>> It's my great pleasure today to have our talk cohosted here
with Mauer, and I thank Donna and everyone here on that
in helping with all of this.
I think it's a nice vibration.
And we brought in a suitably distinguished speaker
in Peter Swire.
I'm not going to go through all of his credentials
but just mention a few high points.
The Holder Chair of Law and Ethics
at the Georgia Tech Scheller College of Business,
senior fellow with the Future of Privacy Forum,
and then I think very notably under President Clinton,
the Chief Counselor for Privacy and the first person
with U.S. government side responsibility
for privacy policy.
And a number of other credentials
that I won't go through.
But I'll just ask you at this point, to please join me
in welcoming Peter before he talks.
[ Applause ]
>> Everybody let me just do a sound check.
Is this okay in the back of the room?
Can you hear me okay?
Okay. That's great.
It's a pleasure to be here today.
I first came to Indiana in 1990 when I was on the road to trying
to become a law professor.
And it's been a place that I've looked
to as a great big [inaudible] school for many years.
I taught at Ohio State for sixteen years.
Which is a different shade of red.
But the land grant universities
and the service they provide is something that's really
important to our states.
I want to just get a .
. . I'm going to ask whether your background is mostly in law
and mostly in technologically or mostly something else?
Just to get a sense.
Mostly in law would say?
Just a little less than half.
Mostly in technology.
About half the room.
Need one more?
Mostly something else?
[Laughter].
Okay. Good.
This paper is going to be
about surveillance including surveillance
under section 7 which [inaudible].
This is going to be more on the law side.
But I think it'll be accessible to people
with a tech background.
Later this afternoon with Scott Shackelford's group,
I'm going to be giving a talk on the nut, so the tech people,
you know the OSI stack, the seven layers, the OSI stack?
Right? Now your tech people.
Yes. I'm doing a project that's going to talk
about the non-code layers of the stack and how that applies
to organizations and governments
and international issues for cybersecurity.
That'll be more
of the cybersecurity technology side of myself.
And I do have an appointment with the college of computing
down near Georgia Tech, so I try to move
between these worlds to some extent.
This project is called understanding why citizenship
matters for surveillance rules.
It's co-authored with one of my colleagues
at Georgia Tech, named Jesse Woo.
And it starts with an issue.
So, is it lawful and is it a good idea,
[inaudible] defensible, to have different surveillance rules
for a nation's own citizens than for citizens of other countries?
Can we discriminate based on nationality?
And the paper takes on this topic
which hasn't been addressed very clearly before.
And we say, yes.
Now there's the people who have very different views.
So, as a matter of positive law,
we have the U.N. Special Rapporteur for privacy.
His name is Joseph Cannataci, distinguished professor.
And says U.S. laws and practice is permitting a lower level
of privacy protection for people who are not U.S.A. citizens
or residents, are incompatible with the U.S.s obligation
under international law.
In other words, they're saying the whole FISA structure is
illegal under international law.
And we're going to call
that legal approach a universalists legal position.
People don't discriminate based on national.
As a normative idea and Martha Nussbaum is somebody associated
with this sort of broader theme of cosmopolitanism.
And she says that if we really believe
that all humans beings are created equal and endowed
with certain inalienable rights.
We are morally required to think about what
that consents requires of us,
for us and the rest of the world.
And more specifically, the universalists,
the people who think no discrimination often make a
normative argument.
And they favor the same treatment of all nations.
So, Cannataci, again, the U.N special Rapporteur is having
conferences all over the world and really pushing this.
Says that especially when it comes to surveillance carried
out on the internet, think Snowden, all that surveillance.
Privacy should not be a right that depends
on the passport in your pocket.
And that normative view is the cosmopolitan.
People are people, inalienable rights.
And they should be protected the same.
He's from Malta.
He doesn't want people from Malta treated worse
than the people from the United States
when it comes to surveillance.
And there is a sympathy for that.
You know, we're here in the middle of the United States.
But if you were subject to lots of surveillance
from other countries and they were targeting
because you're an American you might not really like that.
So, the outline of the paper is, we say that the lawfulness
and legitimacy of these different rules
for what we call target nationality,
is an important but overlooked issue.
And we're talk about very mutual legal assistance
where I'm doing a lot of research right now.
And about FISA.
We're going to go through the positive law.
And we're going to see that both U.S. and German
and other democracies actually have very different rules based
on target nationality.
So, what is shows that Germany even,
which is often pushed the universalists idea has very
different rules for German citizens than non-Germans.
And then we're going to have something that's really
developed, I think new in this paper, I think.
I haven't been able to find anywhere.
And again, in one other place and they hadn't.
We're going to see it
as two different normative justifications.
So, whether you like contract theory,
utilitarianism, you win both ways.
An argument for the alternative by lawyer.
So, social contract theory.
And if you think of Locke law and those people,
the basic idea is there is a difference about law
within the social contract.
That's what the U.S. constitution cries.
And the state of nature.
And we're going to treat foreign enemies, at least,
differently from our citizens.
There's going to be different rules when you're at war
than when you're back at home in peace time.
And a different kind of argument,
is the utilitarian argument about outcomes.
And we say the stricter rules
for domestic surveillance is crucial
to preserving democracy and the rule of law.
Who's in favor of democracy and the rule of law?
Only half the room raised their hand.
What do you .
. . [laughter] .
. . convince you that democracy is worth preserving
at the end of the hour.
And the fact here is think about what the Watergate break in did.
It was a break in to the opposition political party.
It was secret criminals for the President breaking
into the opposition political party.
We have a lot of rules to try to stop that kind of stifling
of domestic opposition.
And that's a reason to be extra careful when it comes
to domestic surveillance.
Because that's what's going to keep democracy going.
So, it's based on the where the constitution applies.
It's based on keeping democracy for those reasons,
the paper says, we should have different rules.
So, that's the outlook.
And if we have questions as we go along, clarification,
please don't hesitate.
Terminology in the paper.
We use a term target nationality.
The nationality of the person
who is the target of surveillance.
Are you a U.S. person?
Are you a French person?
Whatever. We have different rules and we come up with .
. . we call it citizens and near citizens.
People with a strong connection, let's say, the United States.
The U.S. persons, which is a legal term in our .
. . are people familiar with U.S. person and FISA?
Have people heard of section 7.02
of [inaudible] before prism, upstream?
Sort of? Not really?
Okay. Sort of, not really.
So, in FISA, which is foreign intelligence surveillance,
that's our system for looking at Russian agents,
for instance, the United States.
And it includes .
. . U.S. persons includes U.S. citizens,
we're stricter on that.
And we're stricter for people with a green card,
permanent resident aliens.
Also, the U.S. constitution generally applies to people
who happen to be in the United States.
I had a student last night asking, hey, you know,
I'm an Indian national.
When I'm in the United States does the Fourth Amendment stop
the police from breaking into my dorm room?
And the answer is yes.
So, if you're in the United States you get
constitutional protection.
When there are citizens and near citizens with strong ties
to [inaudible] everyone else is a non-resident.
They don't have a strong connection.
They're not here in the United States.
Those are non-residents.
And our claim in the paper is this lawful
of normatively defensible
to apply different rules based on target national.
That's the claim for the paper.
So, one slide is mutual legal assistance.
We have a project in Georgia Tech
on cross-border access to data.
And the basic .
. . the URL.
The basic thesis of that project which we have tons of stuff
up on [inaudible] here is
that we're facing what's now called the globalization
of criminal evidence.
And the way to think about that is routinely you have evidence
for criminal case that might be emails, or Facebook posts,
or other kind of communication.
And they often stored in the cloud.
Right? Isn't most of your phone stuff stored in the cloud.
It's often stored in a different country.
So, if the police want to investigate a local crime
in Bloomington, your stuff might have bounced through Europe
or Asia, or who knows what.
So, when we think about what the rules are going to be
for different countries, getting the data,
let's think about the United Kingdom who wants evidence held
by Google, or some other U.S. cloud provider.
And it's stated that U.K. citizens,
they sort of understand why they think
that maybe they have a shot at that.
If it's data on a crime committed in the U.K. by persons
who is a resident in the U.K. we think we see why the U.K. has a
pretty strong claim, hey, Google give us this data.
But if it's somebody who lives in India, who has never been
to the U.K., they might say to Google .
. . Google might say, what the heck are you asking
for this for?
This isn't your email.
You don't have some basis for fishing around in that.
You know, stick to your people and don't go
after people from other countries.
And so most of the reform proposals,
dealing with all these cross borders closed,
treat the later differently.
There's a weaker U.K claim.
The U.K. doesn't really have jurisdiction probably
over that person.
And even if they did,
they probably don't have a strong choice of law argument
when they select what rule to apply.
And so, we would expect for these, sort of,
law enforcement investigations going cross border
that there is different treatment based
on target nationality.
In this situation, the U.K. gets greater access to your papers.
In a minute we're going
to see maybe the U.K. gets greater access
to non-U.K. persons.
But the point being that we have important involving area of law
where the nationality, the target matters.
Here's FISA, Foreign Intelligence Surveillance Act.
So, since FISA was set up 1978,
there's been different legal treatment for U.S. persons,
citizens and residents and for non-U.S persons.
This is FISAs or surveillance done in the United States
in order to go after foreign intelligence goals,
agents of the foreign powers.
Section 702 of FISA, the prism
and UPSTREAM program were passed in 2008.
And provide less strict rules
for surveillance, easier surveillance.
If you're not targeting a U.S. person
and you're not targeting a person in the U.S. So,
if there is somebody over in the other country,
who is not a U.S. person.
We're doing a communication between Iraq and Syria,
it's easier to grab the data about Iraq for .
. . to Syria communication.
But if it's back home and it's a U.S. person
or if it's a U.S. person in Iraq,
they have to be more careful.
So, the basic point of this structure is we have clear law
that says we're stricter protections for U.S. persons,
not as strict for foreign people who are overseas.
Which violates Joe Cannataci, U.N. Rapporteur views
of how the world should operate.
Now this became very public in Europe and other places
after Snowden disclosed the Prism program.
And another program called UPSTREAM.
And so in Europe which has strict privacy rules,
they been going nuts for five years about section 702.
They think it's terrible.
Really bad.
Europeans being treated as less than full citizens and getting
to be the target of surveillance.
So, there's anger at the U.S. surveillance system by the NSA.
And this anger was quoted, and I think it's fair to say
that it was important to the European Court
of Justice decision in 2015.
People heard of the safe harbor that got struck
down in Trump versus Facebook.
Sort of a court of the new realm.
The follow-up decision of Trump
versus Facebook just went public this week.
It will be announced on Tuesday of this week.
So, look for your newspapers to see if they going
to cut off more data close between Europe
and the United States.
But the concern for their Supreme Court is
after there's too much NSA surveillance of EU persons.
And they might drastically affect data flows between U.S.
and Europe because of that.
And the European court came to the view
that the U.S. is discriminating here against EU persons,
that might be a reason for cutting off data claims
between Europe and the United States.
So, if the U.N. Rapporteur's positions happened
and was adopted by the EU court, we could see a big disruption
of global data for us.
If it turns out our view is correct
and we can defend the two tier system,
then they wouldn't have the same basis
for cutting off data flows.
So, that's a reason to get off paper route
and maybe make it convincing.
If we can, so we don't disrupt global data flows.
I'd rather not disrupt global data flows.
But that's [inaudible] argue.
Okay. So, we see that these are current issues.
Target nationalities very much in debate.
Our two on the paper is what about the lawfulness.
Is it as a matter of law okay
to treat different countries differently?
And we'll talk about the Universalist's legal position.
They think it's a bad idea.
And we'll look at U.S. law.
It allows to two tier treatment.
And the German and how their national laws allow a
two-tier treatment.
The Universalist's position starts
with the international covenant on signal and political right,
which the U.S. and many other countries have adopted.
It says no one shall be subjected to unlawful
or arbitrary interference with his privacy, family,
home, or correspondence.
Think of it as sort of like the Fourth Amendment.
You should be securing your persons, papers, and effects.
The intent of the drafters, say the Universalists,
is to prevent discrimination based on a line
which in the treaty called national or social origin.
So, there's this U.N. thing that the U.S. has signed.
And Cannataci thinks the U.S. is bound in that way.
It points at other legal sources that are in the paper,
the European convention on human rights,
the European Union Charter, which is binding law
under the Lisbon treaty for Europe
and the German constitution.
So, the paper goes through these other sources of law
for why it might be illegal to have a two-tier treatment.
But the U.S. positive law supports a distinction.
It supports a two-tier approach.
The ICCPR, that treaty that I just said,
the text supports the view but there is no extraterritoriality.
It consists that U.S. government position
since the thing was drafted and amended is on that side.
Eleanor Roosevelt said it was an extraterritorial.
And she's a hero to people in these Civil Rights community.
And so, just as a matter of lawyering, my view is similar
to the U.S. government's view,
which is the ICCPR is not a plot.
There's a Supreme Court case
from post-World War II called Eisentrager.
That supports the idea that the U.S. constitution protections
don't apply to non-U.S. people outside the United States.
The Fourth Amendment case
of Verdugo-Urquidez supports the view
that Fourth Amendment protections are different
for U.S. persons abroad than for non-U.S. persons abroad.
And we have all that activities under FISA and the court,
foreign intelligence surveillance court.
And since, as we said, since the start
of FISA there have been different rules by case
on target nationality.
And we have very recent court approval for this.
It was a court earlier this year, a FISA court,
earlier this year had a 702 decision
about what's called about collection.
So, if Peter Swire is the target,
if it's about Peter rather than to and from Peter,
if it's about Peter you do the collection.
And for the about case,
the court said it violated the Fourth Amendment the way it was
being implemented.
That there were too many American communications
that were being intercepted.
That Fourth Amendments weren't protected for U.S. persons.
We're going to apply it more strictly.
So, we're .
. . you could have about collections for foreigners,
but you can't have about collections for U.S. persons
and they stopped the program.
Okay. So, there's plenty of U.S. law
that suggests we share is okay.
Well, same thing for Germany it turns out.
So, Germany, post Nazi, post Stasi,
worried about surveillance is usually seen
as the strictest country in Europe on privacy.
They were pushing for the ICCPR to get reformed a few years ago.
So, they thought this was the neat.
They wanted a one tier system.
There is a senior German academic who has an argument
about the German constitution.
It says it has to be a one tier system.
But when you actually look
at the German surveillance law, it's just like 702.
And one of the parts of doing this scholarship is you get
claims from Europeans sometimes criticizing the United States
as the worst people ever.
We do really, really bad things.
And one of my jobs for the last [inaudible] years has been
to point out, by the way that's your law, too.
So, in this Facebook and Trump case that's coming
out on Tuesday, I wrote a 300-page testimony.
Go read it tonight.
[Laughter] Which basically, the summary of the testimony
as an independent expert for the court is
that the U.S. surveillance legal protections are stricter
than anything they have in Europe.
So, if they say, we're inadequate, they're worse.
And maybe you should notice
that before you just say the U.S. is terrible.
So, that's that testimony.
So, in this case we're saying .
. . you know, the Germans often say, 702 is terrible
but the German surveillance law has special prohibitions
on targeting German citizens in the law, statutory law.
It has more oversite if the communication is destined
for Germany than other kinds of communications.
And the German law has broader powers to go after foreign
to foreign, Iraq to Syria, communications.
Just like 702.
And when you look at the Universalists advocates,
they say, oh, and sort of too bad.
But France does the same thing.
And the Five Eyes, which is UK, Canada, New Zealand, Australia,
and the U.S. All do the same thing.
And one of the most .
. . one of their best advocates
for the Universalists view has admitted neither EU law not the
European convention on Human Rights appears to constrain.
EU members take surveillance
of foreign nationals beyond their border.
So, if you take the experts who think
that stuff is terrible they end up saying, oh, we do recognize
that the other democracies have done the same thing.
So, they're going to get really upset about the U.S. approach.
Notice that the other democracies have made the
same choice.
And I think there are good reasons for that and we're going
to go into those reasons in a minute.
Any questions so far?
So far the view is Europe is doing it.
The U.S. is doing it.
It's well established.
Don't be shocked.
It's the way it's always been.
Okay. Part 3 is the principled case, I hope,
for stricter surveillance protections
for citizens and near citizens.
And we're going to do social contract and utilitarian.
And the claim is this paper doesn't try
to specify exactly the context
where surveillance rules should vary.
It doesn't say how different they should be.
But the focus is
on the developing the normative argument
for ever having different rules.
We're saying it's not invidious discrimination that's
presumptively terrible when you have different rules.
Two tier makes sense, normatively.
What you want is a two-tier system.
Here's the social contract theory.
So, John Locke and other social contract theorists
but we pulled Locke in detail.
Makes a big difference between those of us who entered
into a constitution, a social contract.
We get rights and responsibility.
We get to be drafted into the military
and we get the Fourth Amendment.
And the state of nature.
Those things out there where people haven't agreed
to be part of our community.
And they don't get all these constitutional protections.
And to see how this is,
let's think about whether we should have full U.S. legal
protections like the Fourth Amendment during the state
of war.
So, when I was working on an earlier round of work
in this area, one of my sons was a U.S. military officer
in Kandahar doing motorized infantry patrols
across Kandahar.
And I was worried about IEDs.
As you would be if you were a parent
or a family member, something like that.
I wanted to surveil the heck out of IEDs.
I didn't want there to be a Fourth Amendment warrant
procedure before we found
out if [inaudible] intelligence was happening.
I wanted the U.S. Army to have awesome surveillance
capabilities so the IEDs wouldn't go off.
That was selfish, but by the way,
that's what happens in wartime.
You don't like your people getting killed.
Also, it can't even have a judicial mechanism
to apply the Fourth Amendment standards in a war zone.
There's no judge with jurisdiction over in Kandahar.
You know, the Northern District
of Jugeorga [phonetic spelling] doesn't have jurisdiction
in Kandahar.
So, we literally have no way to apply the same rules.
And it would be nuts to be that restrictive during war time.
Two tier standards at home.
Domestically U.S. persons stricter, in the middle
of Kandahar, not so strict.
Do surveillance, go do it.
Well, you start with that easy case, or extreme case.
And then you think about it's not just state of war.
What about foreign adversaries, which we think Russia
and Crimea is having, doing something wrong
when they went Crimea.
We have to apply all the same standards before we do
surveillance there.
That would really undermine our national security efforts.
We do intelligence against foreign adversary.
Well, we also do intelligence about foreign affairs.
We have allies and we've caught spies from those allies.
And by the way, we've spied on those allies.
We got caught spying on Merkel.
Israel got caught spying on us with Jonathan Pollard.
So, there's a lot of reasons you keep an eye
on foreign affairs even for your friends.
And there's some legal rules
from the last administration called PPD-28,
which says in general we're going
to treat non-U.S. and U.S. similar.
But, it says, there's national security limits.
So, we try to treat people under the same standard,
but we reserve the right to do it differently when we need to.
And the FISA rules, which is about agents
of foreign powers working for other countries.
The FISA rules are more permissive.
And it's only when you get to domestic law enforcement,
you're really in full Fourth Amendment land and that's
where the rules are strictest.
Probable cause, warrants with the judge,
and all that kind of stuff.
So, we see the spectrum.
I'm working on pretty graphics that we don't have yet.
A spectrum where domestic law enforcement, same standards
for everybody, is the exception in a dangerous world
where we have lots of other foes and lots of other things we need
to do in foreign affairs.
So, the conclusion from this is social contract theory,
how we think about our constitution
and our national security interest,
and pervasive historical practice.
Because people have been spying since at least [inaudible]
who said really do it a lot.
All of that leads us to view this as normal
and justifiable to protect ourselves.
And we're not going to tie both hands behind our back
and treat everything like a local police thing.
We're going to have more surveillance overseas
against dangerous parts of the world.
That's just slible [assumed spelling].
Take a sip of water and pontificate more.
So, when I was doing graduate work
in political theory it sort of .
. . social contract person or you could be a utilitarian based
on consequences, not based on rights.
And here's some other reasons I support different rules.
Well, Locke and Madison and lots of other people since then,
think there needs to be really good checks
and balances against tyranny.
That's the federalists paper.
That's core to the U.S. system of government.
From the paper, this is our attempt
to summarize why unfettered surveillance domestically
presents grave threats to the system of checks and balances.
Unfettered surveillance, if it were done
by the current government or any current government.
The government can surveil and take action
against political opponents.
Government isn't going against free press.
It can go against judges.
It can go against Senators and Congressman.
And it goes to anyone else who stands
against unilateral government power.
So, we live in a world
where there's very powerful surveillance tools that exist
for the FBI domestically.
If you unleashed all of that against domestic opposition,
you're running a terrible risk.
And the U.S. Supreme Court has agreed.
So, early 1970s case during the Watergate debates,
a Supreme Court said, history abundantly documents the
tendency of government.
However, benevolent or benign its motive,
to view with suspicion those
who most fervently dispute its policies.
The Fourth Amendment protection becomes more necessary
when the targets of official surveillance may be those
suspected of unorthodoxy in their political views.
So, deep in the Constitutional structure is an awareness
that governments tend to go after their opponents
and awareness we have to bolster the protections exactly
at that moment.
So, Utilitarianism is about outcomes or pragmatism.
Because avoiding this bad outcome helps
to prevent a decent into tyranny.
So, constitutional scholar David Gray say Maryland says,
the Fourth Amendment is linked
to the collective projects of self-governance.
The Fourth Amendment has limits on search by the government.
It's a collective project.
Not just an individual's right.
Here's some collective outcome.
Let's protect the rule of law.
Let's minimize the risk
that democracy will slip towards authoritarianism.
And so our argument it turns out supports the view
that individual rights will be better protected where the rules
against domestic surveillance are especially strict.
So, if you're a rights person, and you want to be
on Joe Cannataci for the best darn protection
of individual rights and the privacy you can,
then we're saying you should love stricter rules
against domestic surveillance because that's how we're going
to keep democracy in the rule of law.
So, properly understood, more rights enhanced
with this approach even though it seems
like we're undermining the rights
of people who aren't Americans.
Here's some supporting quotes.
Frank Church, the Church Commission,
people who have heard
of the Church Commission after Watergate.
That's sort of out there and you're just ready to be okay.
I know that the capacity is there
to make tyranny total un-American.
He said this after doing the huge investigation
to what the NSA, and CIA,
and U.S. Army were doing domestically.
We must see to it that this agency and all agencies
that possess this technology operate within the law
and under proper supervision.
They created this in-house Intelligence
Committee [inaudible].
So, that we never cross that abyss.
That's the abyss from which there is no return.
Because once you've lost and the authoritarians put themselves
in power, you stop having elections.
And that's the abyss we're trying to avoid.
Here's a quote from the [inaudible] President Obama
after Snowden created a five-person group called the
Review Group on Intelligence and Communications technology.
Often called the NSA review Group.
I was one of the five people on that group.
The one with Cass Sunstein, Richard Clarke,
Michael Morell, and Geoffrey Stone.
So, in that report there was a sort
of preview of this argument.
By it's stricter limits,
the foreign intelligence stricter limits,
on domestic surveillance expressed not only a respect
for individual privacy but also fundamentally a deep concern
about potential government abuse within our own political system.
The special protections for U.S. persons being defended
in this 2013 report, must therefore be understood
as a critical safeguard of a democratic accountability
and effective self-government
within the American political system.
So, that's a early, sort
of succinct version that's being thrown out into this argument.
And the recent and not so recent history
of surveillance shows a very strong theme
of surveillance going after domestic, political opposition.
And this won't surprise you.
Hitler not so friendly, met some political opposition.
Stalin, the East German government Stasi,
which was secret police in communist era.
That is a key role of secret police
to detect political opposition and clamp down on it.
So, if you are worried about secret police.
If you think that's a bad thing, that's a sign
of how authoritarians go after political opposition.
Resisting secret police in some ways is saying we should have
very strict limits against domestic surveillance.
Recent history.
There's more examples but here's three from the headlines.
In Turkey there's been a growth in domestic surveillance
since [inaudible] come in over time.
But after the failed coup a couple
of years ago they've passed broad new powers
for domestic surveillance and there's the mass jailings
of political opponents in.
And Turkey is well down the path towards not being as much
of a democracy as this.
Russia under Putin [inaudible] more reported murders
of political appointments.
They have a surveillance program called Phorm.
I was over in Russia on a mission.
And we learned a lot about it.
It requires the internet service providers to be able
to conduct deep packet inspection through surveillance.
And a lot of that is targeted against political opponents.
Venezuela.
Sad news this year about even worse
than it was before under Maduro.
Domestic intelligence services targeted
and jailed political opposition.
And the Patriotas cooperantes is a group that acts
as secret police in the communities
to look for opponents.
These are for people who support democracy and human rights
around the world three sad stories, I think,
from the last 10 years.
And they clearly include stepped up intensive surveillance
against domestic twitter of people, of opposition.
So, this isn't some theoretical thing that's limited
to the Hitler example.
This is things we see happening in places
that were having elections that mattered.
And now don't seem as though
if having the elections that matter.
This is a variation on the same point.
Domestic surveillance is also a potent tool
against the free press.
Authoritarian practice of surveillance and suppression
of the free press is a key .
. . the free press is a key check on executive power.
And so we can do quickly the same.
Country Turkey, we have a quote now, "Now is the worst time
for journalists in the last year of so."
There's the jailing of journalists, forcing people to .
. . resign from media, raiding outlets
that criticize the government.
In Russia the same story.
In Venezuela the same story.
And so having protection against surveillance of the press
and interference with it, having protection
for the opposition political party is central to the project
of keeping democracy going.
And how do you do that?
There's no guarantees in life.
People can do crazy things.
And vote for crazy people.
But these are checks and balances
against the executive locally taking power in a way
that they don't release it after that.
That's the concern we have
about how surveillance works domestically.
So, a summary on this part based on history,
there's a clear history that the erosion of democracy says
that accompany and accelerated by surveillance
of domestic political opponents
and surveillance of the free press.
So, extra song .
. . extra song?
Extra strong safeguard against surveillance is a lesson
from Watergate.
This is a lesson from the rest of history.
And we have a practical and empirical basis for concluding
that strict rules against domestic surveillance support
the collective good of rule of law and democracy.
And as I said before,
this argues that individual rights are better protected
if we have extra strict rules limiting surveillance.
That's the summary on that part.
Here's a sort of extra point that wasn't
in the three-page outline that I circulated.
We're working on that.
So, one question.
If we want to have extra strict laws domestically,
maybe we should just apply the extra strict laws to everybody?
That way we could have a quality one leveling
up to a higher level of protection of human rights.
That's an idea.
I don't think it turns out to be a persuasive idea.
So, the Universalists or Cosmopolitans could agree
that very strict rule should apply
against domestic surveillance.
And then want the same very strict rules for non-residents.
But our view is that these super strict or these equal rules
at least won't work over time
for foreign enemies and non-domestic.
And so the war zone, our Kandahar example,
illustrates the national security need
for broader surveillance in foreign settings.
There's other non-domestic settings that support that.
A foreign affairs general.
If we try to impose a super strict rules across the board,
then the super strict rules for foreign surveillance, I think,
would not be enduring.
The National Security folks say we can not live
under these domestic Fourth Amendment type rules.
And then we would get a leveling down.
If equality is to go, we get a leveling
down so all the rules are the weak foreign rules.
But we still want the super strict
for domestic for the reasons said.
So, basically, I don't think we can keep super strict
for foreign.
I think it would be a bad idea.
It would stop us from protecting ourselves
against foreign enemies.
So, you've to live with somewhat less strict for foreign.
But there are reasons to be very strict for domestic.
Go ahead.
>> Well we, .
. . we still have some protections, though.
I know in areas if you are concerned
that there are too many U.S. citizens
in a specific geographic area,
you would still have restrictions.
Right. What's surveillance we can't do
if we happen to have too much?
>> Right. So, this we'll come back to a point.
What I'm trying to do in this paper is convince you
that two tier makes sense.
And then there would be later work to say,
exactly in what circumstance, how much two tier,
and how broadly does it apply,
and who counts as a near citizen.
You'd have to fill in all the details.
But when we have the global U.N. leader on this issue going
around saying two tier is immoral
and against international law, I want to stop
and say wait a second.
There's a really different story than that.
If you go with me for that story so far,
then at least you're going to have
to have a much more careful conversation.
And not assume that's the moral high ground.
Because I think he .
. . yes, I think he's sincere.
He thinks he's on the moral high ground.
And I think what he was doing would undermine democracy
and make it a more dangerous world.
So, I'm glad to engage with him.
And we'll get a copy of this when it's ready to show.
I'm trying to get it right so that when it's released
to the public, people with a really different view, I hope,
will say, ah, I hadn't really thought about that.
I'll have to go back and think about it.
Yes, Ken?
>> Do we have a .
. . I think you make a convincing argument.
Do we have effective restrictions
on nations trading this information?
I mean a cynic would just say, .
. . if a domestic executive wants to spy on America,
they just have to ask the European country .
. .
>> Have U.K. do it for us and we'll do it for them?
>> Right. Exactly.
>> That's against the law in the United States.
>> Okay.
>> So, and having done this NSA review thing, I got, you know,
I got briefed to the top-secret level
and I know what's available publicly.
And it's stated publicly and I believe it to be true.
So, it is against the law for the NSA
to ask MI-6 or whatever .
. . or GCHQ to spy on Americans.
We can't basically make them our agents to do that.
Now there's time when there is a big data dump.
And when it comes from Britain it hasn't been minimized
and there might some U.S. person in there.
And you have to go around to clean it up.
But our rules are you're supposed to clean it up.
And you're supposed to suppress the U.S. person stuff.
So the legal structure .
. . this is where I'm tempted .
. . I'm tempted to give you my last two slides
and then do a more conversation.
So, for the two current controversies,
for mutual legal assistance, I think people are going
to agree target nationality matters.
That's just jurisdiction and choice of law.
That provides a really strong basis
for greater government access to data
where they have the connection to the people their getting.
So, the U.S. gets more data about U.S. persons
where they have jurisdiction.
And they don't get as much data about Kazakhstan.
For FISA and section 702,
which is where the European criticism has been so fierce,
we have a justification based on national security.
We want to target agents of foreign power.
When they're outside of the United States.
And we have no other way to get data about them
but to do electronic surveillance.
We can't even do a search warrant.
So, for that reason we ought to be able to get
that data more easily.
And the last slide is the previously little examined
question of whether different legal rules are lawful
and normatively desirable.
Positive law shows that the U.S.
and other democracies have applied different rules.
Normative analysis says there is a good argument for it.
Seeking implanting the same rules would undermine valuable
protections in the name of pragmatism or the name
of protecting individual rights,
we try to establish a strong philosophical basis.
Where different and stricter show surveillance
when it's targets at citizens or near citizens.
Okay. So, that's enough.
My last slide.
So, were there other .
. . glad to take general discussion.
[ Inaudible question ]
Well, who .
. . would it be illegal or not?
So, if some foreign power sends a nice package of helpful stuff
about the Senators who disagree with the President?
[Inaudible] Okay.
So, the . . . my understanding of the law would be
that if this package just appeared
from nowhere, we didn't ask for it.
It just appeared.
It was sent as a gift.
Merry Christmas.
That the NSA or the CIA would receive it.
And then for the NSA under something called Use of 18,
which is the directive for U.S. person information,
they are required to go through it.
And they're required
to do what's called minimize information about U.S. persons.
And so, they're supposed to go and when it says, Peter Swire,
they cross it out and say U.S. person number one.
And they do that with the data.
And then once that's been done,
it can go into the system for other use.
So, that's what the law says.
Another thing is, does the NSA follow the law?
People wonder that all the time.
And our report found that the NSA had very substantial
compliance program that it built up after 2009.
After 2009 the NSA added over 300 fulltime employees just
to get compliance on their electronic signals intelligence.
And any mistakes that are reported to the FISA court.
And the FISA court has declassified a lot
of these reports.
So, you can see, oh, somebody typed in the wrong phone number
and they reported it to the judge.
Even very small violations have been reported to the FISA court.
And so my own view is they have a much more advanced compliance
system than almost any company I'm aware of.
And so they have the law in place to minimize.
And they have a compliance system in place that's automated
with independent judges looking over their shoulder for it.
And so it's really different in my view from that sort
of lawless NSA out of control story.
That was more accurate in the months after 9/11,
when they were scrambling to change practices.
But 16 years later, they bureaucratized it and put rules
in place that are, I think, very elaborate.
And in the testimony for this Facebook
and Trump's case, that's published.
Look for my name online and put in Facebook
and Trump, you'll find it.
The oversight and transparency mechanisms,
I have a 50-page chapter talking about that.
It's really impressive and you can foot note it all.
And we have a chapter in what the FISA court has declassified
since 2013.
And it's so different from the starting assumptions
of many people.
That I live in this world where I just read all these pages.
And I have footnotes under everything
about how careful they are.
But I know that many,
many people think they're cowboys who don't care.
But I'll just tell you having spent a lot
of time reading these documents and seeing consequences
and seeing the court stop programs
when they break the rules.
That I've become way more impressed
with how careful they are than I expected to be
when I got into the field.
Yes?
>> I had two questions.
So, following up on that, I have a different question.
But I'm going to ask both.
So, how confident are you
that you're did the Obama administration means
that the Trump administration can't get around the essentials
of bureaucratized and wouldn't know.
And then more generally, I think you make a very compelling,
very clear case for the two tier approach.
And I am convinced.
But I'm curious what the domestic human rights
organizations who work on these issues,
like [inaudible] I don't even know currently what the others .
. . what would they say?
What would they say in response to the U.N. guys comments.
And that's it.
>> Yes. Access Now has commented favorably on it.
That's one of the human rights groups
that is active in Washington.
I'm an optimist sometimes that research
and good arguments can help people come to a different view.
Nothing like this has been published.
And the person whom I did it with Chaired
by Jack Goldsmith at Harper.
And he's a [inaudible] international law person.
And Ben Wittes who runs Lawfare blog was there.
And I was asking, have you guys seen this argument made?
Has this been out there.
They said, no, never seen.
Please publish it.
So, they would know.
Jack Goldsmith among others have a very senior job
in the Bush White house .
. . sorry, in the Department of Justice.
And Wittes is sort of like the default national security guru
for current debates about such things.
So, you know, you can only fall in love with your own argument.
I've, undoubtedly, have done so, to some extent.
But my hope is that people
who reflectively thought Universalism made sense,
will now say, uh, if we actually want to have this system work,
I'm going to have to think it through more.
And they might have two, three, or five nuances
where my starting point would change some
after really smart people think of all sorts of things.
But I think it's discrimination, therefore,
it's wrong position will be much harder to sustain.
And so maybe this begins a more nuanced discussion about where
and how much and all that.
So, that would be great.
But I'm delighted that I haven't gotten .
. . I've had very limited people outside my research team see
this yet.
Part of why I was glad to come here today.
It's the first time I've said most
of this stuff, you know, to a group.
And it's .
. . these slides were new.
In fact, I woke up this morning and I had no slides.
So, these slides happened on the way to Indiana today.
And, you know, so now.
Your other question was should we trust the
current administration?
And . . . look, I worked for the Obama Administration
and Clinton Administration.
I'm not a fan of Donald Trump.
That's not a big surprise based
on my public record and things I've said.
The . . . here's some data points.
One thing is, we still have independent judges doing the
FISA, the foreign intelligence surveillance work.
And they get access to all the top-secret information.
They be about collection case,
which shut down an NSA collection program happened this
year in 2017 and was declassified.
So, you have independent federal judges with, like,
10 year in expertise in foreign intelligence
who were watching the NSA.
And we haven't seen any alarm bells go off from that.
So, that's good.
Another thing is, there was this PPD-28.
Presidential Policy Directive-28.
Where President Obama said, for the first time,
as a principle we're going to apply privacy protections
to U.S. persons and non -U.S. persons where we can,
with exceptions where we can't for national security purposes.
But as a principle we're going to strive for that.
Some people thought that would get revoked on day 1.
And it hasn't been revoked.
It hasn't been explicitly reaffirmed.
But it hasn't been revoked.
We would know, I think, if it was revoked.
Because it goes out to all the agencies.
And I think somebody in one
of the agencies would tell us if it happened.
Another thing we know, is that there is a current,
like right now in September, a review by Europe
of something called the Privacy Shield,
which is where Europe is actively trying to figure
out if the U.S. is living up to its privacy commitments.
And as part of that, Europe is very concerned about something
with a beautiful acronym of the PCLOB.
PCLOB sounds like a disease.
But PCLOB is the privacy and civil liberties oversite board.
A former Indiana University Law Professor,
David Medine was the chair of it most recently.
PCLOB didn't have a chimp
and didn't a quarm [assumed spelling] and couldn't operate.
And in the run up to this discussion with Europe
for September, they named a plausible smart person
to be chair at the PCLOB, which is a Rehnquist clerk
but a distinguished, smart person with lots
of national security knowledge and stuff like that.
So, that's a sign of actually having an oversite board get
staffed when I think skeptics thought it would never get
staffed again.
So, that's pretty good.
So, this is a question .
. . one way to rephrase your question is,
how effective is the deep state?
How many limits are there going to be .
. . [inaudible question] What did I say?
>> The deep state.
>> I was saying .
. . Jean. I .
. . look
>> I'll buy you another cup of coffee.
[Laughter].
>> I agree with public servants.
I had a huge respect for the people I've met
in the intelligence agencies who devote nights and weekends
to try to keep our country and the world safe.
And there are people I agree with or disagree
with politically and all sorts of things.
But the level of dedication
that I've seen personally is fantastic.
So, and the level of derision they get from friends
and families sometimes is under [inaudible].
So, in a less slipped way, let me say it this way.
We have a lot of established checks
and balances in the system.
A lot of different things have
to go wrong before anybody can call up and say I want
to go after Bernie Sanders.
Get me stuff now.
There's a lot of limits on that.
A lot of different people would tell.
A lot of compliance red flags would go up.
Inspector's General would notice.
So, at least over the medium term,
I haven't seen any evidence of that kind of breakdown.
Now, 8,12, 16 years in, when the same personal aren't there.
And those things start to erode,
I wouldn't have the same view necessarily.
But less than a year in, the evidence is
that these institutions are being staffed
and people are doing their jobs.
That's my best guess from the available evidence.
I worry about it but it's my best guess.
Yes.
>> One thing I got throughout the entire presentation was the
role that bulk collection plays in all of this.
Because when I look at the EU argument it always feels kind
of like the belt and suspenders,
throw in every argument and see what stays.
But what they really seem to be frustrated
about is bulk collection.
And I'm wondering if in your framework there's a distinction
between targeted where the two tier system makes sense
and untargeted surveillance
where maybe a more universal baseline makes sense.
>> Yes. Well, the term bulk collection itself is something
people argue over a lot.
So, one of the things that we know from declassified documents
and from Snowden, is that part
of 702 is called the UPSTREAM program.
And the UPSTREAM program basically is .
. . there's a wire maybe coming into a switching station
in San Francisco or some other place.
And the NSA attaches a box to the wire
and gets everything coming through the block.
That sounds like bulk collection.
Okay. Section 702 says, and the court has written at length
in declassified opinion is that this is how they operate.
Section 702 says it is that bulk collection happens and it goes
over to the pre-processing center
and only the very small subset
that meets individual selectors goes to any human beings.
So, if Peter Swire is on the list of suspects
of agents foreign powers.
I don't think I am but if I were.
If communication is to Peter or from Peter,
that meets the criteria and then the NSA analyst can look at it.
Until earlier this if it was about Peter, you all said, hey,
I saw him speak at Indiana and then you add your adjectives
for whether it was good or bad or something.
But if it was about Peter,
they all should get that communication.
But now that's been stopped.
And by the way, you couldn't target me under 702
because it has to be targeted
at a non-U.S. person who is overseas.
So, it would be like Pierre Swire and friends
or something like that.
So, it's bulk collection at a technical level.
But it's only individualized selectors under Section 702.
And it's those individualized selectors
that have the two tier that apply.
You can't have it all for U.S. persons.
You can have it if they meet the standards under 702.
So, I'm not sure what other bulk collection you most .
. . is this?
[inaudible]
>> No. I was going to turn it off
so that you don't accidentally do something to that.
>> Oh, sorry.
[Laughter] You know, I teach, I move my hands.
I walk around.
Sorry if I'm wrecking anything in Indianapolis.
So, there were other bulk collection programs.
There was Section 215 which was all the phone number Metadata
of U.S. persons.
And that closed down under the U.S.A. Freedom Act consistent
with our recommendation.
So, that doesn't exist anymore.
Now a different kind of collection is what .
. . is overseas collection.
Instead of listening a wire in the United States,
now it's a wire that's going between U.K. and Iraq
or something like that.
Two foreign countries.
And when there is surveillance that happens outside the U.S.,
the collections outside the U.S.
and it's not targeting a U.S. person.
There is a different rule.
It's called Executive Order 12333.
And those rules are more wide open.
Because it's foreign to foreign communications.
There's no reason to think there is U.S. persons anywhere
in site.
And we're gathering up bunches of stuff.
Now, at that point, the rule is if we bring this data feedback.
I'm not going to use that as my example.
>> It's off now.
>> It's off now.
I can use it?
Okay. So, we bring back out CDrom drive,
from 12333 that we got from overseas.
And it comes here.
That's when we're supposed to minimize U.S. persons.
So, it was bulk collection under anybody's view.
It's under PPD-28, so when possible,
we treat everybody the same.
But we still have rules that are extra strict for U.S. persons
and we're allowed to apply them.
I . . . you know, we treat the U.S. persons more carefully
in part so they don't use it
as a backdoor way to look at Americans.
That's one of the reasons we do it.
Because, you know,
U.S. political opposition might be talking to people overseas.
And so we conveniently get all their stuff in a foreign
to foreign communication.
So, we minimize U.S. persons in part to stop that.
So, I don't think the bulk collection .
. . I don't think the bulk collection would be a reason
to stop minimizing U.S. person approach.
I don't know if I answered your question.
>> Well, I think .
. . when I'm trying to gauge public opinion and all that,
was this easily bothersome to people,
in particularly an 80-something,
'm speculating a lot here.
But I feel like it is not even the technical,
what we are doing is more this nebulous what they can do.
And when you say, we got a little switch that we put
on the cable and it takes in all the data
but don't worry we're only looking at a little bit of it.
Well you skip a little.
You've got the box full of all the data.
>> No you don't.
Because it's never stored.
I mean, then you have to trust us that it's not ever stored.
And then it turtles all the way down.
You never know .
. . right?
I mean. At some point, and this is a huge problem .
. . this is the fundamental problem of open transparent,
democratic governments of secret intelligence agencies.
And that's a genuinely hard problem.
Because these agencies don't work unless there's secret
things they're doing to collect things.
If we told them our spy in the Kremlin is Joe.
Joe wouldn't last long.
It has to be secret that it's Joe.
And similarly, if we have a tap to Joe's device in the Kremlin,
then we can't say the sources and the methods
or else they'll close down the tap.
So, if we're going to get that stuff from the Kremlin,
if you think it's legitimate to spy on countries
that aren't your country we can't tell everybody all
the details.
And then open democracy, transparency folks said, oh,
but maybe their using those tools to really go
after the senators and congressmen.
And you're like, well,
here's the reasons I think that's not true.
We have all these laws in place.
We have these judges who look at it.
We have congressional oversite from senate
and house intelligence committees.
And they have access to the classified records.
Where the privacy of civil liberties oversite board.
And they can go in and do investigations.
And if all of those people are lying then we're screwed.
But we try to come up with ways that reinforce each other
so we don't come to the view that they're all lying.
That's, you know .
. . and the Europeans might just systematically say they're still
Americans and we don't trust them
until we get our own people in.
And I say, I don't know how to do that.
And by the way you don't let us do it in your country.
I don't know.
I don't know if that's not fully satisfying but it's .
. .
>> I was wondering if the universalists have an argument
for handling a situation where we'd be tightening
down title 10 forced protection capabilities now?
You have a lot more flexibility there too, right?
And so suddenly we're doing this comprehensive rule.
You lose maybe [inaudible] lose like half
of what we can do in title 10.
>> It's so that the Europeans would like that, you think?
To sort of tie the hands of the military?
>> Well, I'm curious if they would.
Or if they have an argument .
. . because I assume they .
. . I assume Europeans countries have similar aspects
that are equivalent to title 10 for their own forces.
>> Okay. So, first of all,
I'll try to transfer that into English.
There is three parts of the U.S. code.
There is crimes, 18-USC.
Cops have authority.
There's the military can do things
when they're acting like a military.
It's title 10 of the U.S. code governs that.
So, title 10 authorities is what the U.S. military can do,
for instance, in Iraq, and Syria, and Afghanistan
when they have power [inaudible].
And then in between is title 50,
which is intelligence authority what the NSA can do.
And most people who aren't
in the military have never really thought
about what you can do under title 10.
Are you with the military?
>> Yes.
>> I mean, we pretty much knew that.
So, what you can do under title 10,
which is very broad authorities because people are going to die
and we really want to know where the IEDs are going to go of.
That's title 10.
Title 50 is more restrictive.
And title 18 crimes is even more restrictive.
So, we had a panel on information sharing
for law enforcement, intelligence,
and military purposes.
That's online in our Georgia Tech website
about this cross border stuff.
And we had the former supreme allied commander of NATO
on the panel, talking about how it really works
in Europe and stuff.
So, that might be of interest to you.
Because as far as we can tell there's never been a panel
talking about how the systems in Iraq for purposes
of this foreign intelligence surveillance stuff.
But the Kandahar example, to me, would be persuasive
to a European military person who wouldn't want to talk
to their civil liberties folks who say, you're nuts.
We need power in the war zone.
We're not going to go through the EDPR,
that's the new privacy rules in Europe, when it comes
to fighting a war and having are people blocked.
We're just not going to do that.
And I'm sure the military people in Europe know that.
But they're never in the same conversation
as the privacy absolutists are.
And so, one hope for this research is, to make people
who are used to being in human rights discourse,
concretely say, no.
let my son blow up in Kandahar.
It's a really mean, rhetorical trick.
Do you want my son to die?
Yes, I believe in human rights that much.
It's really unfair rhetorical trick
and I'm going to stick with it.
[Laughter].
That's why I put the personal note in.
>> Effectively what would be make .
. . somebody that's effected, what would happen?
Information that's required run the outer IED?
>> Right. Right.
So, you try to .
. . we take a situation, factual, and then if the people
who not inclined to agree with you want my son to die,
that puts them in a bad place.
If they agree, we have to have different rules there,
they've opened the door to having different rules
for all these other purposes.
So, that's the choice that the unfair rhetorical trick is meant
to pose.
>> Maybe one more question.
>> One more question.
>> I have a question.
A short one.
So, if Chief Justice appoints all the judges
from the FISA court.
Correct?
>> Yes.
>> As a structural matter, not as a critique.
Chief Justice Roberts, do you believe
that the FISA court would be better staffed
if you had the three most senior supreme court justices,
instead of having just one person appoint all the judges
in the FISA court?
>> Yes. So, Chief Justice Robert got harshly criticized
for his selections.
And that came out during the Snowden period.
And the next two selections were Democrats.
Judges appointed by democratic Presidents
after every other one had been Republican.
So, that became a flash point.
I . . . the reviewed report had a recommendation on that.
That wanted to change the structure.
I didn't dissent from it.
But I'm not convinced that Chief Justice of the Supreme Court is
that much of a problem.
So, when you open up a box and you start to change things,
are you overall going to get something better?
I hope whoever is Chief Justice
of the Supreme Court can play a role
in administering the U.S. judiciary,
putting layers on that.
It's not my favorite thing.
But if it's a bad enough set of historical facts at some point,
you consider changing it.
And people have reached different judgments
about how bad the history is versus how messy it would be
to sort of interfere with administering the judiciary.
So, I can see both sides but I'm a little more cautious
than some people who want to make that change.
We're working ED EX.
I'm easy to find by email.
If any of you have comments, questions,
things that weren't clear,
suggestions for further research,
I'd really appreciate it.
We're trying to get this thing done
in the next couple of months.
So, thanks very much for your attention.
[ Applause ]
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