WEBVTT - generated with AI

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Something is changing in our country, and most

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people feel it before they can explain it. Good

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evening, I'm Peter Mina, a civil rights and federal

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employment law attorney, as well as a former

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Department of Homeland Security official who

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worked to integrate civil rights and civil liberties

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protections in the department's national security

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programs, and you are listening to the Steady

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State Sentinel from the Steady State. We are

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facing an existential threat. Growing autocracy

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in the United States. The steady state sentinel

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is a place where we and our distinguished guests

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use our national security expertise to discuss

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and analyze the decisions and acts of this administration

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that feed that autocratic slide and threaten

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to supplant the pillars of our constitutional

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democracy. Today, we're talking with Alex Joel,

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the senior project director and resident adjunct

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professor at the American University Washington

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College of Law. Professor Joel leads the Privacy

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Across Borders Research Initiative, which is

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part of the law school's Tech, Law, and Security

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program. He is conducting research, developing

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programming, and teaching courses focused on

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the intersection between the law, national security,

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technology, and privacy. Prior to coming to American,

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Professor Joel spent nearly two decades in the

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intelligence community. In 2002, he joined the

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Central Intelligence Agency's Office of General

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Counsel. Subsequently, in 2005, he moved to the

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Office of the Director of National Intelligence,

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or ODNI, where he served as a civil liberties

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protection officer for 14 years, reporting directly

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to five different directors of national intelligence.

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And starting in 2015, he simultaneously served

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as the ODNI's chief transparency officer. And

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with that, welcome to the show, Alec. Thank you,

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Peter. Thank you for having me. Thanks so much

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for coming. So why don't we start off by having

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you talk to our audience a little bit about what

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your current work is at American University,

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and in particular, what the Privacy Across Borders

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initiative is. Yes, thanks. I've been teaching

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at American universities at the law school for

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the last five years or so. I teach national security,

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surveillance, and secrecy, as well as issues

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relating to technology and privacy around the

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world. And with the Privacy Cross Borders Research

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Initiative, we're looking at data flows and technology

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as it's required for our society and our economies

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around the world, focusing on cross -border data

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flows and issues of trust relating to how governments

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access personal data held by companies for national

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security or law enforcement purposes, as well

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as how AI is governed and used in ways that implicate

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national security and privacy at the same time.

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Well, those issues couldn't be more salient than

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right now. And so I want to kind of start a little

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bit at your beginnings. What led you to the,

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you know, ultimately very distinguished career

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you had in intelligence and national security?

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And then, you know, within that, what led you

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to a particular focus on privacy, tech, and then

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certainly civil liberties, particularly at your

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role at ODI? Okay, well, we're going to go back

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in time a little bit since you asked for my beginnings.

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So I graduated from law school and I served four

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years as an Army JAG. And after I got out of

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the Army, I joined a law firm and I did technology

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outsourcing work, sort of technology transactional

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work. And then I joined Marriott International

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in -house and I was their privacy. and e -commerce

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and new business ventures lawyer for seven years.

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And I was super happy in that job. That was a

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great place to work. And then 9 -11 happened.

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So that changed everything for me. So with 9

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-11, I decided I needed to reenter public service.

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And I was asking around, trying to figure out

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how I could best contribute. And I was very interested

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already at the time in terms of the intersection

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of privacy and technology. And now what could

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we do with national security? I was also concerned

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about civil liberties. and about making sure

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that our Muslim American friends weren't being

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stigmatized and those kinds of issues. And a

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friend of mine who had been at the FBI for a

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few years strongly recommended that I apply to

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the CIA. So I did in October 2002, 2001. And

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I started at the CIA in 2002. And I spent three

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years there. And a lot of the issues that I was

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dealing with at the agency. How do we apply the

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rules and constraints that grew out of the church

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committee hearings in the 1970s that are embodied

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in an executive order, Executive Order 12333?

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How do we apply those rules as well as deal with

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conflicting laws around the world that might

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impact the ability to obtain information to prevent

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another terrorist attack? And when they stood

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up the Office of the Director of National Intelligence,

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as your audience may know, that was in the Intelligence

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Reform and Terrorism Prevention Act of 2004,

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they stood it up. Director Negroponte was the

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first DNI. He was sworn in in April 2005. And

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I was detailed over from the CIA to the DNI,

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sort of in that first wave of lawyers to help

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stand it up. And I was there in June of 2005.

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And I was named the Civil Liberties Protection

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Officer pretty immediately as the interim to

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fulfill that role while we were looking for a

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permanent person. And Director Negroponte decided

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to make me the full -time Civil Liberties Protection

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Officer by the end of 2005. And so that's sort

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of the... the the story there and i was i did

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it for 14 years i i had you know occasion to

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think about doing something different in the

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intelligence community but i didn't have an interest

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in that i i've always been both intellectually

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fascinated and sort of emotionally motivated

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and committed to this idea that we can do both

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we must be able to do both we must be able to

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protect the nation's security and at the same

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time protect people's privacy and civil liberties

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and i still believe that to be true that Yes,

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there are tensions between the two goals, obviously,

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but there are ways to enable our agencies to

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carry out their national security mission and

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at the same time constrain them from going too

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far to make sure that they don't become themselves

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a threat to our freedoms and our democracy. Well,

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I actually want to ask you a little bit more

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about that because I think that's at the core

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of... you know, trying to make sense of what's

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happening right now. How do you I mean, use the

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word tension. And I've certainly heard that from

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others over the years. You know, do you see it

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as sort of this push and pull? Or do you think

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as I think I, you know, sort of pick up from

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your answer, that these, you know, really important

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foundational concepts can actually coexist? I

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think they have to coexist. I mean, there's,

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there's clearly potential trade offs. Obviously,

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if I read if I get an order to read somebody's

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emails, that person has lost privacy to to the

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government. But that's where you have the internal

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and external checks and balances. So the way

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I think about it, and I've done a lot of work

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with other countries as well and spoken to different

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oversight entities from around the world and

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how they think about. This balance that has to

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be achieved between national security and protecting

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people's privacy. The way I think of it is that

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a legal framework in a democracy has to do two

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things simultaneously and equally well. The legal

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framework has to authorize the intelligence agencies

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to do things to protect national security. What

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kinds of things? It typically is intrusive things.

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And it also are intrusive measures that are taken

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in secret, because if it's fully transparent,

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then the. targets the bad guys will know what

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you're doing and we'll try to avoid it right

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so um the way i put it is that a fully in effect

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a fully transparent intelligence service would

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be fully ineffective um so you're doing secret

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intrusive things and at the same time that legal

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framework has to constrain the agencies from

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going too far it has to do both and so it's really

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it's really finding that way to do both and and

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the other thing i would say is i remember early

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on in my tenure we there were a lot of arguments

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about the balance metaphor like is this Is this

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the balance? Which one outweighs the other? And

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I was always a proponent of saying that the balance,

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the goal is to keep the scale balanced, right?

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You want to do things on the national security

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side of the scale, but you have to counterbalance

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it with things on the civil liberties protection

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side of the scale, including, you know, cutting

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back on some national security measures that

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aren't really necessary. So that's been my...

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The metaphor that I've always felt comfortable

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with, but now with so many changes in the way

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technology moves so quickly and world events

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change and policies change and people change,

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I've really come to feel like it's always going

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to be dynamic. It's not static. You never achieve

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a balance and say, we're done. As the world changes,

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as things change, you have to adjust, and it's

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always going to be shifting in a constant dynamic

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motion, and that's okay. So there will be periods

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where things seem to be out of balance, but as

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long as the system is trying to correct it, it's

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always correcting and trying to find that balance.

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That's the key. Makes complete sense. And actually,

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as we continue this conversation, I want to talk

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a little more with you about the civil liberties

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component of that. We'll talk a lot about privacy.

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But again, given the moment that we're in, there

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have been lots of discussion and questions and

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ultimately litigation over the intersection of

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national security and civil liberties. But for

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folks that don't really understand sort of the

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legal framework around these issues, one of the

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obviously foundational statutes in this area

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is the Privacy Act. And so I was wondering if

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you could kind of give our listeners just a basic

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description of, you know, what is the Privacy

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Act and what is it designed, what and who is

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it designed to protect? Yeah, the Privacy Act

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is an amazing statute. I think a lot of people

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feel like it's outdated and needs to be amended.

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And I certainly would agree that it could use

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a refresher, a refresher. But it was enacted

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in 1974. So sort of we were in the middle of

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press disclosures about, you know, Watergate

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and about, you know. Press reporting was already

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coming out about some of the intelligence abuses

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in the early 70s and the 60s. And so in response

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to that, Congress and then on top of that, there

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was a landmark report by the Department of Health,

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Education and Welfare of all departments that

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was very concerned about the centralization of

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data of Americans in these large, big mainframe

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computers that governments were operating to

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process people's information. And so out of that

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report, that was sort of raising the alarm about

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the power of these 1970s era mainframe computers.

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And the notion that you have all of this centralized

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data that is being accessed and processed by

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government technocratic experts who may be separated

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from the people that the data pertains to and

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aren't focused on the rights of those individuals,

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but are focused on the... whatever the modality

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was at that time to process computer information,

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the report came out and recommended a series

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of what we, of course, as you well know, Peter,

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called the fair information practice principles.

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This idea that people should know what the government

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has on them and should be able to access that

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information and correct it if necessary or ask

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that it be removed if it wasn't collected in

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an appropriate way. And the idea that the information

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should be used in general for the purpose that

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the agency had when it collected the information.

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So if it goes, if I interact with an agency and

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it says fill out this form because we need it

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to process for Social Security benefits, well,

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then my expectation is that that's exactly what

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the agency will do. So those concepts were embodied

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in a messy way, like it's in a very technical

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way in the Privacy Act of 1974. And the Privacy

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Act applies. government -wide. There are exemptions

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from certain of the provisions to deal with classified

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information and with national security and law

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enforcement. So that's clear. Like, you can't

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have a terrorist submit a request to the CIA

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and say, give me access to my file, right? So

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the CIA is going to say, we can neither confirm

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nor deny that we have anything on you. Properly

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so. So there are exceptions to the Privacy Act,

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but I think, and it's a complicated statute,

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but I would say at its core, it does A few things.

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One is it requires agencies to publish the systems

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of records, the databases that they have about

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Americans. And so that comes out in what is called

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a system of records notice. And it requires them

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to receive and process requests for access to

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agency records from the individuals who are covered

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by those records. So if I go to the Social Security

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Administration, I want to see my... the information

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they have on me i'm entitled to do that under

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the privacy act and they are obligated to respond

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so once you have these records on americans you

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have to publish a notice and you have to have

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a process by which they can access the information

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and the other main thing it does is that it requires

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in a in this same public notice that they explain

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what they're using the information for and who

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has access to it so you know as you know peter

00:13:49.919 --> 00:13:52.500
Those are called routine uses, like what is the

00:13:52.500 --> 00:13:55.679
routine use for this data? And that's important

00:13:55.679 --> 00:13:58.980
because in those routine uses, there will be

00:13:58.980 --> 00:14:01.879
either, you know, they will explain to what extent

00:14:01.879 --> 00:14:04.700
they are disclosing the data. They are sharing

00:14:04.700 --> 00:14:08.500
the data with other agencies. And it also limits

00:14:08.500 --> 00:14:11.480
the ability of agency employees to access the

00:14:11.480 --> 00:14:14.440
data. That same agency, those employees must

00:14:14.440 --> 00:14:18.200
have. a need to know to access the data so it's

00:14:18.200 --> 00:14:20.399
not like once the agency has the data it's freely

00:14:20.399 --> 00:14:22.899
available to everybody it's still tightly controlled

00:14:22.899 --> 00:14:28.320
and regulated and documented and audited but

00:14:28.320 --> 00:14:29.919
i think the privacy act continues to serve an

00:14:29.919 --> 00:14:32.460
important purpose it's comprehensive you know

00:14:32.460 --> 00:14:35.179
we we often criticize including myself the united

00:14:35.179 --> 00:14:37.440
states for not having a comprehensive privacy

00:14:37.440 --> 00:14:43.159
law and uh we all should should should modify

00:14:43.159 --> 00:14:45.039
that we don't have a comprehensive privacy law

00:14:45.039 --> 00:14:47.299
that applies to the private sector to the commercial

00:14:47.299 --> 00:14:50.220
sector we do have a comprehensive privacy law

00:14:50.220 --> 00:14:51.799
that applies to the federal government and we

00:14:51.799 --> 00:14:53.580
were way ahead of the rest of the world in that

00:14:53.580 --> 00:14:58.500
going back to 1974 so it's interesting because

00:14:58.500 --> 00:15:01.840
i think there's a lot of um parallels between

00:15:01.840 --> 00:15:06.279
1974 and the health education and welfare you

00:15:06.279 --> 00:15:08.279
know commission or committee that was established

00:15:08.279 --> 00:15:11.480
that looked at you know sort of this aggregation

00:15:11.769 --> 00:15:14.929
of data and here we are more than 50 years later

00:15:14.929 --> 00:15:17.889
and we're again talking about you know the issues

00:15:17.889 --> 00:15:21.009
surrounding aggregation of data you know dating

00:15:21.009 --> 00:15:22.629
back to the beginning of this administration

00:15:22.629 --> 00:15:26.070
with doge and you know collecting social security

00:15:26.070 --> 00:15:29.090
data and sharing it with other agencies and then

00:15:29.090 --> 00:15:31.649
questions about whether that data was also going

00:15:31.649 --> 00:15:34.750
to private entities whether that be basex or

00:15:34.750 --> 00:15:38.049
companies like palantir um and so i guess you

00:15:38.049 --> 00:15:39.830
know you alluded to it a little bit in your previous

00:15:39.830 --> 00:15:42.679
response but You know, for the, you know, again,

00:15:42.759 --> 00:15:44.740
the person that might not be as familiar with

00:15:44.740 --> 00:15:47.360
these issues, what's the problem with agency

00:15:47.360 --> 00:15:51.600
sharing information? Why in a world, you know,

00:15:51.600 --> 00:15:55.399
for example, post, you know, 9 -11, where, you

00:15:55.399 --> 00:15:58.440
know, some of the criticism was, you know, siloing

00:15:58.440 --> 00:16:01.740
of information between agencies and how that

00:16:01.740 --> 00:16:04.139
created vulnerabilities. You know, why should

00:16:04.139 --> 00:16:07.080
we be so concerned with that now? Yeah, I'm glad

00:16:07.080 --> 00:16:11.019
you brought up the 9 -11. example, just as a

00:16:11.019 --> 00:16:14.620
matter of history there in terms of what we did

00:16:14.620 --> 00:16:17.799
in that post -9 -11 period. So you're right that

00:16:17.799 --> 00:16:20.659
a huge issue was the need to share information.

00:16:21.580 --> 00:16:25.519
And the concern was that the 9 -11 Commission's

00:16:25.519 --> 00:16:28.340
concern and what the report said was that the

00:16:28.340 --> 00:16:31.460
federal government had failed to connect the

00:16:31.460 --> 00:16:34.419
dots. So this idea that there are pieces of information

00:16:34.419 --> 00:16:37.450
in different databases that if combined would

00:16:37.450 --> 00:16:40.230
show the picture. Like, you know, you would see

00:16:40.230 --> 00:16:42.669
what the terrorist plot is if you were able to

00:16:42.669 --> 00:16:45.110
connect all the disparate pieces of data in different

00:16:45.110 --> 00:16:47.769
databases. It's very powerful, and it's still

00:16:47.769 --> 00:16:51.570
a concern. Like, you want to be able to make

00:16:51.570 --> 00:16:54.690
sure that the relevant information is accessible

00:16:54.690 --> 00:16:56.769
by the people who are charged with the mission

00:16:56.769 --> 00:16:59.750
of protecting national security. So DHS was always

00:16:59.750 --> 00:17:01.850
a big part of that because of the information

00:17:01.850 --> 00:17:04.950
that DHS had, and DHS was created after 9 -11.

00:17:06.160 --> 00:17:11.559
But at the same time, the concern in the United

00:17:11.559 --> 00:17:14.099
States has always been with the creation of a

00:17:14.099 --> 00:17:17.920
huge centralized database of Americans. And part

00:17:17.920 --> 00:17:20.160
of the concern is that that would give people

00:17:20.160 --> 00:17:22.940
with access to the database enormous power, like

00:17:22.940 --> 00:17:27.019
the potential for abuse and misuse would have

00:17:27.019 --> 00:17:31.359
a huge impact on how people carried out their

00:17:31.359 --> 00:17:34.099
daily activities. That's coming at it from one

00:17:34.099 --> 00:17:39.059
end is like, do we want a huge database where

00:17:39.059 --> 00:17:43.920
everybody's records are all centralized and accessible

00:17:43.920 --> 00:17:46.400
to some cadre of analysts? And this is exactly

00:17:46.400 --> 00:17:49.700
the concern that HEW, that that report was raising,

00:17:49.759 --> 00:17:51.859
came up with the fair information practice principles

00:17:51.859 --> 00:17:54.420
to deal with it. So coming at it from a different

00:17:54.420 --> 00:17:57.240
direction, it's this idea that if you interact

00:17:57.240 --> 00:18:00.079
with a government agency and they tell you to

00:18:00.079 --> 00:18:02.710
fill out a form for a particular purpose. Your

00:18:02.710 --> 00:18:04.589
expectation is that your information will be

00:18:04.589 --> 00:18:07.710
used for that purpose. If you had known something

00:18:07.710 --> 00:18:09.710
different, you may not have applied. You may

00:18:09.710 --> 00:18:11.930
not have provided your information. So it's this

00:18:11.930 --> 00:18:17.309
idea that people expect certain things when dealing

00:18:17.309 --> 00:18:19.349
with an agency to be able to go to that agency

00:18:19.349 --> 00:18:22.190
for benefits. They don't expect that agency to

00:18:22.190 --> 00:18:25.150
then make their information public, to provide

00:18:25.150 --> 00:18:28.150
it to all kinds of agencies that may have different

00:18:28.150 --> 00:18:32.220
equities and a different approach. And that's

00:18:32.220 --> 00:18:37.319
where this idea of the requirement that if you

00:18:37.319 --> 00:18:39.500
share it with another agency, it be for a compatible

00:18:39.500 --> 00:18:42.539
purpose, that the purpose be compatible with

00:18:42.539 --> 00:18:46.579
the purpose that you told the individual about

00:18:46.579 --> 00:18:49.119
when you were originally collecting that information.

00:18:49.160 --> 00:18:52.059
And I think that's a key protection. Now, it's

00:18:52.059 --> 00:18:54.720
true that people talk about the Privacy Act as

00:18:54.720 --> 00:18:58.980
being old fashioned. And what it did was it operates

00:18:58.980 --> 00:19:01.359
in silos. Each department or agency is in its

00:19:01.359 --> 00:19:04.380
own silo. Right. And naturally, that's going

00:19:04.380 --> 00:19:07.240
to create information sharing issues. And is

00:19:07.240 --> 00:19:09.619
that really the way technology works? And aren't

00:19:09.619 --> 00:19:11.819
there other better ways of protecting privacy

00:19:11.819 --> 00:19:14.359
than sort of having an agency keep their information

00:19:14.359 --> 00:19:17.849
in the silo? and then go through a laborious

00:19:17.849 --> 00:19:19.990
process under the Privacy Act to share information

00:19:19.990 --> 00:19:23.869
with other agencies. And there probably are more

00:19:23.869 --> 00:19:26.109
modern ways of thinking about how to do that

00:19:26.109 --> 00:19:28.089
more effectively, but you would still need to

00:19:28.089 --> 00:19:30.890
protect people's privacy and respect some of

00:19:30.890 --> 00:19:33.230
the original expectations. I'll just say one

00:19:33.230 --> 00:19:35.769
last thing is that so post 9 -11, we were really

00:19:35.769 --> 00:19:38.109
focused on connecting dots. We were really focused

00:19:38.109 --> 00:19:42.369
on making sure the agencies operated. more cohesively

00:19:42.369 --> 00:19:44.849
not only inside the intelligence community but

00:19:44.849 --> 00:19:47.509
also with other departments and agencies in the

00:19:47.509 --> 00:19:49.750
federal government with state and local law enforcement

00:19:49.750 --> 00:19:51.910
with foreign partners with the private sector

00:19:51.910 --> 00:19:55.289
the idea was we we wanted to connect dots but

00:19:55.289 --> 00:19:58.190
we went through enormous trouble to make sure

00:19:58.190 --> 00:20:00.250
we complied with the privacy act to make sure

00:20:00.250 --> 00:20:03.890
that the agency's routine uses supported the

00:20:03.890 --> 00:20:06.230
sharing or if they needed a new routine use if

00:20:06.230 --> 00:20:08.859
they needed to explain how they were now going

00:20:08.859 --> 00:20:10.799
to be sharing terrorism -related information

00:20:10.799 --> 00:20:14.380
with the intelligence community, that they went

00:20:14.380 --> 00:20:16.240
through an analysis to make sure that that was

00:20:16.240 --> 00:20:19.160
lawful under the Privacy Act. So there was no

00:20:19.160 --> 00:20:22.579
effort by the president or by any department

00:20:22.579 --> 00:20:24.579
or agency that I'm aware of to simply ignore,

00:20:24.799 --> 00:20:27.680
override, or supersede those protections. It

00:20:27.680 --> 00:20:29.980
was really a matter of how do we work within

00:20:29.980 --> 00:20:31.839
the Privacy Act and with other laws. There's

00:20:31.839 --> 00:20:34.599
a lot of other rules and restrictions that are

00:20:34.599 --> 00:20:36.640
intended to protect privacy. How do we act within

00:20:36.640 --> 00:20:39.619
those constraints? to share information better

00:20:39.619 --> 00:20:42.740
so that we can prevent another terrorist attack.

00:20:43.640 --> 00:20:47.539
So with that as a backdrop, and again, comparing

00:20:47.539 --> 00:20:51.099
it to the present moment, it seems almost as

00:20:51.099 --> 00:20:55.519
though the aggregation of data is almost being

00:20:55.519 --> 00:20:59.539
used as a threat to American citizens. It's almost

00:20:59.539 --> 00:21:05.380
like a cudgel to say, hey, be careful. You shouldn't

00:21:05.380 --> 00:21:09.950
make... statements that are contrary to the mission

00:21:09.950 --> 00:21:13.490
of an agency like dhs for example or you know

00:21:13.490 --> 00:21:15.890
we're gonna you know track that activity you

00:21:15.890 --> 00:21:18.789
know there's been talk of you know a database

00:21:18.789 --> 00:21:21.450
of first amendment protesters you know people

00:21:21.450 --> 00:21:25.130
protesting against ice for example um and so

00:21:25.130 --> 00:21:27.910
i'm kind of wondering if i could get your you

00:21:27.910 --> 00:21:31.190
know reaction to you know that use of information

00:21:31.190 --> 00:21:34.569
collection and then you know sort of on the opposite

00:21:34.569 --> 00:21:36.569
end of the spectrum you know one of the things

00:21:36.569 --> 00:21:41.470
that i think is always uh you know attention

00:21:41.470 --> 00:21:44.490
or requiring a balancing and you've alluded to

00:21:44.490 --> 00:21:47.049
it in this conversation is that balance between

00:21:47.049 --> 00:21:50.470
national security and transparency and so you

00:21:50.470 --> 00:21:53.519
know Given that kind of maelstrom of a moment

00:21:53.519 --> 00:21:56.220
that we're in, how do you kind of unpack those

00:21:56.220 --> 00:21:59.119
issues in a way that makes sense to someone,

00:21:59.240 --> 00:22:01.740
you know, unlike us, that doesn't live this every

00:22:01.740 --> 00:22:06.220
day? Right. And you sent me links to a couple

00:22:06.220 --> 00:22:08.839
of the articles that you're alluding to. And

00:22:08.839 --> 00:22:10.920
I'm not I haven't studied those specific issues,

00:22:11.140 --> 00:22:14.019
but I will say that generally speaking, what

00:22:14.019 --> 00:22:17.400
those articles are talking about is whether.

00:22:18.509 --> 00:22:20.650
So there's two sets of issues. Let me just sort

00:22:20.650 --> 00:22:23.089
of unpack it a little bit. So one is one is the

00:22:23.089 --> 00:22:26.009
right of people to peacefully protest. Right.

00:22:26.069 --> 00:22:31.289
And so, as you well know, the First Amendment

00:22:31.289 --> 00:22:34.190
is one of the most fiercely protected rights

00:22:34.190 --> 00:22:37.630
in our democracy in terms of the right of speech,

00:22:37.910 --> 00:22:41.089
petition for grievances, freedom of assembly,

00:22:41.369 --> 00:22:43.869
freedom of religion, freedom of the press. So

00:22:43.869 --> 00:22:46.930
those are extremely important fundamental rights.

00:22:47.930 --> 00:22:51.089
In the 1970s, during the Church Committee hearings,

00:22:51.210 --> 00:22:53.750
as you know, with Senator Frank Church, one of

00:22:53.750 --> 00:22:56.329
the main concerns that came out of that was that

00:22:56.329 --> 00:22:58.630
given all the turmoil in the 60s and 70s, we

00:22:58.630 --> 00:23:01.049
had, you know, the Vietnam War protests going

00:23:01.049 --> 00:23:04.170
on. We had there were domestic terrorist incidents

00:23:04.170 --> 00:23:06.690
back in the 1970s with the weather underground

00:23:06.690 --> 00:23:09.890
and things like that. There were it was a time

00:23:09.890 --> 00:23:12.690
of enormous turmoil and civil rights movement

00:23:12.690 --> 00:23:16.359
and marchers getting attacked, you know. by protesters,

00:23:16.700 --> 00:23:20.380
counter -protesters. And so it was a time of

00:23:20.380 --> 00:23:22.619
great turmoil. And even in that time of turmoil,

00:23:22.940 --> 00:23:27.599
coming out of that was a reinforced concern for

00:23:27.599 --> 00:23:30.680
protecting the First Amendment rights of Americans.

00:23:31.019 --> 00:23:33.980
And one of the big issues that came out of those

00:23:33.980 --> 00:23:37.500
hearings was that intelligence agencies seem

00:23:37.500 --> 00:23:41.039
to have been turning their focus inward toward

00:23:41.039 --> 00:23:45.500
those protesters in ways that would chill and

00:23:45.500 --> 00:23:49.160
restrict their abilities to exercise their First

00:23:49.160 --> 00:23:51.420
Amendment rights. And so the court spoke up about

00:23:51.420 --> 00:23:53.920
that. There's a famous case called the Keith

00:23:53.920 --> 00:23:58.400
case that is exactly about those concerns. Coming

00:23:58.400 --> 00:24:01.819
out of the church committee hearings, President

00:24:01.819 --> 00:24:04.200
Ford issued an executive order, which was then

00:24:04.200 --> 00:24:07.759
reissued, superseded by one that President Carter

00:24:07.759 --> 00:24:10.240
issued. And then President Reagan superseded

00:24:10.240 --> 00:24:12.640
Carter's with what we now know as Executive Order

00:24:12.640 --> 00:24:15.650
12333. And then we also mentioned the Privacy

00:24:15.650 --> 00:24:19.430
Act previously. Those were designed in part to

00:24:19.430 --> 00:24:23.869
constrain the government from essentially conducting

00:24:23.869 --> 00:24:27.230
domestic surveillance on its own people in a

00:24:27.230 --> 00:24:29.869
way that would constrain their freedoms and their

00:24:29.869 --> 00:24:32.269
rights. And as you know, the Privacy Act has

00:24:32.269 --> 00:24:34.650
a provision that says that you cannot maintain

00:24:34.650 --> 00:24:38.369
a record of an American based solely on their

00:24:38.369 --> 00:24:42.150
exercise of First Amendment rights. And so the

00:24:42.150 --> 00:24:46.240
idea that. that the government would be looking

00:24:46.240 --> 00:24:50.079
at everybody who goes to a protest is, I think,

00:24:50.079 --> 00:24:53.099
a huge issue given that history and given the

00:24:53.099 --> 00:24:55.720
intent of those rules. The other thing I'll say,

00:24:55.900 --> 00:24:58.160
you know, obviously, if there is violence, if

00:24:58.160 --> 00:25:01.680
there is unlawful conduct, if there's criminality,

00:25:01.799 --> 00:25:05.420
be it in a protest or anything else, then yes,

00:25:05.460 --> 00:25:07.599
that would be a legitimate reason for looking

00:25:07.599 --> 00:25:11.140
at somebody. Now, that's sort of on the First

00:25:11.140 --> 00:25:13.579
Amendment side. There's the aggregation of data

00:25:13.579 --> 00:25:16.259
side, which doesn't necessarily have to do with

00:25:16.259 --> 00:25:18.319
the First Amendment. It could, you know, in the

00:25:18.319 --> 00:25:20.880
situation you posit, if they're looking up all

00:25:20.880 --> 00:25:23.420
the protesters in a large centralized database

00:25:23.420 --> 00:25:26.339
to try to find something on them that they can

00:25:26.339 --> 00:25:31.059
use to get people in trouble that they don't

00:25:31.059 --> 00:25:34.400
want to be out there protesting, you know, so

00:25:34.400 --> 00:25:36.480
they're going to find information in federal

00:25:36.480 --> 00:25:40.299
databases to use. against them, and again, I

00:25:40.299 --> 00:25:42.039
haven't been following that specific issue, so

00:25:42.039 --> 00:25:44.400
I don't know, then of course that's a concern

00:25:44.400 --> 00:25:46.839
as well. And that would be an inappropriate use

00:25:46.839 --> 00:25:52.900
of access to those databases. So in other words,

00:25:52.900 --> 00:25:55.480
what is commonly thought of as phishing expeditions.

00:25:55.500 --> 00:25:58.599
Again, if you have a specific articulable reason

00:25:58.599 --> 00:26:01.440
under the law for looking at somebody, for example,

00:26:01.579 --> 00:26:03.880
commissioned of a violent act or planning a criminal

00:26:03.880 --> 00:26:07.059
act, then that would be a valid reason to look

00:26:07.059 --> 00:26:11.970
it up. So I think, you know, as I hear you, you

00:26:11.970 --> 00:26:13.690
know, one of the things that I, you know, that

00:26:13.690 --> 00:26:17.130
comes to mind immediately is, you know, public

00:26:17.130 --> 00:26:20.430
efficacy in our, you know, national security

00:26:20.430 --> 00:26:24.210
and intelligence activities. And if the belief

00:26:24.210 --> 00:26:27.670
is that, oh, you know, the government might use,

00:26:27.710 --> 00:26:30.849
you know, the information that it collects, you

00:26:30.849 --> 00:26:33.269
know, in a way that seems inconsistent with.

00:26:33.720 --> 00:26:35.220
You know, whether it's the First Amendment or

00:26:35.220 --> 00:26:37.920
the Privacy Act or other civil liberties and

00:26:37.920 --> 00:26:41.279
privacy protections, you know, maybe that diminishes

00:26:41.279 --> 00:26:44.259
the overall confidence in the national security

00:26:44.259 --> 00:26:47.859
enterprise. And so I'm also wondering, you know,

00:26:47.880 --> 00:26:50.539
as sort of an offshoot of that, you know, how

00:26:50.539 --> 00:26:53.460
do you see the impact or, you know, I guess the

00:26:53.460 --> 00:26:55.880
presence or lack thereof of transparency sort

00:26:55.880 --> 00:26:58.359
of in that, you know, question of public efficacy?

00:26:58.740 --> 00:27:00.900
I mean, particularly when you think about members

00:27:00.900 --> 00:27:03.759
of the intelligence community. like NSA that

00:27:03.759 --> 00:27:06.519
used to be called no such agency. So, you know,

00:27:06.519 --> 00:27:09.359
how do you how do you see that? Yeah. So one

00:27:09.359 --> 00:27:11.960
of the as you pointed out when you were going

00:27:11.960 --> 00:27:14.579
over my bio, one of my titles when I was in the

00:27:14.579 --> 00:27:16.799
government was chief transparency officer for

00:27:16.799 --> 00:27:19.819
the director of national intelligence. So transparency

00:27:19.819 --> 00:27:22.559
was a big push of ours following the Snowden

00:27:22.559 --> 00:27:26.279
disclosures. I had always wanted more transparency

00:27:26.279 --> 00:27:29.240
because I felt. It was very difficult to get

00:27:29.240 --> 00:27:31.380
public trust to get one to get one of your issues

00:27:31.380 --> 00:27:33.359
if you couldn't explain to the public what it

00:27:33.359 --> 00:27:35.059
was that we were doing and how you were doing

00:27:35.059 --> 00:27:38.420
it. So I had always felt that that that frustration

00:27:38.420 --> 00:27:41.140
and not being able to explain how our rules work

00:27:41.140 --> 00:27:43.880
and not only make them public, but sometimes,

00:27:43.940 --> 00:27:46.059
you know, several sets of rules at the time were

00:27:46.059 --> 00:27:50.180
public, not not nearly as many as are now. But

00:27:50.180 --> 00:27:53.940
not only making the document public, but explaining

00:27:53.940 --> 00:27:57.190
it. Right. So making sure you've met. with people

00:27:57.190 --> 00:27:59.549
and went over it and made sure they understood

00:27:59.549 --> 00:28:01.869
it, or you put information out there that explained

00:28:01.869 --> 00:28:05.150
it more clearly. So following the Snowden disclosures,

00:28:05.150 --> 00:28:08.670
even though I had been quite proud of our framework

00:28:08.670 --> 00:28:10.789
for protecting privacy and civil liberties, it

00:28:10.789 --> 00:28:14.490
was always secret. A large part of it was classified

00:28:14.490 --> 00:28:16.450
and not available to the public. And then after

00:28:16.450 --> 00:28:18.529
the Snowden disclosures, we realized, well, we

00:28:18.529 --> 00:28:21.750
really need to make a stronger push. So coming

00:28:21.750 --> 00:28:23.269
out of that, the intelligence community committed

00:28:23.269 --> 00:28:26.640
to what is still in effect and it's still posted

00:28:26.640 --> 00:28:28.819
on the dni website the principles of intelligence

00:28:28.819 --> 00:28:31.519
transparency uh for the intelligence community

00:28:31.519 --> 00:28:34.299
and these were organizing principles to make

00:28:34.299 --> 00:28:36.940
sure that the agencies were able to lean into

00:28:36.940 --> 00:28:39.240
providing more information to the public about

00:28:39.240 --> 00:28:42.299
how what their authorities were how they interpreted

00:28:42.299 --> 00:28:44.359
them how they used them what their compliance

00:28:44.359 --> 00:28:46.140
with those authorities looked like what were

00:28:46.140 --> 00:28:48.779
the compliance incidents and also how the intelligence

00:28:48.779 --> 00:28:51.619
community operates how it does its job and uh

00:28:51.619 --> 00:28:55.009
that became you know a cause for me. That was

00:28:55.009 --> 00:28:57.430
something that I really championed and felt very

00:28:57.430 --> 00:29:01.670
deeply about the importance of that. And we would

00:29:01.670 --> 00:29:04.829
meet with advocates, including organizations

00:29:04.829 --> 00:29:08.329
that were suing us. And I know that DHS was able

00:29:08.329 --> 00:29:10.210
to do that much more. I know that your former

00:29:10.210 --> 00:29:15.730
office had great relationships with... advocacy

00:29:15.730 --> 00:29:19.470
groups. Absolutely. You know, super important

00:29:19.470 --> 00:29:21.690
just to have those relationships. And I think

00:29:21.690 --> 00:29:23.650
if in the absence of that, if you don't have

00:29:23.650 --> 00:29:25.849
transparency, then people are naturally suspicious.

00:29:25.890 --> 00:29:29.250
And it's a way of figuring out, well, you know,

00:29:29.269 --> 00:29:30.869
you've mentioned these stories about databases.

00:29:31.089 --> 00:29:33.009
Well, what are the databases? What are they doing

00:29:33.009 --> 00:29:35.130
with the data? You know, the more transparent

00:29:35.130 --> 00:29:38.950
you are, the better. The way I would put it is

00:29:38.950 --> 00:29:41.309
that if I'm proud, we should feel be proud of

00:29:41.309 --> 00:29:43.549
what we're doing. And unless there's a reason

00:29:43.549 --> 00:29:45.490
to keep it hidden, for example, classified information

00:29:45.490 --> 00:29:48.890
sources and methods, you know, a lot of active

00:29:48.890 --> 00:29:50.890
law enforcement litigation. There are clearly

00:29:50.890 --> 00:29:53.630
reasons, a lot of reasons to keep a lot of information,

00:29:53.769 --> 00:29:56.130
a lot of detailed information secret. But generally

00:29:56.130 --> 00:29:58.390
speaking, what you know, what we what we're doing

00:29:58.390 --> 00:30:01.670
with data, how are we collecting it in general?

00:30:01.809 --> 00:30:04.769
What are the protections? You should be proud

00:30:04.769 --> 00:30:07.849
of what you're doing and there should be no embarrassment

00:30:07.849 --> 00:30:10.230
in explaining it and what you're what you're.

00:30:10.519 --> 00:30:13.480
what you are keeping secret are things that could

00:30:13.480 --> 00:30:16.619
hamper operations, but you're not, you're not

00:30:16.619 --> 00:30:18.359
even tempted to keep something secret because

00:30:18.359 --> 00:30:20.559
you're embarrassed about it. Right. If you are

00:30:20.559 --> 00:30:22.680
embarrassed about something, fix it, like do

00:30:22.680 --> 00:30:26.119
something about it, fix it. So you're not embarrassed

00:30:26.119 --> 00:30:28.940
about it anymore. Right. Or even if you're thinking

00:30:28.940 --> 00:30:32.039
about it in advance, if you can't explain it,

00:30:32.079 --> 00:30:36.380
maybe don't do it. Right. Exactly. Well, you

00:30:36.380 --> 00:30:38.730
know, Alex, you've been so kind and generous

00:30:38.730 --> 00:30:41.230
with your time. You know, I really appreciate

00:30:41.230 --> 00:30:43.490
it. And I hope I know our audience will as well.

00:30:44.250 --> 00:30:46.970
It's been incredibly educational. I feel like

00:30:46.970 --> 00:30:49.250
we could talk about so many more issues in the

00:30:49.250 --> 00:30:51.630
space. And so we'd love to have you back whenever

00:30:51.630 --> 00:30:55.410
time allows. Is there anything that you'd like

00:30:55.410 --> 00:30:57.509
to, you know, tell people, you know, you're working

00:30:57.509 --> 00:30:59.750
on right now? Obviously, you know, we recognize

00:30:59.750 --> 00:31:02.660
the you know privacy across borders initiative

00:31:02.660 --> 00:31:04.819
but um if there's anything else you wanted to

00:31:04.819 --> 00:31:06.859
highlight and then maybe tell folks you know

00:31:06.859 --> 00:31:09.400
where they can find you you know on social media

00:31:09.400 --> 00:31:11.940
or you know elsewhere if they wanted more information

00:31:11.940 --> 00:31:14.859
yeah look for me on linkedin i think that that's

00:31:14.859 --> 00:31:17.519
become the social media platform of choice at

00:31:17.519 --> 00:31:19.680
least for me in terms of professional connections

00:31:19.680 --> 00:31:23.200
um in a couple weeks i'm going to be speaking

00:31:23.200 --> 00:31:25.920
on a couple of panels at the privacy symposium

00:31:25.920 --> 00:31:28.710
in venice so if anyone's going to venice Would

00:31:28.710 --> 00:31:30.549
love to see you there. One of them is on the

00:31:30.549 --> 00:31:34.410
national security and privacy implications of

00:31:34.410 --> 00:31:37.170
commercially available information in the age

00:31:37.170 --> 00:31:39.670
of AI. So we're going to have a really interesting

00:31:39.670 --> 00:31:43.910
panel discussion around this whole concept of

00:31:43.910 --> 00:31:46.829
commercially available information. And if you

00:31:46.829 --> 00:31:51.289
want to email me, my bio on the university website

00:31:51.289 --> 00:31:54.869
has my email address. Excellent. Well, again,

00:31:54.990 --> 00:31:57.089
thank you so much for joining us tonight, Alex.

00:32:14.679 --> 00:32:19.119
Please join us for our next episode so that you

00:32:19.119 --> 00:32:21.940
can stay engaged and stay informed. Remember,

00:32:22.200 --> 00:32:25.099
protecting our democracy isn't a spectator sport.

00:32:25.609 --> 00:32:27.569
This is Peter Mina for the SteadyState Sentinel.

00:32:27.769 --> 00:32:33.029
Still standing watch. Thank you for listening

00:32:33.029 --> 00:32:36.750
to the SteadyState Sentinel podcast. Don't miss

00:32:36.750 --> 00:32:39.829
out on more insights and exposes from America's

00:32:39.829 --> 00:32:43.329
premier global security experts. Also, subscribe

00:32:43.329 --> 00:32:48.410
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00:32:48.410 --> 00:32:51.529
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00:32:51.529 --> 00:32:53.250
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00:32:54.670 --> 00:32:56.910
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00:32:56.910 --> 00:32:59.910
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