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Discover our mission: IC principles, history, and success stories. And this is a very special day for us at the Newseum as we launch our Newseum Institute, officially tomorrow, but the first — very first program of our institute, which will be really devoted to civil education of the public about very important First Amendment issues, will be a collaboration of all of our educational outreach programs.
And what better way and what better topic — nothing could be more topical or informative and important to us all as Americans as the current events involving NSA surveillance leaks. And before introducing you to the president of the American Bar Association, I do want to say a special thank you to my dear friend, Harvey Rishikof, who will be moderating the program this afternoon.
When Harvey and I held that position, it was called administrative assistant the chief justice. So they waited till we got out of there and then upgraded it to counselor, which sounds much more important and — the same job though, nonetheless. And we want to get right to it. And thanks for your introduction. And a special thanks to Robert R. McCormick Foundation for its help in presenting this program here today and for the ABA Standing Committee on Law and National Security, which is the oldest committee at the American Bar Association and, of course, the organizer of this event.
We are all aware that, as time goes by, our lives are under increasing surveillance. And anything in excess of acceptable is, a priori, an infringement of our Constitutional liberties.
As lawyers, we should not be willing to accept sound bite Constitutional analysis. We should also not be too quick to applaud our ability as a society to obtain pictures of the Boston Marathon bombing suspects within hours or even minutes but at the same time condemn more sophisticated surveillance. I, for one, am not persuaded that the analysis of what kind of surveillance is legally improper depends on the method used to obtain the information or even the of gigabytes obtained. We are a nation of laws.
Consequently, we should be concerned with whether checks and balances are in place, who authorized the surveillance, under what authority, has that authorization been reviewed to determine whether it was lawful? American lawyers have the obligation to be heard on matters affecting what we do to protect our rights and liberties in the context of assuring the security of our society and our nation. Our membership, like all of you, is involved in a learning process. And now it is my pleasure to turn this program over to its organizer, Harvey Rishikof, who will serve as our moderator.
Thank you. I have a few housekeeping rules that I have to get out of the way. The first is that we are using this a — the Newseum, and we are going to be using all the modes of communication. So we have a Twitter. And I encourage everyone to tweet us.
Just pass them out to the end, and we have people who are going to be collecting them. And I have to thank our sponsors, which also is the Medill group from Northwestern and the McCormick Foundation, who also have been with us and able to put this forward.
National security and protecting privacy are becoming the central interest of the emerging technological revolution. And the question we have is how democracies and emerging democracies create frameworks for these vital interests.
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It has clear implications regarding the news media. Who and what is a journalist in the 21st century?
How do journalists deal with circumstances such as the PRISM disclosure and the Wikileaks massive document, quote, dump, close quote, that circumvented traditional news organizations? Where can the public find accurate information on both disclosures and government response? And if you — for the audience, they have the — they have the backgrounds of the panelists.
Beside him is Joel Brenner. Joel comes to us — is now in his own private practice. He also is a n author. He was a senior counsel at the National Security Agency; he was also, until — from tohe was the head of U. Sitting beside him, if I can see, is Kate Martin. Kate ed, as you know from the program, is the director of the Center for National Security Studies.
She testifies quite regularly on the Hill on these and related issues. On his right is Ellen Shearer.
It has some excellent chapters on — if someone was a journalist and wants to understand what the issues are in national security. She is also a professor and is teaching — I think her full title is the William F. Thomas professor at the Medill School of Journalism, Northwestern. Before ing the faculty, she has over 20 years of experience in news industry and was a senior editor at NewsDay, and also at Newhouse News Services.
Beside her is Spike Bowman. He was most recently the deputy at the National Counterintelligence Executive. And I save — last is Bob Litt. I particularly want to thank Bob for coming.
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Bob is also someone who I was — had the honor to serve with in government, and Bob is the general counsel of the Office of Director of National Intelligence. He served as a member of our advisory committee to the Standing Committee on Law and National Security and he also served as deputy assistant attorney general in the criminal division and was what we called the PADAG, the principal associate deputy attorney general, for the Department of Justice. So with that is the opening.
Thanks, Harvey. I particularly want to emphasize that I hope you come away from this with the understanding that neither of the programs that have been leaked to the press recently are indiscriminate sweeping up of information without regard to privacy or constitutional rights or any kind of controls. In fact, from my boss, the director of national intelligence, on down through the entire intelligence community, we are in fact sensitive to privacy and constitutional rights. After all, we are citizens of the United States.
These are our rights too. These programs, in fact, represent a careful effort to achieve the goals both of national security and of protection of individual rights. And they do this by a combination of restrictions on what kind of information can be collected, restrictions on how that information can be kept and used and multilayered oversight procedures.
I want to start discussing them by making the point that in order to target the s or the phone calls or the communications of a United States citizen or a lawful permanent resident of the United States, wherever that person is located, or of any person within the United States, we need to go to court, and we need to get an individual order based on probable cause, the equivalent of an electronic surveillance warrant.
That does not mean and nobody has ever said that that means we never acquire the contents of an or telephone call to which a United States person is a party. Think of a wiretap in a criminal case. This is just a necessary incident. What we do is we impose controls on the use of that information. And under that — this statute, we collect telephone metadata, using a court order which is authorized by the Foreign Intelligence Surveillance Act, under a provision which allows a government to obtain business records for intelligence and counterterrorism purposes.
Now, by metadata, in this context, I mean data that describes the phone calls, such as the telephone making the call, the telephone dialed, the data and time the call was made and the length of the call. These are business records of the telephone companies in question, which is why they can be collected under this provision.
Despite what you may have read about this program, we do not collect the content of any communications under this program. We do not collect the identity of any participant to any communication under this program. And while there seems to have been some confusion about this as recently as today, I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information. When the court approves collection under this statute, it issues two orders.
One order, which is the one that was leaked, is an order to providers directing them to turn the relevant information over to the government. Some people have expressed concern, which is quite a valid concern in the abstract, that if you collect large quantities of metadata about telephone calls, you could subject it to sophisticated analysis, and using those kind of analytical tools, you can derive a lot of information about people that would otherwise not be discoverable.
The metadata that is acquired and kept under this program can only be queried when there is reasonable suspicion, based on specific, articulable facts, that a particular telephone is associated with specified foreign terrorist organizations.
And the only purpose for which we can make that query is to identify contacts. All that we get under this program, all that we collect, is metadata. So all that we get back from one of these queries is metadata.
Each determination of a reasonable suspicion under this program must be documented and approved, and only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism-related queries. In fewer than identifiers were approved for searching this data. Nevertheless, we collect all the data because if you want to find a needle in the haystack, you need to have the haystack, especially in the case of a terrorism-related emergency, which is — and remember that this database is only used for terrorism-related purposes.
And if we want to pursue any further investigation as a result of a that pops up as a result of one of these queries, we have to do, pursuant to other authorities and in particular if we want to conduct electronic surveillance of any within the United States, as I said before, we have to go to court, we have to get an individual order based on probable cause. The other program is very different.
PRISM is actually the name of a database. The program is collection under Section of the Foreign Intelligence Surveillance Act, which is a public statute that is widely known to everybody. This permits the government to target a non-U. It was totally outside of the supervision of the FISA Court and totally within the prerogative of the executive branch. So in that respect, Section is properly viewed as an expansion of FISA Court authority, rather than a contraction of that authority.
And there is a specific provision in this statute that prohibits us from making an end run about this, about — on this requirement, because we are expressly prohibited from targeting somebody outside of the United States in order to obtain some information about somebody inside the United States.
We cannot target the out — the person outside of the United States to collect on Spike. In order to use Sectionthe government has to obtain approval from the FISA Court for the plan it intends to use to conduct the collection. This plan includes, first of all, identification of the foreign intelligence purposes of the collection; second, the plan and the procedures for ensuring that the individuals targeted for collection are in fact non-U. These are referred to as targeting procedures.
These procedures, which are called minimization procedures, determine what we can keep and what we can disseminate to other government agencies and impose limitations on that. And in particular, dissemination of information about U. And again, these procedures, the targeting and minimization procedures, have to be approved by the FISA court as consistent with the statute and consistent with the Fourth Amendment.