Welcome to Tech Talk. Bye.

Sure. The Privacy and Civil Liberties Oversight Board or PCOB is an independent agency within the executive branch that was created by Congress based on a recommendation of the nineeleven Commission. Our mission is to review federal counterterrorism programs to ensure they have appropriate safeguards for privacy and civil liberties. We are headed by a bipartisan five member board. All of the board members are appointed by the president and confirmed by the senate, and I am the chair, so one of the five members. And, of course, I'm here today speaking for myself as chair. Two more things I'll just mention are that our, functions include both oversight, so oversight of counterterrorism programs, and advice where we provide advice to intelligence agencies and other, government agencies. And our jurisdiction includes not only counterterrorism programs, strictly speaking, but also programs like section seven zero two that we're gonna be talking about today where there are multiple purposes that include counterterrorism.

Sure. That's a great question. If I can just step back a a a moment and just mention. So section seven zero two is section seven zero two of the Foreign Intelligence Surveillance Act or FISA, and it is scheduled to expire at the end of this year unless it is reauthorized by Congress. And that program, as you mentioned, authorizes the government to target foreigners who are located outside The United States. And when targeting them to collect their communications, both the content and metadata for foreign intelligence purposes. Now the reason why Americans should, care, very directly is that Americans' communications can be collected incidentally when they are on the other end of a communication with a foreigner who is targeted under the program. And incidental collection is a known and planned feature of the program. We want the government to know who their targets are talking to inside The United States. However, targets are not just so called bad guys, but can be any people who are likely to possess or communicate foreign intelligence information within the scope of topics approved by the foreign intelligence surveillance court. So an American could be completely unwitting and fairly far removed from any wrongdoing when they are talking to a target and having their communications collected through incidental collection. And we don't know the scope of incidental collection, although we know it is large. And this is actually one of the issues that Congress should be considering as it debates reauthorization of the program is requiring that the intelligence community actually come up with a an estimate

You're absolutely right that, the debate has largely focused on US person queries and that is a critical reform that is needed to address how they work. So queries in general are a way of searching through information in the seven zero two databases. They don't allow the government to collect new information, but but they're kind of like an Internet search where it returns information relevant to your search terms. And when government personnel use a search term that is related to a specific US person, which is a specific, U. S. Citizen or legal permanent resident, then that's called a U. S. Person query. And as we already discussed, targets can only be non Americans who are located outside The United States. And those people are people who don't have recognized Fourth Amendment rights. And as a result, there is no individualized judicial review at that targeting stage. Instead we only have programmatic review by the Foreign Intelligence Surveillance Court, including reviewing the targeting procedures, the rules for how targeting is done. But Americans do have Fourth Amendment rights in the privacy of their communications that are well recognized in the But in addition to not But in addition to not having any individualized judicial review at the targeting stage, under seven zero two, current rules also don't require any individualized judicial review before permitting government personnel to search through seven zero two databases seeking information about a specific American. And there's no other kind of independent external review either. So this is concerning, and a key reason why we need reform for U. S. Person queries. Another thing that's important to flag is, and people who are following this debate will be familiar, FBI in particular has been conducting millions of U. S. Person queries over the past several years. In 2022, they, had reduced that number substantially due to some reforms that they instituted, but it was still over 200,000 U. S. Person queries in that year. And from our review, these queries have not produced nearly the same value as the program overall. And for FBI in particular, outside the category of queries to help identify victims, we really haven't seen substantial, or really any contribution to criminal investigations or, criminal prosecutions. So this is kind of key these are some of the key reasons why there have been calls for reform of U. S. Person queries. Now in the Board's recommendations, we included what's recommendation three, which urges that Congress should require the government to seek judicial review from the FISA Court for U. S. Person query terms. And under the structure of that recommendation, we have urged that, Congress could maintain the same, query standard that is currently in place and only require that judicial review at the point where there's a hit. So it would enable the government personnel to run their query, and if there's no hit and it enables them to, for example, rule out rule out a lead, they would never have to go to the FISA court. But when there's a hit before reviewing the content of the communications returned by that query, they would have to get FISA court approval. And then the final piece, of the recommendation of the recommendation is including exceptions for exigent circumstances, emergency exception, and where the government has been able to obtain explicit consent from the individual, such as in the case of trying to of conducting these searches through the seven zero two databases really creates significant risks to privacy. Americans' communications collected through seven zero two can include very sensitive and private information, such as discussions of political religious views or personal financial information and mental and physical health information. And individualized judicial review is really a hallmark safeguard of our American legal system. And as I noted already, since there is no individualized judicial review at the targeting stage, it is critically important to protect Americans' privacy rights to have individualized judicial review at the queering stage. And then the final piece I'll mention in terms of why this is so important is that FBI in particular has continued to violate the existing rules for conducting queries. And this has included running improper queries, seeking information about social justice protesters, members of Congress, and participants in an FBI community relations program. And so FBI's persistent pattern of noncompliance over the years dramatically illustrates the need for independent, impartial,

Sure. So as I just explained, it's important that Congress should require individualized judicial review and approval for US person query terms. And the Board's recommendation on that topic is a policy recommendation based on the need to protect Americans' privacy interests as a policy matter. But when the government runs searches through seven zero two databases seeking information about specific Americans, this raises constitutional concerns as well. And as I've outlined in my separate statement, under the Fourth Amendment, when the government collects communications under Section seven zero two, that is a Fourth Amendment seizure. At the point when the government seeks to conduct a U. S. Greatest threat to Americans' constitutionally The greatest threat to Americans' constitutionally protected rights stem from FBI searches seeking evidence of a crime, which raise the possibility of criminal investigation and prosecution. And due to the sensitive nature of communications content in other contexts, law enforcement is required to obtain a probable cause warrant before accessing the content of communications. So, I have urged that for any queries by the FBI conducted at least in part to find evidence of a crime, the appropriate standard is probable cause. And this would create parity with criminal law in other contexts and ensure that Americans' communications are fully protected by the Fourth Amendment.

Sure. The board has made 19 recommendations in total, seven of which are for Congress. And yes, this includes a recommendation to narrow the scope of people who can be targeted under Section seven zero two. The specific recommendation, I'm going to just step back, it requires a little bit of background. The specific recommendation, relates to something called Executive Order 14,086, which was issued by President Biden a year ago to implement The United States commitments under negotiation with the EU for a new data privacy framework to enable cross border data flows. And that's in connection with, the Court of Justice of the European Union striking down something called the privacy shield, back in 2020. So under this agreement with the EU to protect the privacy interests of non Americans in their data, The United States made a number of commitments. And one of those captured in this executive order one four zero eight six states that intelligence agencies may only conduct signals intelligence, which is really surveillance, for 12 specific legitimate objectives. Now those objectives, are set forth in the executive order, but because it's an executive order, there is no necessary jurisdiction for the foreign intelligence surveillance court to enforce those. So our recommendation on this topic urges that congress should codify the 12 legitimate objectives for signals intelligence under this executive order. And that would mean that if in the future, the government were to seek to expand the purposes for seven zero two surveillance to something outside one of those 12 objectives, the FISA court could enforce that and prevent that surveillance. So one important piece from this recommendation is that it is a way to ensure that the government isn't conducting surveillance under seven zero two to the full scope of the definition of foreign intelligence information. The definition of foreign intelligence information under FISA is quite broad, and the 12 legitimate objectives cabin that and should provide some reassurance surveillance is, appropriately focused on these legitimate objectives.

So there are substantial areas of agreement among all five board members. First, all board members agree the program has value. All agree that significant reforms are needed. No one has called for the program to lapse, and no one has called for a clean reauthorization of the program. All five board members are concerned about the significant and serious compliance violations by the FBI. All board members agree that the changes made by FBI are welcome but not sufficient. Another thing that I think is important to note with regard to, areas where no one contests the report is the first, substantial part of the Board's report, well over 130 pages, are the factual narrative describing how the program operates. And we went through a process with the intelligence agencies and the Department of Justice for accuracy and classification review. And through that process, that factual narrative, those factual statements were verified and validated by the intelligence agencies and the Department of Justice, as well as factual statements made throughout the rest of the report. Now, of course, the report and the policy analysis and recommendations includes assessments by the board members, and those are the board members' opinions, but where there are factual statements, those have been verified and validated by the government. The other thing, you asked is whether this is unusual and the answer is absolutely not. Not at all unusual. The PCLABS authorizing statute explicitly calls for our reports to include what are called minority views. And our statute basically anticipates that there are going to likely be divisions among board members over the complex issues that are covered in our oversight. And historically, our reports have regularly included board member separate statements that explain areas of disagreement with board reports. And this has included the board's seminal reports that came out back in 2014, including the board's earlier report on section seven zero two, and the board's report on the telephone records program, as well as its, more recent 2020 report on the USA Freedom Act.

The p club's authorizing statute explicitly directs us to make our reports available to inform the public to the greatest extent possible consistent with the protection of classified information and applicable law. And so in connection with our reviews that involve classified information, notably our review of seven zero two, we make requests to the intelligence agencies for what's called public interest declassification, and this is pursuant to the executive order that governs classified information. And the director of national intelligence is the official who has the authority to balance the harm that would be expected to occur to national security from declassification information with the public interest in the value of disclosure. And so we made formal requests to the director of national intelligence for public interest declassification, and were successful in a fair amount of information being declassified. I guess I should say as an aside, of course, we recognize that a fair amount of information about section seven zero two will remain classified and appropriately so. And, we certainly respect the decisions by the DNI in this regard. But with regard to some information that was declassified in response to our requests for public interest declassification, the IC publicized this information before our report was published in connection with their ongoing efforts to educate members of Congress in connection with the reauthorization debate. For example, the IC declassified the number and topics of what are called the seven zero two certifications, which is the topics on which the foreign intelligence surveillance court has authorized collection of information. And specifically, they declassified that there are three certifications approved by the FISA court and these cover foreign governments and related entities, counterterrorism, and combating proliferation. In addition, there is substantial amount of information that has been declassified through our report, and I'll just give you a couple of examples. One is we provide much more detail on how the vast majority of FBI's US person queries don't actually return hits. For example, in 2022, only 1.58% of US person queries returned a hit. So that means for I'm not gonna do the math here, but for the vast majority of those queries when they run them, no information is coming back and just, you know, turning back to the recommendation where that the board has made on FISA court approval of US person query terms, that means that for well over 98% of those FBI queries, they could run them, find out that there was no hit likely, and then never need to go to the FISA court for approval. Another example I'll give you of information that was declassified with a report report is more detail on how Section seven zero two information has been used, or hasn't been used, in criminal investigations and prosecutions. As our report describes, there have been only nine cases in which the government has relied on Section seven zero two data in a criminal prosecution, and provided notice to those criminal defendants. And the government cannot point to any case in which it relied on evidence that was was returned based on a US person query.

Sure. So we have two other projects that we have all agreed are high priority projects for us on our agenda as well as a number of other projects. The two other high priority projects are first, our review of the government's efforts to combat domestic terrorism. And as you're aware, efforts to combat domestic terrorism have been increasing in focus and attention among government agencies for the past few years. And they raise a host of somewhat novel issues, concerning, for example, free speech rights and, the impact on, protected classes. And so we'll be looking at a lot of those issues. The second high priority project that we have identified is our ongoing work with regard to, executive order one four thousand and eighty six and the data privacy framework, that I mentioned earlier in connection with one of the board's recommendations. When President Biden issued that executive order, it invited the P club to play a number of roles under the executive order, including reviewing new policies and procedures issued by the intelligence agencies to provide enhanced safeguards when it conducts signals intelligence, and in reviewing a new redress process that has been created under the executive order. In addition to those two additional high priority projects, the board has a number of additional, also important projects on our docket that have, been on the docket for a longer period of time. And it is also important that we move forward with those projects and be able to publish, documents based on the important work that that our staff have been doing conducting those oversight reviews.