WEBVTT - Generated by AI 00:00:00.200 --> 00:00:03.299 Something is changing in our country, and most 00:00:03.299 --> 00:00:12.519 people feel it before they can explain it. Good 00:00:12.519 --> 00:00:14.800 afternoon, I'm Peter Mina, founder of the Mina 00:00:14.800 --> 00:00:16.940 Firm, a civil rights and federal employment law 00:00:16.940 --> 00:00:19.660 firm in Washington, D .C., as well as a former 00:00:19.660 --> 00:00:21.760 deputy officer for civil rights and civil liberties 00:00:21.760 --> 00:00:24.140 at the Department of Homeland Security, where 00:00:24.140 --> 00:00:26.300 I work to integrate civil rights and civil liberties 00:00:26.300 --> 00:00:28.300 protections in the department's national security 00:00:28.300 --> 00:00:30.769 programs. and you are listening to the steady 00:00:30.769 --> 00:00:34.070 state sentinel from the steady state we are facing 00:00:34.070 --> 00:00:36.810 an existential threat growing autocracy in the 00:00:36.810 --> 00:00:39.210 united states the steady state sentinel is a 00:00:39.210 --> 00:00:41.969 place where we and our distinguished guests use 00:00:41.969 --> 00:00:44.350 our national security expertise to discuss and 00:00:44.350 --> 00:00:46.689 analyze the decisions and acts of this administration 00:00:46.689 --> 00:00:49.810 that feed that autocratic slide and threaten 00:00:49.810 --> 00:00:51.570 to supplant the pillars of our constitutional 00:00:51.570 --> 00:00:54.549 democracy today we're talking with jim petrilla 00:00:54.549 --> 00:00:57.049 jim retired from the central intelligence agency 00:00:57.049 --> 00:01:00.060 in late 2018. where he practiced in the Office 00:01:00.060 --> 00:01:03.740 of General Counsel for 25 years. During his last 00:01:03.740 --> 00:01:06.620 several years at the CIA, he was responsible 00:01:06.620 --> 00:01:08.859 for management and oversight of attorneys within 00:01:08.859 --> 00:01:12.239 CIA's Operations Directorate. He provided legal 00:01:12.239 --> 00:01:14.560 advice on a wide variety of cutting -edge legal 00:01:14.560 --> 00:01:17.959 issues across a broad range of matters to include 00:01:17.959 --> 00:01:20.620 counterterrorism and technical collection operations. 00:01:21.480 --> 00:01:23.620 He had considerable experience in working with 00:01:23.620 --> 00:01:25.260 senior lawyers in the intelligence community, 00:01:25.500 --> 00:01:27.620 together with frequent engagement with congressional 00:01:27.620 --> 00:01:29.840 oversight committees on a variety of controversial 00:01:29.840 --> 00:01:33.060 issues. He served as deputy legal advisor at 00:01:33.060 --> 00:01:35.760 the National Security Council from 2013 to 2015. 00:01:36.260 --> 00:01:39.120 Throughout his career, Jim provided regular briefings 00:01:39.120 --> 00:01:41.719 and training modules to CIA officers on topics 00:01:41.719 --> 00:01:45.359 such as Executive Order 1233, counterterrorism 00:01:45.359 --> 00:01:47.920 and related authorities, and the Foreign Intelligence 00:01:47.920 --> 00:01:50.459 Surveillance Act. He has been an adjunct professor 00:01:50.459 --> 00:01:52.540 of law at George Washington University School 00:01:52.540 --> 00:01:56.400 of Law since 2019. Jim holds a JD from the University 00:01:56.400 --> 00:01:59.099 of Virginia and a master's degree from Stanford 00:01:59.099 --> 00:02:02.599 University in Russian history. He has a bachelor's 00:02:02.599 --> 00:02:04.900 from Knox College in Galesburg, Illinois, with 00:02:04.900 --> 00:02:07.859 a major in Russian studies. And today, as we 00:02:07.859 --> 00:02:10.500 alluded to in his background, we're going to 00:02:10.500 --> 00:02:12.500 talk about the Foreign Intelligence Surveillance 00:02:12.500 --> 00:02:15.830 Act. and in particular Section 702, which some 00:02:15.830 --> 00:02:18.469 of you may have seen in the news, what that is, 00:02:18.530 --> 00:02:24.210 what it means, not only for congressional action, 00:02:24.409 --> 00:02:26.389 but also what it means for the collection of 00:02:26.389 --> 00:02:29.210 information on Americans like you and I. Good 00:02:29.210 --> 00:02:31.069 afternoon, Jim. Welcome to the podcast. Well, 00:02:31.150 --> 00:02:34.289 thank you for having me too, Peter. Delighted 00:02:34.289 --> 00:02:36.629 to talk about the Foreign Intelligence Surveillance 00:02:36.629 --> 00:02:40.789 Act, one of my favorite topics. I think you're 00:02:40.789 --> 00:02:42.710 one of the few people that can say that, Jim. 00:02:43.900 --> 00:02:47.219 So maybe before we get started talking about 00:02:47.219 --> 00:02:50.860 the meat of the Foreign Intelligence Surveillance 00:02:50.860 --> 00:02:54.180 Act or FISA, tell us a little bit about your 00:02:54.180 --> 00:02:55.599 current work and what you're working on right 00:02:55.599 --> 00:03:00.199 now. So as you mentioned, I retired, I can't 00:03:00.199 --> 00:03:04.939 believe it's been nearly eight years. And I've 00:03:04.939 --> 00:03:07.080 been doing some writing for the steady state. 00:03:07.710 --> 00:03:09.750 since I think the mission of the steady state 00:03:09.750 --> 00:03:16.750 is so critical. Jennifer Gregg, who is our extraordinary 00:03:16.750 --> 00:03:21.930 editor, was kind enough to publish a series that 00:03:21.930 --> 00:03:26.949 I wrote on the... removal enterprise that the 00:03:26.949 --> 00:03:30.069 government has established from the apprehension 00:03:30.069 --> 00:03:33.370 of undocumented people to their detention and 00:03:33.370 --> 00:03:36.169 to their rendition. So there's a five -part series 00:03:36.169 --> 00:03:39.689 on that broken up. And I encourage everyone to 00:03:39.689 --> 00:03:42.990 check that out on Substack. It is a really important 00:03:42.990 --> 00:03:48.530 and powerful read. Well, thank you. And I've 00:03:48.530 --> 00:03:54.300 written a couple of other things. One on, I have 00:03:54.300 --> 00:03:59.979 an article out on the Havana syndrome and issues, 00:04:00.259 --> 00:04:04.099 I think serious issues with the way that CIA 00:04:04.099 --> 00:04:08.460 has handled that issue across administrations, 00:04:08.460 --> 00:04:12.800 by the way. And I think that it... may have fallen 00:04:12.800 --> 00:04:15.419 into a little bit of a dark hole, even though 00:04:15.419 --> 00:04:17.920 the current DNI has promised that she would get 00:04:17.920 --> 00:04:20.839 to the by God bottom of it. And the problem is 00:04:20.839 --> 00:04:22.839 that the bottom of the Havana syndrome is the 00:04:22.839 --> 00:04:25.860 Russians. And so, you know, Tulsi has a real 00:04:25.860 --> 00:04:32.040 dilemma about how you address that one. And then 00:04:32.040 --> 00:04:36.740 also given some of the craziness going on with 00:04:36.740 --> 00:04:42.819 this. investigation of the massive non -existing 00:04:42.819 --> 00:04:46.660 conspiracy of, I don't know how many elections 00:04:46.660 --> 00:04:54.240 now, 2016, 2020, if the Democrats have success 00:04:54.240 --> 00:04:58.680 in 2026, it'll be the 2026, and on and on it 00:04:58.680 --> 00:05:04.279 goes. And so it's like all aboard the retribution 00:05:04.279 --> 00:05:09.149 train. Department of Justice has just turned 00:05:09.149 --> 00:05:11.750 itself on its head to turn itself into a retribution 00:05:11.750 --> 00:05:14.990 unit is really pretty shame. I've been trying 00:05:14.990 --> 00:05:20.430 to comment on those things. Yeah. So going back 00:05:20.430 --> 00:05:22.870 to the beginning, Jim, what led you to a career 00:05:22.870 --> 00:05:26.110 in national security and ultimately to join the 00:05:26.110 --> 00:05:28.790 CIA? Well, you know, I've always been interested 00:05:28.790 --> 00:05:34.079 in it as. An area, right. And part of that is 00:05:34.079 --> 00:05:37.420 family, family background. Both of my father's 00:05:37.420 --> 00:05:41.100 parents were Lithuanian immigrants. And I knew 00:05:41.100 --> 00:05:44.199 that we had family back there. I had no idea. 00:05:44.420 --> 00:05:46.300 And, you know, when you're a kid, you kind of 00:05:46.300 --> 00:05:48.779 fantasize about, gee, what, you know, what, what 00:05:48.779 --> 00:05:51.500 are they doing? You know, living behind the Iron 00:05:51.500 --> 00:05:53.699 Curtain in the Soviet Union. So I think that 00:05:53.699 --> 00:05:55.540 may have been a triggering, triggering thing. 00:05:56.839 --> 00:05:59.160 Part, you know, my father was very good about 00:05:59.160 --> 00:06:04.689 opening up. things to us. And then so having 00:06:04.689 --> 00:06:09.829 the chance to go to Knox, where I had a major 00:06:09.829 --> 00:06:13.990 in Russian studies. And, you know, that was just 00:06:13.990 --> 00:06:18.689 eye opening. And then I don't know, kind of all 00:06:18.689 --> 00:06:23.050 fell from there. I was in a PhD program in Russian 00:06:23.050 --> 00:06:28.420 history for four years and was about Two -thirds 00:06:28.420 --> 00:06:30.560 of the way through my dissertation when I realized 00:06:30.560 --> 00:06:36.040 it was fundamentally flawed. And I was writing 00:06:36.040 --> 00:06:39.800 on right -wing opposition to the Tsar, you know, 00:06:39.839 --> 00:06:42.939 around the turn of the century, focusing on the 00:06:42.939 --> 00:06:45.180 failure of Russia and the rest of the Japanese 00:06:45.180 --> 00:06:48.600 war and the 1905 revolution, but that's gone. 00:06:49.279 --> 00:06:52.360 And I realized that my dissertation was fundamentally 00:06:52.360 --> 00:06:56.339 flawed because... The fellow that I thought had 00:06:56.339 --> 00:07:01.379 provided an intellectual basis for right wing 00:07:01.379 --> 00:07:03.800 opposition, in fact, was regarded by everybody 00:07:03.800 --> 00:07:07.959 as a whack job. So, you know, no one I mean, 00:07:07.959 --> 00:07:10.819 he self -published his stuff and no one read 00:07:10.819 --> 00:07:12.639 it. And so I thought, you know, I need to get 00:07:12.639 --> 00:07:17.459 a job. So I went to law school. I feel like that 00:07:17.459 --> 00:07:20.199 is an answer for many of us. I need a job, so 00:07:20.199 --> 00:07:22.420 I might as well go to law school. And then private 00:07:22.420 --> 00:07:24.699 practice was fine for a couple of years to pay 00:07:24.699 --> 00:07:26.600 off debts. But then I had the chance to go work 00:07:26.600 --> 00:07:33.899 at NSA. And I had no idea what they did, right? 00:07:34.680 --> 00:07:39.139 Sure. No such agency. Yeah. In God we trust, 00:07:39.259 --> 00:07:46.399 everyone else we monitor. Right. I'm sorry, Jen. 00:07:46.500 --> 00:07:48.800 Oh, I was going to say I traded in a very long 00:07:48.800 --> 00:07:53.319 commute and a wonderful environment, work environment 00:07:53.319 --> 00:07:57.819 for a shorter commute and also under John Rizzo, 00:07:57.920 --> 00:08:01.459 who is a longtime kind of acting general counsel 00:08:01.459 --> 00:08:04.579 and I think the one person responsible for putting 00:08:04.579 --> 00:08:09.620 CIS Office of General Counsel together. I wound 00:08:09.620 --> 00:08:13.379 up with a shorter commute. equally, if not greater, 00:08:13.459 --> 00:08:16.420 interesting work and an equally good working 00:08:16.420 --> 00:08:19.600 environment. Awesome. Yeah, I was just going 00:08:19.600 --> 00:08:23.019 to say, I think that it's really common for people 00:08:23.019 --> 00:08:25.339 that are first generation to find their way to 00:08:25.339 --> 00:08:28.860 public service. I mean, myself included. And 00:08:28.860 --> 00:08:31.519 so I think that there's probably a good conversation 00:08:31.519 --> 00:08:33.639 to be had about why that is. And I feel like 00:08:33.639 --> 00:08:36.100 many of us, like you and I, have been in the 00:08:36.100 --> 00:08:39.830 national security space. And so why don't we 00:08:39.830 --> 00:08:44.490 start with just the real basics about FISA? What 00:08:44.490 --> 00:08:50.789 is it? What was it? How did it begin? So it is, 00:08:50.789 --> 00:08:53.909 you know, it is a really good place to begin 00:08:53.909 --> 00:08:56.389 right at the beginning. The Foreign Intelligence 00:08:56.389 --> 00:09:01.570 Surveillance Act passed in 1978, and it was passed 00:09:01.570 --> 00:09:05.490 as a result of pretty much revelations during 00:09:05.490 --> 00:09:07.950 the Church and Pipe Committee hearings. Prior 00:09:07.950 --> 00:09:15.490 to that, of all things, there was a domestic 00:09:15.490 --> 00:09:18.990 terrorist attack in Ann Arbor where some chuckleheads 00:09:18.990 --> 00:09:23.110 blew up a CIA building that led to their arrest. 00:09:23.250 --> 00:09:28.649 It led to, and this is in the late 60s, early 00:09:28.649 --> 00:09:31.509 70s, so it was after Title III had been passed, 00:09:31.610 --> 00:09:35.309 right? You know, where in order to do criminal 00:09:35.309 --> 00:09:42.899 warrants, to do electronic collection for criminal 00:09:42.899 --> 00:09:45.340 cases, you needed a warrant under Title III of 00:09:45.340 --> 00:09:47.659 the Omnibus Crime and State Streets Act of 1968. 00:09:49.220 --> 00:09:55.679 So it turned out in this case, which wound up 00:09:55.679 --> 00:09:59.220 under the name of the Keith case, as it's known, 00:09:59.379 --> 00:10:03.029 the formal name is U .S.-United States. of America 00:10:03.029 --> 00:10:06.090 versus United States District Court for the Eastern 00:10:06.090 --> 00:10:09.230 District of Michigan, which I think should win 00:10:09.230 --> 00:10:11.529 an award for one of the more... I wouldn't think 00:10:11.529 --> 00:10:13.610 so. I don't know that I've ever heard of a case 00:10:13.610 --> 00:10:15.470 where it's the United States against any court. 00:10:15.789 --> 00:10:20.769 Yeah. And it's named after Judge Keith, who, 00:10:20.909 --> 00:10:24.529 by the way, was the first African -American district 00:10:24.529 --> 00:10:26.429 court judge in the Eastern District of Michigan. 00:10:27.110 --> 00:10:31.070 Wow. And incredibly talented and capable judge. 00:10:31.629 --> 00:10:35.889 who was a graduate of Howard Law School. And 00:10:35.889 --> 00:10:40.429 Judge Keith passed away a few years ago. He lived 00:10:40.429 --> 00:10:44.830 well into his 90s and was on the bench for much 00:10:44.830 --> 00:10:47.590 of that. Anyway, so what happened in that case 00:10:47.590 --> 00:10:53.929 was the defendants, as entitled under Title III, 00:10:54.070 --> 00:10:58.070 filed a claim saying, you know, we need the government 00:10:58.070 --> 00:11:01.679 to give us whatever information they have. On 00:11:01.679 --> 00:11:05.600 us, right? And it turns out that the government 00:11:05.600 --> 00:11:08.179 wound up, they lost the Keith case, right? Keith 00:11:08.179 --> 00:11:10.279 said, yeah, you got to give it to them. The government 00:11:10.279 --> 00:11:14.740 said, no, it's too sensitive. And so the government 00:11:14.740 --> 00:11:17.159 lost. And what the court said in that case was 00:11:17.159 --> 00:11:19.500 law enforcement is law enforcement. Title III 00:11:19.500 --> 00:11:23.779 is Title III. And if you are doing something 00:11:23.779 --> 00:11:27.879 in the national security area. That's fine, but 00:11:27.879 --> 00:11:30.779 this is a domestic criminal investigation. So 00:11:30.779 --> 00:11:33.159 if you got it, Title III says you got to turn 00:11:33.159 --> 00:11:36.019 it over. And that led the government to drop 00:11:36.019 --> 00:11:38.799 the case because, as came out in the Church and 00:11:38.799 --> 00:11:41.080 Pike Committee, it turned out that there was 00:11:41.080 --> 00:11:44.120 a lot of domestic surveillance going on. So how 00:11:44.120 --> 00:11:47.159 do you deal with that? The key case was 1972. 00:11:47.799 --> 00:11:52.179 Feist was passed in 1978. And it's not because 00:11:52.179 --> 00:11:55.000 people were, you know, just like, yeah, yeah, 00:11:55.019 --> 00:11:57.000 yeah, we'll get to it. It's just these issues 00:11:57.000 --> 00:12:00.120 are really hard. And the difficulty is how do 00:12:00.120 --> 00:12:03.879 you go about providing sufficient authority for 00:12:03.879 --> 00:12:06.679 the government to collect national security information? 00:12:07.629 --> 00:12:10.370 doing technical collection when you know that 00:12:10.370 --> 00:12:12.950 incidental collection is going to take place 00:12:12.950 --> 00:12:15.629 and when you know that that collection is critical 00:12:15.629 --> 00:12:19.330 to the national security. So FISA was the result 00:12:19.330 --> 00:12:22.929 of all of this. And I think that the original 00:12:22.929 --> 00:12:26.610 history is important to understand the current 00:12:26.610 --> 00:12:31.669 controversy over 702, Section 702. And so the 00:12:31.669 --> 00:12:35.110 key to understanding FISA as originally passed 00:12:35.110 --> 00:12:41.970 is to look at the definitions. And so 50 U .S 00:12:41.970 --> 00:12:46.350 .C. Section 1801F, 1, 2, 3, and 4, four definitions. 00:12:46.549 --> 00:12:51.710 And it lays out what Congress had in mind consistent 00:12:51.710 --> 00:12:57.250 with the Fourth Amendment based on 1878 technology. 00:12:57.990 --> 00:13:02.149 In advance from 1878, but compared to today, 00:13:02.269 --> 00:13:07.500 it ain't that much different than 1878. FISA 00:13:07.500 --> 00:13:11.960 distinguished between radio communications and 00:13:11.960 --> 00:13:17.039 wire communications. Now, radio to FISA meant 00:13:17.039 --> 00:13:20.720 satellite communications, right? So again, it's 00:13:20.720 --> 00:13:23.299 the Foreign Intelligence Surveillance Act. Wire 00:13:23.299 --> 00:13:25.820 meant, you know, domestic communications pretty 00:13:25.820 --> 00:13:27.840 much. And the reason is because international 00:13:27.840 --> 00:13:31.240 communications were sent via satellite. Got it. 00:13:31.980 --> 00:13:34.840 So there is a distinction between as, you know, 00:13:34.860 --> 00:13:37.659 one of the original FBI guys that dealt with 00:13:37.659 --> 00:13:40.500 this. I'm stealing his line, so I want to give 00:13:40.500 --> 00:13:43.080 credit. And lest anybody think I never said anything 00:13:43.080 --> 00:13:47.759 good about the FBI. You got birds, you got ducks. 00:13:48.720 --> 00:13:50.940 And birds are treated differently than ducks. 00:13:51.500 --> 00:13:55.659 So the first definition, F1, says if you are 00:13:55.659 --> 00:14:00.000 targeting a known person in the United States. 00:14:00.679 --> 00:14:04.279 then you need a warrant, right? That's F -1. 00:14:04.379 --> 00:14:08.460 It can be wire, it can be satellite. F -2 says 00:14:08.460 --> 00:14:15.259 if you are doing a wire collection against a 00:14:15.259 --> 00:14:20.379 person in the United States, where a warrant 00:14:20.379 --> 00:14:23.039 would be required, you need to get a warrant 00:14:23.039 --> 00:14:25.799 from the FISA court. So, you know, we're going 00:14:25.799 --> 00:14:28.679 to say, we're going to give FISA a voice of its 00:14:28.679 --> 00:14:31.659 own. FISA says if you fall into one of these 00:14:31.659 --> 00:14:35.279 definitions, you need to get a warrant. So FISA 00:14:35.279 --> 00:14:39.279 says if you're targeting a known person in the 00:14:39.279 --> 00:14:42.159 United States, you need a warrant. Number two 00:14:42.159 --> 00:14:45.779 is if you're doing wire against a person in the 00:14:45.779 --> 00:14:49.480 United States, you need a warrant. Let me ask 00:14:49.480 --> 00:14:52.919 a question about that before you move on. You 00:14:52.919 --> 00:14:55.820 use the phrase a person in the United States. 00:14:56.590 --> 00:14:58.990 However, you know, we're talking about the Foreign 00:14:58.990 --> 00:15:02.769 Intelligence Surveillance Act. When you say a 00:15:02.769 --> 00:15:05.509 person in the United States, do you mean a foreign 00:15:05.509 --> 00:15:08.250 national? Do you mean a U .S. citizen? Both? 00:15:08.750 --> 00:15:10.889 What does that term mean for purposes of this 00:15:10.889 --> 00:15:14.529 discussion? Well, I'll tell you what. Rather 00:15:14.529 --> 00:15:18.870 than answer that directly, and if I don't get 00:15:18.870 --> 00:15:22.169 to this, you know, come back and tell me that 00:15:22.169 --> 00:15:29.740 I... So you're looking at two separate things 00:15:29.740 --> 00:15:32.220 here. One is domestic collection where the target 00:15:32.220 --> 00:15:35.980 is in the United States. So WIRE specifically 00:15:35.980 --> 00:15:38.940 does not distinguish between U .S. persons and 00:15:38.940 --> 00:15:42.120 non -U .S. persons. And the reason for that is 00:15:42.120 --> 00:15:45.139 because of NSA and the FBI targeting embassies, 00:15:45.220 --> 00:15:49.340 which you would expect, right? I mean, you know, 00:15:49.419 --> 00:15:55.480 I mean, if we're not, I mean, shame on us. Okay, 00:15:56.460 --> 00:16:01.639 so what the FISA drafters wanted to ensure was 00:16:01.639 --> 00:16:04.340 that the government didn't say, oh, well, this 00:16:04.340 --> 00:16:09.919 focused on U .S. persons. If you are a diplomat, 00:16:10.100 --> 00:16:16.059 you are not a U .S. person. So F2, critical language, 00:16:16.419 --> 00:16:20.100 a person, known person, person in the United 00:16:20.100 --> 00:16:30.059 States. Now, okay, so then F3 says, F3 focuses 00:16:30.059 --> 00:16:35.320 on radio communications, right? Okay. And so 00:16:35.320 --> 00:16:38.460 let me, I actually made a note of this so that 00:16:38.460 --> 00:16:43.700 I would make sure that I got it right. So FISA 00:16:43.700 --> 00:16:47.059 says for radio, which is to say satellite communication, 00:16:47.440 --> 00:16:52.389 if the sender and all recipients. are in the 00:16:52.389 --> 00:16:57.470 United States, you need a FISA warrant. Why is 00:16:57.470 --> 00:17:01.450 that? Well, this is for satellite communications. 00:17:02.330 --> 00:17:04.529 You know, a wire is a wire, right? And this is, 00:17:04.529 --> 00:17:06.670 I mean, this is like old time stuff where you 00:17:06.670 --> 00:17:10.549 would actually, you know, like do it, right? 00:17:10.609 --> 00:17:12.990 How many people, you know, put something on there 00:17:12.990 --> 00:17:14.470 and you, you know, it's like in the old time 00:17:14.470 --> 00:17:19.630 movies. But radio, satellite communication was 00:17:19.630 --> 00:17:22.690 different. And so because you could put a satellite 00:17:22.690 --> 00:17:25.910 dish down, right? In order to do a wire communication, 00:17:26.269 --> 00:17:28.789 you needed the cooperation of the wire service. 00:17:29.289 --> 00:17:31.809 So you had to go like to the local bell service. 00:17:32.029 --> 00:17:35.829 If you were wiretapping somebody in the United 00:17:35.829 --> 00:17:38.470 States, you give them a warrant and then they 00:17:38.470 --> 00:17:41.109 would put the tap on. But if you're collecting 00:17:41.109 --> 00:17:44.029 off of a satellite, all you need to do is sit 00:17:44.029 --> 00:17:47.170 in the footprint and you can put your own dish 00:17:47.170 --> 00:17:50.519 down next to. you know, like the satellite provider, 00:17:50.940 --> 00:17:54.720 and you can collect the same thing they collect. 00:17:55.200 --> 00:17:58.579 Now, why would they do that? So the first one, 00:17:58.660 --> 00:18:01.839 F2, the wire, was intended to ensure that if 00:18:01.839 --> 00:18:06.259 the government was going to go after diplomatic 00:18:06.259 --> 00:18:10.299 facilities in the United States, then they would 00:18:10.299 --> 00:18:12.480 have to go to the FISA court and get a warrant. 00:18:15.390 --> 00:18:18.430 they wanted to protect was the ability of NSA 00:18:18.430 --> 00:18:23.250 to collect foreign communications, even if there 00:18:23.250 --> 00:18:28.390 was one end in the U .S., and to allow that program, 00:18:28.549 --> 00:18:30.529 which was very well known, it's called the ILC 00:18:30.529 --> 00:18:32.990 program, International Lease Circuits, based 00:18:32.990 --> 00:18:35.230 on the lease circuit of the satellites, they 00:18:35.230 --> 00:18:38.690 wanted to allow that to continue. And so long 00:18:38.690 --> 00:18:41.109 as the target was a non -U .S. person located 00:18:41.109 --> 00:18:44.980 overseas, then the collection could occur in 00:18:44.980 --> 00:18:47.339 the United States as well as outside the United 00:18:47.339 --> 00:18:54.539 States. Is that clear? It is. So that was great. 00:18:54.720 --> 00:18:57.720 But what happened? Well, the bird became a duck, 00:18:57.799 --> 00:19:05.460 right? Cat A. Transatlantic table number A. The 00:19:05.460 --> 00:19:08.660 previous seven were copper, and they were unreliable 00:19:08.660 --> 00:19:12.369 and slow. A satellite, on the other hand, was 00:19:12.369 --> 00:19:15.509 a massive improvement over copper, both in terms 00:19:15.509 --> 00:19:18.529 of the amount of data as well as reliability. 00:19:19.589 --> 00:19:22.930 But fiber optic, man, that was a game changer, 00:19:23.089 --> 00:19:26.769 right? And so TAD -8, which was introduced in 00:19:26.769 --> 00:19:30.089 the late 80s, meant that the bird, in fact, became 00:19:30.089 --> 00:19:34.009 a duck. Now, what did that mean in terms of NSA's 00:19:34.009 --> 00:19:38.829 collection? Well, you're no longer in a satellite. 00:19:40.670 --> 00:19:44.029 A satellite dish doesn't do you any good if the 00:19:44.029 --> 00:19:46.329 international gateway switch on the other side 00:19:46.329 --> 00:19:50.829 says, hey, you know what? It is great. We can 00:19:50.829 --> 00:19:53.970 send this over there real quick. Right. Okay. 00:19:54.250 --> 00:20:01.329 Now, what that means is in order to collect the 00:20:01.329 --> 00:20:04.289 wire, you know, leave aside what it does in terms 00:20:04.289 --> 00:20:07.690 of the law. And I'll mention kind of a real world 00:20:07.690 --> 00:20:10.549 impact on that in a second. But what that means 00:20:10.549 --> 00:20:12.630 is in order to collect that information, you 00:20:12.630 --> 00:20:17.410 need the cooperation of the telecommunications 00:20:17.410 --> 00:20:19.950 company that controls the International Gateway 00:20:19.950 --> 00:20:25.509 Facility. That was the big secret. That was the 00:20:25.509 --> 00:20:31.369 big sensitivity. And that's what 702 addresses. 00:20:32.150 --> 00:20:39.569 Now, what was a big triggering event here? So, 00:20:39.690 --> 00:20:45.950 you know, there wasn't an immediate switchover 00:20:45.950 --> 00:20:52.609 from satellite to fiber optic, but, you know, 00:20:52.609 --> 00:20:56.809 it reached a tipping point where most all communications 00:20:56.809 --> 00:21:01.589 traveled via wire. So they were ducks, not birds, 00:21:01.829 --> 00:21:06.250 which was a more restrictive part of the statute. 00:21:13.249 --> 00:21:18.309 Make the switch from bird to duck. And now, you 00:21:18.309 --> 00:21:20.029 know, as we've been talking about, there's this 00:21:20.029 --> 00:21:24.109 rapid evolution of technology. And so, you know, 00:21:24.109 --> 00:21:27.349 let's move forward a little bit along the timeline 00:21:27.349 --> 00:21:30.930 to 9 -11. And you now have the Bush administration 00:21:30.930 --> 00:21:34.849 making a judgment call as to whether to amend 00:21:34.849 --> 00:21:40.359 FISA or... Go just bypass it. And so tell us 00:21:40.359 --> 00:21:42.819 a little bit about that. And then also, you know, 00:21:42.819 --> 00:21:45.779 what you think of the potential echoes of that 00:21:45.779 --> 00:21:48.579 decision to what's happening in the current administration 00:21:48.579 --> 00:21:50.960 as it relates to national security and the collection 00:21:50.960 --> 00:21:53.720 of information. And Peter, that's a great way 00:21:53.720 --> 00:21:57.460 of framing it. So, you know, the Internet burst, 00:21:57.559 --> 00:22:01.980 you know, and so with the Cold War dividend, 00:22:02.220 --> 00:22:05.160 the thought was. You know, we don't need this 00:22:05.160 --> 00:22:09.579 stuff so much anymore. And so there was a decision 00:22:09.579 --> 00:22:11.759 that the intelligence community had to make. 00:22:12.579 --> 00:22:15.599 Do you try to amend the statute so the bird and 00:22:15.599 --> 00:22:17.940 the duck are treated the same? And the decision 00:22:17.940 --> 00:22:20.299 was made not to pursue a change in the statute. 00:22:21.059 --> 00:22:25.200 Now, the problem, like the most dramatic way 00:22:25.200 --> 00:22:28.559 of describing how it's probably not a smart idea. 00:22:31.789 --> 00:22:35.670 the Hanover group that plotted 9 -11, communicated 00:22:35.670 --> 00:22:39.309 via the Internet. And so NSA was shut out of 00:22:39.309 --> 00:22:42.130 a lot of that communication because it was being, 00:22:42.349 --> 00:22:50.049 it was wire, not satellite. And the definition 00:22:50.049 --> 00:22:55.789 of wire, so satellite, it didn't matter if there 00:22:55.789 --> 00:23:00.089 was a party in the United States. Right. Why? 00:23:00.210 --> 00:23:03.329 Or if one party was in the United States, then 00:23:03.329 --> 00:23:06.289 the warrant requirement kicked in. Okay. All 00:23:06.289 --> 00:23:10.710 right. So you got this problem. And then you 00:23:10.710 --> 00:23:15.250 have 9 -11. And then you figure, well, given 00:23:15.250 --> 00:23:19.690 all the changes that can be made, right, to all 00:23:19.690 --> 00:23:22.450 kinds of things, like you got Department of Justice 00:23:22.450 --> 00:23:24.930 and the wall, you know, you got to separate foreign 00:23:24.930 --> 00:23:28.700 intelligence, separate FISA from Title III. I 00:23:28.700 --> 00:23:33.460 mean, things that bureaucratically were important, 00:23:33.579 --> 00:23:36.539 but substantively, to my mind, they really didn't 00:23:36.539 --> 00:23:41.220 make all that much sense. So that was the chance 00:23:41.220 --> 00:23:46.579 to bring FISA into the modern world. And the 00:23:46.579 --> 00:23:50.839 Bush administration chose not to. Instead, they 00:23:50.839 --> 00:23:55.720 came up with this just crazy... legal opinion 00:23:55.720 --> 00:23:58.079 out of Office of Legal Counsel, a combination 00:23:58.079 --> 00:24:02.680 of John Yoo and, oh, what's his name? The guy 00:24:02.680 --> 00:24:05.119 that's now the Ninth Circuit judge who is actually 00:24:05.119 --> 00:24:10.859 the head of OLC. And that opinion relied on, 00:24:10.900 --> 00:24:14.180 of all things, the authorized use of military 00:24:14.180 --> 00:24:18.779 force, the AUMF, and it's like a triple bank 00:24:18.779 --> 00:24:22.619 shot that makes... You know, as much sense as 00:24:22.619 --> 00:24:25.039 some of the crap coming out of OLC these days. 00:24:25.640 --> 00:24:30.279 If I can be so, you know, I mean, be so bold 00:24:30.279 --> 00:24:34.160 as to say that. And even though FISA has a provision 00:24:34.160 --> 00:24:38.579 that says, during war, here's what you do, right? 00:24:39.440 --> 00:24:41.859 Right. And there's an actual provision. Kind 00:24:41.859 --> 00:24:44.519 of what OLC said was, well, but we are kind of 00:24:44.519 --> 00:24:48.059 at war. And so Article 2 and, you know, at its 00:24:48.059 --> 00:24:52.039 height. Very, very familiar. And so let's just 00:24:52.039 --> 00:24:56.319 pretend that we have amended FISA. Got it. And 00:24:56.319 --> 00:24:59.299 that worked until it didn't. And then, you know, 00:24:59.339 --> 00:25:02.339 Jim Comey has, I mean, I think he's been, he's 00:25:02.339 --> 00:25:07.339 kind of made, you know, a lifetime of speeches 00:25:07.339 --> 00:25:11.519 on his hospital visit with John Ashcroft and, 00:25:11.599 --> 00:25:14.759 you know, him saying no and, you know, yeah, 00:25:14.759 --> 00:25:18.119 yeah, yeah. And so a stellar win was then what 00:25:18.119 --> 00:25:20.200 was exposed. And the view was, well, wait a minute. 00:25:20.559 --> 00:25:22.779 You know, we're now several years past 9 -11. 00:25:22.960 --> 00:25:28.559 You guys are collecting information from off 00:25:28.559 --> 00:25:33.019 of a wire in the United States. And FISA says 00:25:33.019 --> 00:25:35.500 you need an order and you're not getting orders. 00:25:36.140 --> 00:25:39.619 And so what that meant was that the Bush administration 00:25:39.619 --> 00:25:43.579 had convinced the common carriers to assist based 00:25:43.579 --> 00:25:47.309 upon a presidential letter. And I think Comey's 00:25:47.309 --> 00:25:49.890 account and other accounts are that like every 00:25:49.890 --> 00:25:53.329 six months, Bush would send another letter saying, 00:25:53.450 --> 00:25:56.589 no, no, no, we still could be doing this. And 00:25:56.589 --> 00:25:59.470 so one of the reasons for not amending FISA, 00:25:59.670 --> 00:26:04.650 I mean, as I mentioned, you know, when we were 00:26:04.650 --> 00:26:08.789 beginning the discussion, was the sensitivity 00:26:08.789 --> 00:26:13.720 of going to. the common carriers and having their 00:26:13.720 --> 00:26:16.319 assistance at the international gateway facility 00:26:16.319 --> 00:26:18.579 where they are actually providing that information 00:26:18.579 --> 00:26:21.299 to the government. So what happened? Well, people 00:26:21.299 --> 00:26:24.680 filed lawsuits, right, on the East Coast, West 00:26:24.680 --> 00:26:27.880 Coast, against ATT, against, you know, against 00:26:27.880 --> 00:26:29.839 all the common carriers, Western Union. And so 00:26:29.839 --> 00:26:33.519 what you wound up in was rather than a process, 00:26:33.640 --> 00:26:36.759 an orderly process to amend the statute and bring 00:26:36.759 --> 00:26:39.299 it in line with technology, modern technology. 00:26:40.170 --> 00:26:42.930 You had this kind of sneaky Pete way of trying 00:26:42.930 --> 00:26:46.450 to pull a fast one. Right. And, you know, you 00:26:46.450 --> 00:26:48.349 get caught up. People get, you know, people. 00:26:48.589 --> 00:26:52.890 Oh, yeah. Yeah. I mean, that's the thing. You 00:26:52.890 --> 00:26:55.470 know, all of these people that are, you know, 00:26:55.470 --> 00:26:57.349 saying, oh, yeah, yeah, we can do this. We can 00:26:57.349 --> 00:26:59.230 do that. You know, we can smoke boats in the 00:26:59.230 --> 00:27:01.589 Caribbean and all. You know, eventually it catches 00:27:01.589 --> 00:27:08.190 up to you, you know. And so it caught up to what 00:27:08.190 --> 00:27:11.930 the Bush administration had tried to do. And 00:27:11.930 --> 00:27:15.410 that meant that when the statute was modernized, 00:27:15.509 --> 00:27:18.269 FISA being the statute, when FISA was modernized, 00:27:18.390 --> 00:27:22.109 you were already wrong -footed. The other thing 00:27:22.109 --> 00:27:24.349 is that, you know, it's one thing with satellite 00:27:24.349 --> 00:27:28.950 communications back in the 70s, 80s, late 70s, 00:27:28.950 --> 00:27:31.650 80s, and early 90s. But with the Internet, the 00:27:31.650 --> 00:27:37.420 total explosion of... of communications, I mean, 00:27:37.420 --> 00:27:41.000 there's no way, right, that you can just say, 00:27:41.720 --> 00:27:43.279 oh, well, we'll treat the bird and the duck the 00:27:43.279 --> 00:27:45.700 same, and you don't need a warrant, and we'll 00:27:45.700 --> 00:27:49.759 rely on you internally. So the solution that 00:27:49.759 --> 00:27:55.099 came out of all of this kind of heartache and 00:27:55.099 --> 00:27:59.359 pain was Section 702, which said, okay, there's 00:27:59.359 --> 00:28:02.730 a lot of stuff out there. And we know that there's 00:28:02.730 --> 00:28:04.750 going to be incidental collection of U .S. persons. 00:28:05.430 --> 00:28:07.990 And, you know, with the original one, like with 00:28:07.990 --> 00:28:11.230 F3, it was known you're going to get U .S. person 00:28:11.230 --> 00:28:14.509 information. And, you know, I mean, you know, 00:28:14.509 --> 00:28:16.589 what was that used for? Well, things like, you 00:28:16.589 --> 00:28:19.009 know, counterproliferation, right? If you were 00:28:19.009 --> 00:28:21.250 tracking what German companies were doing, selling 00:28:21.250 --> 00:28:25.390 stuff to the Iranians or Russian efforts to circumvent 00:28:25.390 --> 00:28:28.849 our sanctions, U .S. companies would have... 00:28:29.049 --> 00:28:31.769 potentially have been involved indirectly or 00:28:31.769 --> 00:28:32.970 you know there would have been communication 00:28:32.970 --> 00:28:36.170 between i don't know you know let's say siemens 00:28:36.170 --> 00:28:41.930 you know and motorola and you know so it's incidental 00:28:41.930 --> 00:28:45.029 right and you deal with it procedurally well 00:28:45.029 --> 00:28:47.470 that's one thing if it's satellites communications 00:28:47.470 --> 00:28:51.289 that that that are expensive but if it's the 00:28:51.289 --> 00:28:54.180 internet where it's free pretty much You're just 00:28:54.180 --> 00:28:57.579 going to get gazillions of things. And so how 00:28:57.579 --> 00:28:59.279 do you then handle the incidental collection? 00:28:59.839 --> 00:29:04.319 And so what the statute came up with was a series 00:29:04.319 --> 00:29:11.059 of procedures targeting limitations. You know, 00:29:11.180 --> 00:29:17.819 a very active audit program, a list of topics. 00:29:18.299 --> 00:29:22.200 that the FISA court agrees are legitimate foreign 00:29:22.200 --> 00:29:24.660 intelligence targets. And that targeting list, 00:29:24.779 --> 00:29:26.920 which I think is still secret, but you can imagine 00:29:26.920 --> 00:29:33.640 what it is, put forth by the DNI and by the Attorney 00:29:33.640 --> 00:29:40.000 General. I have Verizon as my internet provider. 00:29:40.619 --> 00:29:46.980 And it is now part of the statute that... There's 00:29:46.980 --> 00:29:49.279 this incidental collection that's happening. 00:29:49.799 --> 00:29:54.680 Unless I'm particularly interested in this topic 00:29:54.680 --> 00:29:57.599 and I do some research and I read the law, is 00:29:57.599 --> 00:30:00.740 there any way Americans are notified of the fact 00:30:00.740 --> 00:30:03.519 that there are U .S. government agencies that 00:30:03.519 --> 00:30:06.339 are collecting information regarding their communications, 00:30:06.680 --> 00:30:10.400 even if it is on an incidental basis? No, and 00:30:10.400 --> 00:30:13.680 that's one of the controversies that is associated 00:30:13.680 --> 00:30:18.829 with 702. And so, you know, you have all this 00:30:18.829 --> 00:30:23.049 information and it's the 702 collections put 00:30:23.049 --> 00:30:27.450 into specific dedicated databases. And then you 00:30:27.450 --> 00:30:31.130 have queries that can be made against those databases. 00:30:32.450 --> 00:30:38.690 And the primary controversy has, I mean, there 00:30:38.690 --> 00:30:40.309 are some people that say, well, you just shouldn't 00:30:40.309 --> 00:30:42.150 do 702 because of all the stuff you're going 00:30:42.150 --> 00:30:45.690 to get. No, I mean, that's been part of the statute 00:30:45.690 --> 00:30:49.230 for so long. But the controversy has been over 00:30:49.230 --> 00:30:54.089 whether a warrant requirement should be required 00:30:54.089 --> 00:31:01.490 when you target a U .S. person to determine if 00:31:01.490 --> 00:31:05.450 there is additional information in the 702 database. 00:31:06.289 --> 00:31:11.740 So let me give you an example. And then if we 00:31:11.740 --> 00:31:14.740 have time, I can tell you why there is so much 00:31:14.740 --> 00:31:17.980 controversy over the FBI. So do you want an example 00:31:17.980 --> 00:31:21.539 first? Let's do the example. I know you've been 00:31:21.539 --> 00:31:24.099 very gracious with your time, but I'm also cognizant 00:31:24.099 --> 00:31:27.839 of the limited time that we have. So why don't 00:31:27.839 --> 00:31:30.000 you go ahead with an example? So an example would 00:31:30.000 --> 00:31:38.170 be you're following a Mexican drug cartel. And 00:31:38.170 --> 00:31:40.710 this is a great hypothetical because I don't 00:31:40.710 --> 00:31:42.410 think there's any way that this would occur under 00:31:42.410 --> 00:31:46.250 this administration, right? But from following 00:31:46.250 --> 00:31:52.210 the Mexican cartel, you figure out where they're 00:31:52.210 --> 00:31:54.650 getting most of their guns. Let's say it's a 00:31:54.650 --> 00:31:57.069 gun dealer from somewhere along the border, Texas, 00:31:57.369 --> 00:32:00.890 Arizona, California, wherever. You can pick California 00:32:00.890 --> 00:32:04.369 because, you know, I mean, if it was Texas, people 00:32:04.369 --> 00:32:08.180 would have picked, right? The question then would 00:32:08.180 --> 00:32:12.119 be, could you target that gun dealer, the U .S. 00:32:12.140 --> 00:32:15.019 gun dealer, in order to determine if, in fact, 00:32:15.180 --> 00:32:19.059 there are other foreign nationals that they're 00:32:19.059 --> 00:32:22.039 dealing with, right? In other words, you have 00:32:22.039 --> 00:32:25.160 all this information in there, and if you just 00:32:25.160 --> 00:32:29.680 go, you know, you type in the identifier of the 00:32:29.680 --> 00:32:31.720 U .S. person to determine if there's additional 00:32:31.720 --> 00:32:35.450 foreign intelligence information. Now, should 00:32:35.450 --> 00:32:38.069 you get a warrant for that? That's kind of the 00:32:38.069 --> 00:32:42.109 I mean, that's that's like the example of, you 00:32:42.109 --> 00:32:45.670 know, should you be able to go? Because can you 00:32:45.670 --> 00:32:48.029 get a warrant? Is there probable cause that based 00:32:48.029 --> 00:32:51.829 on the information you have that the U .S. gun 00:32:51.829 --> 00:32:57.170 dealer is, in fact, knowingly dealing with cartels? 00:32:58.289 --> 00:33:02.369 From a foreign intelligence point of view, and 00:33:02.369 --> 00:33:08.049 then or. If the answer is no, then you're fine. 00:33:08.150 --> 00:33:13.710 If the answer is yes, then the FBI presumably 00:33:13.710 --> 00:33:16.130 would take that information and then in order 00:33:16.130 --> 00:33:19.369 to engage in a criminal investigation, would 00:33:19.369 --> 00:33:22.549 use that as the basis for a warrant. So there's 00:33:22.549 --> 00:33:26.509 an efficiency level, right? So I think a couple 00:33:26.509 --> 00:33:28.950 of thoughts here in the time that we have left. 00:33:29.069 --> 00:33:32.099 I guess the question... that comes to mind is 00:33:32.099 --> 00:33:34.940 sort of this uh tension right i mean of course 00:33:34.940 --> 00:33:37.759 there's a legitimate law enforcement and national 00:33:37.759 --> 00:33:40.859 security purpose for the collection of this type 00:33:40.859 --> 00:33:44.559 of information and understandably you won't be 00:33:44.559 --> 00:33:47.140 able to give notice and it sort of defeats the 00:33:47.140 --> 00:33:50.940 purpose if you're the subject of an investigation 00:33:50.940 --> 00:33:54.400 and i have to tell you well jim we're collecting 00:33:54.400 --> 00:33:57.279 information you know from verizon with regard 00:33:57.279 --> 00:34:00.859 to your social media postings or whatever um 00:34:00.859 --> 00:34:04.440 and so i understand that but at the same time 00:34:04.440 --> 00:34:07.799 there's no warrant requirement there's no probable 00:34:07.799 --> 00:34:09.920 cause or even reasonable suspicion requirement 00:34:09.920 --> 00:34:14.360 and certainly that creates uh potential you know 00:34:14.360 --> 00:34:17.280 civil liberties uh and maybe even depending on 00:34:17.280 --> 00:34:20.119 the circumstances civil rights concerns how how 00:34:20.119 --> 00:34:24.239 do you and how should um your listener right 00:34:24.239 --> 00:34:27.039 now, kind of resolve those questions or that 00:34:27.039 --> 00:34:29.920 tension or that balance, which is always, I think, 00:34:29.920 --> 00:34:33.440 an issue in these national security spaces. So 00:34:33.440 --> 00:34:38.659 the first thing is, unlike Title III, I mean, 00:34:38.679 --> 00:34:41.119 you're right. So Title III, you're subject to 00:34:41.119 --> 00:34:44.039 a Title III warrant. You're entitled to everything 00:34:44.039 --> 00:34:46.019 they have on you, right? I mean, the government. 00:34:46.199 --> 00:34:49.300 But that's not the case with FISA. There are 00:34:49.300 --> 00:34:52.829 internal constraints. So that if you just willy 00:34:52.829 --> 00:34:56.650 -nilly type in a number, the audit is going to 00:34:56.650 --> 00:35:00.170 pick you up. And over time, what has happened 00:35:00.170 --> 00:35:04.389 is the need for justification has been written 00:35:04.389 --> 00:35:08.230 into the statute, into Section 702. So there 00:35:08.230 --> 00:35:12.690 has to be a justification for targeting a U .S. 00:35:13.210 --> 00:35:19.349 person against the 702 database. But you're right. 00:35:20.380 --> 00:35:23.119 That's, you know, relies on the internal audit 00:35:23.119 --> 00:35:26.440 and there is no requirement. You know, in fact, 00:35:26.460 --> 00:35:29.260 there really is no mechanism for determining 00:35:29.260 --> 00:35:33.019 whether whether it's being anything is being 00:35:33.019 --> 00:35:37.619 used against you. And and so, you know, you wind 00:35:37.619 --> 00:35:43.800 up with. a real dilemma in that, do you trust 00:35:43.800 --> 00:35:46.320 the system? Do you trust the targeting procedures? 00:35:46.639 --> 00:35:49.280 Do you trust the minimization procedures? Do 00:35:49.280 --> 00:35:52.420 you trust the audits that are going on? Do you 00:35:52.420 --> 00:35:58.800 trust that the FBI, NSA, CIA, you know, whoever 00:35:58.800 --> 00:36:02.280 else has access to these databases will use that 00:36:02.280 --> 00:36:06.000 access in good faith? Well, and I think given 00:36:06.000 --> 00:36:08.940 the... sort of the dismantling of the oversight 00:36:08.940 --> 00:36:10.980 structure, not just in the national security 00:36:10.980 --> 00:36:14.039 space, but all over, it's hard to, you know, 00:36:14.039 --> 00:36:16.039 to believe that that is in fact happening, to 00:36:16.039 --> 00:36:19.099 place that trust. And so, you know, given sort 00:36:19.099 --> 00:36:23.780 of the uncertain future of 702 in Congress, you 00:36:23.780 --> 00:36:26.780 know, what do you see as the path forward? Not 00:36:26.780 --> 00:36:29.539 necessarily a policy outcome necessarily, but 00:36:29.539 --> 00:36:32.320 do you think that, you know, for example, congress 00:36:32.320 --> 00:36:34.679 and the white house will come to some sort of 00:36:34.679 --> 00:36:37.059 agreement you know whatever the policy is or 00:36:37.059 --> 00:36:40.019 are we going to continue to have you know kind 00:36:40.019 --> 00:36:43.500 of this you know the administration having you 00:36:43.500 --> 00:36:45.639 know free will to essentially collect this information 00:36:45.639 --> 00:36:49.039 without necessarily any real guardrails well 00:36:49.039 --> 00:36:51.820 702 is such a critical part of the intelligence 00:36:51.820 --> 00:37:00.099 collection posture I mean, if you're interested 00:37:00.099 --> 00:37:03.500 in following the disputes, you could check George 00:37:03.500 --> 00:37:07.340 Croner, C -R -O -N -E -R, versus the Brennan 00:37:07.340 --> 00:37:16.840 Center and ACLU. And George knows probably more 00:37:16.840 --> 00:37:20.900 about FISA than most anybody that I know. And 00:37:20.900 --> 00:37:25.090 the Brennan Center. has been very consistent 00:37:25.090 --> 00:37:28.750 in their opposition. Not so much to 702, but 00:37:28.750 --> 00:37:32.409 to the warrant requirement. I think that there's 00:37:32.409 --> 00:37:36.409 a much broader issue, though, and that 702 is 00:37:36.409 --> 00:37:41.110 constrained, right? It takes place under a statutory 00:37:41.110 --> 00:37:44.829 framework and the data is segregated and is audited 00:37:44.829 --> 00:37:47.610 and all. I think a greater concern is the use 00:37:47.610 --> 00:37:50.829 of third -party data. So that you have a tremendous 00:37:50.829 --> 00:37:54.530 amount of information that is collected by private 00:37:54.530 --> 00:37:58.769 parties. You know, anytime you use one of these, 00:37:58.949 --> 00:38:01.809 right, you're sending all kinds of data that's 00:38:01.809 --> 00:38:04.849 collected. And we are all the product, right? 00:38:04.909 --> 00:38:07.489 We're not the customer, we're the product. And 00:38:07.489 --> 00:38:11.250 a lot of that data, you know, is collected by 00:38:11.250 --> 00:38:15.849 third -party data brokers and they sell it. They 00:38:15.849 --> 00:38:19.510 can sell it to anybody. And and and currently, 00:38:19.809 --> 00:38:21.610 I'm not sure that there are any restrictions 00:38:21.610 --> 00:38:26.269 on what what the government can or can't do with 00:38:26.269 --> 00:38:29.510 data that they buy from third party data brokers. 00:38:29.989 --> 00:38:32.789 And it's almost as if, you know, like that, you 00:38:32.789 --> 00:38:35.530 know, don't don't forget. Don't forget, you know, 00:38:35.550 --> 00:38:38.690 the big elephant in the room, you know, who is 00:38:38.690 --> 00:38:42.289 who has just all sorts of data. And are there 00:38:42.289 --> 00:38:45.190 limitations on any of that stuff? you know i 00:38:45.190 --> 00:38:49.190 mean and yeah i mean the question also too comes 00:38:49.190 --> 00:38:52.769 to mind given my background is what opportunity 00:38:52.769 --> 00:38:55.690 is there for regress if that information is just 00:38:55.690 --> 00:38:59.570 wrong yeah yeah and the privacy act does give 00:38:59.570 --> 00:39:03.289 you uh you know does establish methods but if 00:39:03.289 --> 00:39:04.889 you don't know it's there in the first place 00:39:04.889 --> 00:39:09.090 um you know What are you going to do about it? 00:39:09.150 --> 00:39:11.889 Or, you know, you don't know that people have 00:39:11.889 --> 00:39:13.389 been following what you're doing until you show 00:39:13.389 --> 00:39:16.449 up at the airport and your TSA pre is no longer 00:39:16.449 --> 00:39:21.900 operable. Exactly. Exactly. On that note, I think 00:39:21.900 --> 00:39:24.760 it is really critical for our listeners and really 00:39:24.760 --> 00:39:28.119 everyone out there to get smart about things 00:39:28.119 --> 00:39:31.880 like FISA and Section 702, because this impacts 00:39:31.880 --> 00:39:34.940 you day to day in almost the conduct to your 00:39:34.940 --> 00:39:38.320 point, showing your smartphone in almost everything 00:39:38.320 --> 00:39:40.619 we do and every time we have a communication. 00:39:41.719 --> 00:39:44.699 And so, you know, Jim, thank you so much for 00:39:44.699 --> 00:39:47.139 being so gracious with your time, for being able 00:39:47.139 --> 00:39:50.960 to really break this down in a way that our listeners 00:39:50.960 --> 00:39:54.860 and everyone out there can understand. And so 00:39:54.860 --> 00:39:57.900 can you let folks know where people might be 00:39:57.900 --> 00:40:00.199 able to find your work or, you know, more about 00:40:00.199 --> 00:40:02.900 you? You know, speaking of that brand internet, 00:40:03.199 --> 00:40:07.179 where can we find more about Jim Petrola? Well, 00:40:07.239 --> 00:40:09.239 certainly the steady state. And then I'm also 00:40:09.239 --> 00:40:12.960 connected with a really, you know, kind of a 00:40:12.960 --> 00:40:15.780 new venture that someone I used to work with, 00:40:15.860 --> 00:40:19.440 a former ops officer named Ed Bogan, has set 00:40:19.440 --> 00:40:21.880 up called the Institute for the Study of States 00:40:21.880 --> 00:40:26.840 of Exception. And ISSC really complements the 00:40:26.840 --> 00:40:32.250 steady state. very nicely. ISSE is focused more 00:40:32.250 --> 00:40:35.030 on states of exception from an academic point 00:40:35.030 --> 00:40:37.949 of view, kind of an analytic point of view, and 00:40:37.949 --> 00:40:42.329 a legal point of view. And it's how emergency 00:40:42.329 --> 00:40:46.230 authorizations can very easily be misused into 00:40:46.230 --> 00:40:51.170 the same kind of illiberal structures that, Peter, 00:40:51.349 --> 00:40:54.210 you mentioned at the beginning of our talk here. 00:40:55.059 --> 00:40:59.199 Great. So lots of interesting reading out there 00:40:59.199 --> 00:41:02.940 and content from Jim and others. And so if you 00:41:02.940 --> 00:41:05.019 like what you heard on today's show, please subscribe 00:41:05.019 --> 00:41:07.119 to the Steady State Sentinel wherever you get 00:41:07.119 --> 00:41:09.679 your podcasts and give us a five -star review 00:41:09.679 --> 00:41:11.940 on Google. Those subscriptions and five -star 00:41:11.940 --> 00:41:14.199 reviews help us get this important content to 00:41:14.199 --> 00:41:16.780 the widest audience possible. If you'd like to 00:41:16.780 --> 00:41:18.619 hear more from our guests about the implications 00:41:18.619 --> 00:41:23.380 of... FISA, Section 702, and maybe more broadly 00:41:23.380 --> 00:41:25.400 about the collection of information on Americans, 00:41:25.619 --> 00:41:27.900 check out my prior interview with Alex Stoll, 00:41:28.000 --> 00:41:29.820 the former Civil Liberties Protection Officer 00:41:29.820 --> 00:41:32.920 at ODNI, the Director of National Intelligence. 00:41:33.320 --> 00:41:35.679 And as always, the steady state Sentinel is for 00:41:35.679 --> 00:41:38.139 you, our listeners, and we want to hear from 00:41:38.139 --> 00:41:41.119 you. Please join us for our next episode so that 00:41:41.119 --> 00:41:44.039 you can stay engaged and stay informed. Remember, 00:41:44.360 --> 00:41:47.139 protecting our democracy is not a spectator sport. 00:41:47.639 --> 00:41:49.579 This is Peter Mina for the City -State Sentinel, 00:41:49.800 --> 00:41:55.340 still standing watch. Thank you for listening 00:41:55.340 --> 00:41:59.059 to the Steady State Sentinel podcast. Don't miss 00:41:59.059 --> 00:42:02.139 out on more insights and exposes from America's 00:42:02.139 --> 00:42:05.639 premier global security experts. Also, subscribe 00:42:05.639 --> 00:42:10.719 to our Substack at substack .com slash at SteadyState1 00:42:10.719 --> 00:42:13.840 and follow our social media and join us right 00:42:13.840 --> 00:42:15.559 here next week for another exciting edition. 00:42:17.000 --> 00:42:19.219 The Steady State is a nonprofit organization 00:42:19.219 --> 00:42:22.199 working to sustain our democracy and national 00:42:22.199 --> 00:42:26.000 security. Join us and support our mission by 00:42:26.000 --> 00:42:29.199 visiting www .thesteadysate .org.