House Rules Committee which they need to do in order for something to get to the floor.
[33:10.980 --> 33:15.560]  And the result was bug fuck chaos.
[33:16.880 --> 33:19.280]  So, it started off calmly.
[33:19.910 --> 33:29.060]  The Judiciary Committee folks, Republican and Democrat Jordan and Nadler presented on the amendments they wished to offer as part of the bill.
[33:29.420 --> 33:40.040]  And the Rules Committee chair and the members were like, yeah, this sounds, you know, this sounds logical, there's a problem here, this would address these problems, um, so we see no problem with you offering point.
[33:51.580 --> 33:54.320]  There is supposed to not be a vote on any of these things.
[33:54.560 --> 33:59.820]  I cannot believe that you are actually allowing a democratic process to move forward.
[33:59.820 --> 34:07.680]  I am saying this in the voice of Henry Kissinger, but anyway, um, and they took their toys and they went home.
[34:07.900 --> 34:13.160]  The second half of the meeting didn't even happen, which was supposed to be the Intelligence Committee presenting their amendments.
[34:13.160 --> 34:19.020]  They were like, if you are not going to unilaterally shut down what judiciary is doing, we're not even going to play.
[34:19.240 --> 34:22.780]  Even if we agreed to this two days ago, we're just not going to do it.
[34:22.900 --> 34:23.640]  We're going to run out.
[34:24.020 --> 34:24.980]  And so they did.
[34:26.860 --> 34:40.300]  And Jordan was then in even more of a panic because this was his plan to politically insulate himself and it had just fallen apart spectacularly before anything made it to the floor and the deadline was still impending.
[34:41.960 --> 34:44.860]  But the chair of House Intelligence had a plan.
[34:45.900 --> 34:55.300]  It was a plan to scare Congress further because they weren't persuaded yet that these authorities needed to be renewed.
[34:55.620 --> 35:01.860]  And so they had to be told what their job really was.
[35:01.860 --> 35:04.500]  They had to be told what the threats really were.
[35:05.040 --> 35:15.360]  Consequently, he as Intelligence Committee chair took it upon himself to disclose classified information to the public and the press and to his colleagues.
[35:16.620 --> 35:29.820]  You may dimly recall around about this time that there was a lot of chatter in the press about Russian space nukes and the threat from Russian space nukes.
[35:30.300 --> 35:57.400]  And this only existed as a press story because Chairman Turner had decided to resurrect a security briefing that he had received more than a year prior relating to Russian nuclear-powered satellites and turned it into the prospect of an apocalyptic nuclear attack by the Russians in space that would knock out U.S. communications for up to a year.
[36:01.320 --> 36:09.380]  And he was hoping by this to add a few extra-crucial votes to the people who would support a FISA reform.
[36:09.900 --> 36:12.740]  And the press got died gigantically played.
[36:13.100 --> 36:20.880]  And there were artistic mock-ups like this one of threatening Russian missiles that never existed and may in fact never exist.
[36:21.540 --> 36:26.720]  Um, in all in the service of maintaining the government's surveillance authorities.
[36:27.440 --> 36:29.440]  I did promise you shenanigans.
[36:29.700 --> 36:31.140]  And here we have shenanigans.
[36:31.300 --> 36:32.600]  We'll get to the malarkey later.
[36:35.480 --> 36:46.220]  Meanwhile, in the Senate, they were sort of sitting and watching this craziness in the House and they were going, you know, thank God we don't have to actually do anything about this right now.
[36:46.500 --> 36:49.420]  Because nothing is going to happen until the House gets their shit together.
[36:49.740 --> 36:51.960]  And so we're just going to let it right.
[36:53.320 --> 36:54.460]  And that was March.
[36:55.780 --> 36:56.920]  Sorry, that was February.
[36:57.860 --> 37:03.880]  And then March came and now we were within one month of the new self-imposed deadline.
[37:04.580 --> 37:11.780]  And things started to move in the Senate, started to feel like the House was not in fact going to get it shit together.
[37:14.380 --> 37:24.800]  Senator Durbin, the Chair of Judiciary and Senator Lee, he's a Republican who we've worked with closely, introduced what they hoped would be a compromise proposal.
[37:25.220 --> 37:31.420]  They knew that Congress wanted a warrant reform if allowed to vote on it.
[37:31.420 --> 37:39.580]  they knew that the public which had been polled on it supported a warrant reform by margins of 75% to 80%.
[37:39.580 --> 37:46.260]  And I challenge you to find literally anything that the American public agrees on by those numbers.
[37:46.500 --> 37:56.620]  So they knew that it was popular, but they also knew that it was regarded as radioactive by the intelligence community itself because it might actually decrease their surveillance powers.
[37:57.240 --> 38:02.280]  so they came up with a compromise over what the FBI would do on querying.
[38:02.600 --> 38:10.320]  The one requirements that we had wanted was before you do a query you have to go get a warrant.
[38:10.980 --> 38:14.340]  And they were like aha but you don't necessarily have to do it that way.
[38:14.520 --> 38:21.120]  What if you were able to query and see whether there was a hit on your search string for a U.S. person.
[38:21.660 --> 38:31.460]  So you get a hit no hit response and then if you wanted to see the actual content not the metadata of the communication then you would have to go get a warrant.
[38:31.600 --> 38:32.000]  How about that?
[38:33.120 --> 38:58.500]  We were honestly pretty skeptical because restore the fourth includes some undisclosed number that is higher than one of actual computer scientists and their perspective was this what if you run repeated queries on the same subject you don't actually need if you run sufficient queries to get a
[38:58.500 --> 39:04.700]  warrant at all you can get substantively at the content of a communication if you simply go yes no
[39:24.640 --> 39:27.940]  is going to pick this up and resolve their political dispute that way.
[39:28.980 --> 39:30.040]  Tick tock.
[39:30.360 --> 39:33.940]  And we got into April and people starting to panic.
[39:35.020 --> 39:42.860]  And Speaker Johnson decided that he would have to actually decide between the competing sides.
[39:43.100 --> 39:46.220]  And his decision was to screw over the reformers.
[39:46.860 --> 39:52.880]  No longer would the reformers be permitted to offer three substantive amendments.
[39:53.260 --> 40:01.620]  Instead, the only substantive vote on an amendment to the underlying bill they would get would be the warrant requirement vote, which was the centerpiece, to be fair.
[40:02.940 --> 40:09.020]  But there was a lot of other stuff that we've previously talked about that already wasn't being covered in terms of potential reforms.
[40:09.300 --> 40:16.000]  Whereas intelligence would be allowed to offer whatever amendments they wanted, the three that they had previously been permitted to offer.
[40:16.740 --> 40:20.100]  And he was like, okay, back to the rules committee.
[40:20.300 --> 40:21.680]  It's going to go better this time.
[40:21.860 --> 40:23.000]  We need to get this done.
[40:25.040 --> 40:30.040]  So, rules passed this rule and then that meant that this bill would come to the floor.
[40:31.140 --> 40:35.780]  That appears to have been when the administration really woke up to what was going on.
[40:36.140 --> 40:38.400]  Because they were like, you don't understand.
[40:38.800 --> 40:46.320]  There is not supposed to be a vote by Congress on whether there should be warrantless surveillance on Americans.
[40:46.600 --> 40:47.900]  Surely you understand this.
[40:48.060 --> 40:49.280]  We've all understood this.
[40:49.420 --> 40:51.200]  It's been that way ever since 9-11.
[40:51.200 --> 40:54.480]  Why does it need to change now, fucking Speaker Johnson?
[40:54.560 --> 40:55.960]  What the hell are you up to?
[40:57.380 --> 40:58.500]  I'm paraphrasing.
[41:00.320 --> 41:13.440]  So, there ensued what we were told by 30 year veterans on the hill as being the most aggressive full court press of Congress by the administration that they had ever seen.
[41:14.540 --> 41:31.940]  FBI people, DHS people, NSA people, people with exciting badges on their uniforms, calling up people, meeting with people, having quiet talks with people, giving them secret FBI use cases of why these powers were so important.
[41:31.940 --> 41:41.000]  And telling them that at all costs, they had to vote against a warrant requirement in that amendment vote.
[41:41.280 --> 41:55.240]  The Senate majority leader, Senate minority leader, House majority, House speaker, House leadership, House minority leadership, and everyone possible from the White House on down.
[41:56.000 --> 42:02.740]  No word at this point over how many calls Biden individually made, but there were certainly a lot of people in the White House making calls.
[42:03.420 --> 42:04.700]  This was the result.
[42:08.120 --> 42:14.660]  The amendment was one vote ahead, 212 to 211.
[42:15.640 --> 42:33.600]  And then Speaker Johnson, seeing that there were 13 votes of legislators left to vote and not being confident that there were any more votes for his side, added his vote as the 212th vote on the no on the warrant requirement and banged his gavel and closed the vote.
[42:34.840 --> 42:38.580]  So on an even vote, the warrant requirement went down.
[42:38.840 --> 42:43.240]  And with that, the reformers' efforts collapsed.
[42:43.820 --> 42:46.560]  All of the Intelligence Committee amendments passed.
[42:46.940 --> 42:52.060]  The couple of meaningless amendments that they had allowed judiciary to offer passed as well.
[42:52.360 --> 42:59.040]  The underlying bill passed, which contains a lot of nonsense and unproductive stuff that harms America.
[42:59.040 --> 42:59.680]  But there you go.
[43:00.580 --> 43:02.380]  And it went to the Senate.
[43:04.080 --> 43:09.360]  And the Senate, as it says, caved to pressure from U.S. intelligence agencies.
[43:09.720 --> 43:12.820]  They were under this deadline of April 20th.
[43:12.900 --> 43:17.540]  As I've alluded to before, that doesn't mean that the programs don't continue to operate.
[43:17.540 --> 43:21.500]  By that point, they'd been re-certified for a further year to April 2025.
[43:22.220 --> 43:34.400]  Nothing was actually going to happen on April 21st that would harm U.S. national security, even if you assume that these programs of warrantless surveillance are critical to U.S. national security, which we certainly don't.
[43:34.960 --> 43:43.840]  But nonetheless, about an hour after the deadline passed, the Senate passed exactly what the House had passed.
[43:44.000 --> 43:53.840]  So there wouldn't be another cycle of it going back to the House or of there being a conference committee and that delay meaning that we would all be burned up by Al-Qaeda in our beds.
[43:53.960 --> 43:55.240]  Or no, it's no longer Al-Qaeda.
[43:55.720 --> 43:57.140]  Whoever the current enemy is.
[43:59.560 --> 44:03.160]  But, there was one small chink of light.
[44:04.280 --> 44:10.000]  And it was with deep pain and distress that I give credit where it is due.
[44:11.640 --> 44:25.160]  Rep Matt Gates of Florida, as part of the discussions, insisted that there was going to be only a two-year renewal of FISA powers.
[44:25.800 --> 44:35.560]  Which means that the moment that this coming election finishes, we are off to the races to prepare for the next round of this fight.
[44:36.180 --> 44:39.220]  And it's going to be extremely interesting.
[44:39.720 --> 44:51.640]  The discussions that we have had with many Democratic offices, where the burden of it was, well, they're leaning on us a lot and we feel that these powers are in good hands with President Biden.
[44:53.180 --> 45:09.900]  may be subject to a certain degree of reflection and revision in the years to come, given the unpleasant things that Trump can now do with this juiced up set of surveillance powers that he may be handed as of January.
[45:11.280 --> 45:14.820]  So, you can call that a silver lining, if you like.
[45:16.000 --> 45:31.020]  But we will be working hard, as we have worked hard in this cycle, on both sides of the aisle, talking to every office that we can, to try and convince them that this is a critical challenge.
[45:31.900 --> 45:34.960]  Can the intelligence agencies be reined in?
[45:35.280 --> 45:46.020]  Or will they continue to be in a situation where they have every communication available to them, of every legislator and everything that those legislators have done wrong?
[45:47.220 --> 45:53.680]  Or will they continue to be able to surveil us essentially at whim for any reason?
[45:53.720 --> 45:56.340]  Or will they need to get a warrant in the end?
[45:57.560 --> 45:59.460]  That is what we have been up to.
[46:00.120 --> 46:01.980]  We would appreciate your help.
[46:16.740 --> 46:20.620]  So, we have some time for questions, and we'd be delighted to entertain them.
[46:22.000 --> 46:24.140]  We got a question from the web.
[46:24.360 --> 46:25.440]  Would you like to go first?
[46:27.020 --> 46:27.720]  All right.
[46:27.840 --> 46:28.700]  Question from the web.
[46:28.940 --> 46:29.320]  Thanks.
[46:31.280 --> 46:44.100]  Have any of the proposals in Congress gone far enough to begin reforming the current regime of Harvest as much traffic as possible and only require any justification for human inspection?
[46:44.860 --> 47:07.140]  The only change that happened to collection as part of this was to expand what could be collected in relation to drugs and precursors, and to expand the permissions of the NSA to seize the information of electronic communications service providers.
[47:08.020 --> 47:13.520]  So, at the moment, collect it all, exploit it all remains fully in place.
[47:17.180 --> 47:18.220]  Hi, good evening.
[47:18.520 --> 47:38.200]  I've noticed that most of your focus are on agencies that have an investigative predicate as far as collecting on U.S. persons, but you did not address one agency of four regarding the FBI, DEA, Coast Guard that can actually invest U.S. persons on an investigative predicate.
[47:38.680 --> 47:45.740]  What research are you doing on DHS that can actually collect information per its mandate without an investigative predicate?
[47:46.440 --> 47:49.560]  Well, to be fair, the FBI can do that too.
[47:50.380 --> 47:59.020]  Most of what the FBI does is not full-blown, and predicated investigations based on probable cause.
[47:59.220 --> 48:07.840]  Most of what they do is what they call assessments, which do not require a criminal predicate, and which can be pretty free-ranging.
[48:08.280 --> 48:24.100]  But, we do do a bunch of work on DHS issues, fusion center issues, CBP, which comes under DHS, and the digital enhancements and surveillance at the border.
[48:24.100 --> 48:31.440]  So, DHS obviously plays an enormous role in the surveillance state.
[48:31.620 --> 48:41.580]  And given Trump's preference for DHS over FBI, we expect them to play a bigger role if he comes back into power.
[48:42.120 --> 48:46.560]  So, we don't discount DHS at all.
[48:46.560 --> 48:55.240]  It's just that DHS, in itself, does not have the ability to query the NSA database, and they complain about that.
[48:56.440 --> 48:57.320]  Thank you.
[48:59.860 --> 49:03.080]  I'd like to mention the Cybercrime Convention.
[49:04.380 --> 49:08.880]  And just for people who don't know about it, this is something that's been going on for about three years.
[49:09.800 --> 49:18.340]  It's supposed to get finished by the end of the second week of August, and it's going to be presented to the UN General Assembly in September.
[49:21.200 --> 49:23.520]  Some of it's a lot like the Budapest Convention.
[49:23.840 --> 49:31.660]  There are certain things that worry a lot of people about safeguarding human rights, but you can do things in other countries.
[49:31.820 --> 49:34.600]  You can make other countries hand over information.
[49:34.780 --> 49:37.420]  You can make companies hand over information, et cetera, et cetera.
[49:37.420 --> 49:39.900]  So, I didn't hear all your talk.
[49:42.080 --> 49:44.080]  How does that affect what you're doing?
[49:45.600 --> 49:47.400]  You want to take that, Stefan, or shall I?
[49:48.660 --> 49:50.480]  I will say, it might fail.
[49:50.700 --> 49:52.240]  It's not necessarily going to go through.
[49:53.720 --> 50:05.940]  So, the question of data access requests is an important one, and there have been substantial international discussions on this.
[50:05.940 --> 50:12.520]  I remember the dispute over the Cloud Act and Microsoft Ireland, which relates heavily to this.
[50:12.700 --> 50:24.560]  The focus of this talk is intentionally narrow about a particular fight in Congress, albeit about a particularly important set of surveillance laws.
[50:26.180 --> 50:31.580]  But the Cybercrime Convention discussions are important.
[50:31.580 --> 50:41.560]  Our focus is more domestic than in the field of international policy, so we have not directly been involved in those discussions.
[50:41.920 --> 50:44.080]  But that does not mean that they're not important.
[50:44.360 --> 50:47.520]  It's just that every organization has to have a focus of some kind.
[50:48.580 --> 50:48.940]  There's a lot of applause.
[50:48.940 --> 50:49.020]  Thank you.