Foreign Intelligence Surveillance Act (FISA) Renewal: Is Reform Needed?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Tuesday, March 10, 2020, during a live teleforum conference call held exclusively for Federalist Society members. 

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is titled “Foreign Intelligence Surveillance Act, or FISA, Renewal: Is Reform Needed?” My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today we are very fortunate to have with us a terrific panel to discuss this topic. And starting with us is Mr. Greg Nojeim, who is the Director for the Freedom, Security and Technology Project at the Center for Democracy & Technology. In his capacity there, he is seeking to subject government surveillance to democratic control. Previously, he was the Associate Director and Chief Legislative Counsel for the ACLU’s Washington Legislative Office, focusing on terrorism, privacy and immigration issues.

 

Also with us today is Ken Wainstein, who is a longtime federal prosecutor who’s currently a partner with Davis Polk & Wardwell. Previously, he was General Counsel and Chief of Staff to the FBI, as well as Assistant Attorney General for National Security and Homeland Security Advisor to President George W. Bush. Moderating these two gentlemen today is Mr. Dan West, who is an associate with SCF Partners and a member of our Executive Committee here at The Federalist Society. Dan, the floor is yours.

 

Daniel G. West:  Thanks very much, Wes, and good morning to everybody. Thank you for joining us today. So as Wes noted, today we’ll discuss FISA. Three particular provisions of that law are set to expire this Saturday, March 15th, including the roving wiretap authority for the government to conduct surveillance on multiple phones; the authority to monitor individuals acting as lone wolfs, which is to say not necessarily at the direction of foreign powers; and the authority to access what are called business records, a category of information that has expanded significantly with recent technology.

 

So beyond these specific provisions, this decision point comes at a time of heightened scrutiny for FISA generally, given the recent Department of Justice and Inspector General report addressing the FBI’s use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing, quote, “serious concerns about the accuracy and completeness” of the FBI’s FISA applications in that case. So there have been recent reports that, while Congress is working to reach a deal, there’s some disagreement within both parties as to whether the law should be simply extended as is or reformed. So our panel today is going to discuss the mechanics of FISA, the recent controversy, and issues for Congress to consider as it determines whether and how to renew these key FISA provisions.

 

So Ken, we’d like you to get us started, and we’d ask you can you just give us some background on FISA? What capabilities does it provide? What are the legal mechanisms and statutory requirements for authorizing its use? What was the impetus for creating the program in 1978, and why and how did that program change during your time in government in the early 2000s?

 

Kenneth L. Wainstein:  Okay. Sure thing. Happy to lay out a little background. And I think actually it’s very important to spend a few minutes understanding the historical backdrop here because, in assessing FISA, how far it goes, how far it should go, what limitations should be placed on it, it’s sort of important to understand its intent and sort of why it originated and what it originated from.

 

So a few minutes on the background, so back part of the 1960s, electronic surveillance, wiretapping of then phones really was ungoverned by the courts. In 1968, the Supreme Court said that people had a reasonable expectation of privacy in their phone calls. It was ’67 I think. In ’68, then, Congress passed Title III, which is the law that proscribed the process that the government had to go through in going to a federal judge to get authorization to wiretap somebody for purposes of a criminal investigation.

 

That Supreme Court decision and then the federal legislation addressed only the criminal context and didn’t talk about wiretapping or electronic surveillance for national security. That was carved out. And then in the early ‘70s, sort of moving forward chronologically, you’ll recall that the Church Committee and the Pike Committee examined the practices of the intelligence community and disclosed that there had been some pretty terrible abuses by the intelligence community, the CIA, FBI, and others. And a number of those abuses related to electronic surveillance of the civil rights movement, Martin Luther King and the like.

 

And so there developed a political will to try to pass legislation that would require the Executive Branch to go to court in order to get permission before they could electronically surveil at least a U.S. person. That resulted, in 1978, in the passage of the Foreign Intelligence Surveillance Act, or FISA. In short, FISA, the statute set up the FISA court, which is a court that sits here in D.C. It’s now comprised of, I guess, 11 federal court judges selected from courts all around the country who hear applications from the Executive Branch through the Justice Department -- applications for surveillance of targets.

 

And FISA was set up to apply -- or passed to apply generally to surveillance in the United States, where Fourth Amendment rights apply, and largely directed at United States persons. But FISA set up a very different scheme than the Title III scheme that was set up in 1968 for criminal investigations. Instead of having to demonstrate that the person that the government wants to surveil is involved in criminal activity, the demonstration that’s required in FISA is that the target is an agent of a foreign power or a foreign power itself.

 

In other words, the purpose here is to collect foreign intelligence information, not evidence of a crime. And foreign intelligence information is information that helps the government protect citizens against espionage or foreign terrorism but also information that just relates to the conduct of a government’s foreign affairs: knowledge and information about what other governments are doing and the like. So it’s a completely different showing, and there’s a heightened showing for U.S. persons.

 

You have to -- without getting into the details, you have to show that the U.S. person, as opposed to a non-U.S. person, is involved or may be involved in some kind of nefarious activity. But the bottom line is if you can show a person’s an agent of a foreign power by probable cause -- then you’re authorized to get surveillance authorization from the FISA court. And importantly, that FISA court sits in secret, authorizes surveillances in secret. And those surveillances -- the fact of the surveillances and the applications and the orders authorizing the surveillances remain secret, which of course is by necessity because investigating foreign threats has to be done in secret and not made open for the world to see.

 

So that’s the design of the FISA process as it was put in place in 1978. And then, over time, FISA was expanded to cover not only electronic surveillance, wiretapping the phones and then, later on, emails and the like, but also physical search authority. The government could go to the FISA court to get authorization to do physical searches to find foreign intelligence information, in other words, going into someone’s house or office.

 

They then passed legislation allowing the FISA court to authorize PIN registers and trap and trace, which are devices that can register the ingoing and outgoing phone calls or emails on a target. And then also, they added a provision that I think Dan just mentioned, which was the business records provision that authorized the FISA court to authorize the Executive Branch to issue -- to seek business records and the like through an order from the FISA court. Those are the authorities that fall under FISA.

 

And then sort of taking those authorities up to now, there have been a number of changes. And the two that I’ll mention very briefly are the changes that were put in place after 9/11. So six weeks after 9/11, the Patriot Act was passed, and that was a compilation of sort of a number of different provisions that gave the -- or enhanced the government’s abilities to go after terrorists, specifically. But in terms of FISA, it added a couple important new authorities.

 

It added the roving wiretap, which is another one of the provisions that’s up for renewal this week. And that is authority for the FISA court to allow the Executive Branch to, especially in a telephone context, let’s say, or an email context -- if somebody is, let’s say, using one phone and then discarding it and using burner phones in order to avoid detection and to avoid electronic surveillance, the roving authority provides a mechanism by which the government can surveil that person from phone to phone to phone so that their attempts to surveil the person’s not foiled by them using these burner phones that they use once and throw away.

 

Also, the Patriot act enhanced FISA in several ways. The business records exception was made easier to use in a very fundamental way, and also the PIN register trap and trace authority was made easier to use. So those are some of the main things that we saw in the Patriot Act that really made the FISA authority a stronger tool in counter terrorism and other national security investigations.

 

And then the last thing I’d mention is, just to fast forward to 2008, we had -- Congress passed the FISA Amendments Act that summer. And that was a pretty significant change. And I won’t get into all the details. But the bottom line is FISA, when passed in 1978 -- the drafters used the technology of the time to try to determine which surveillances needed to be -- needed authorization of the FISA court and which ones didn’t.

 

And of course, since 1978, communications technology has dramatically changed. And while, back in 1978, most of the phone calls that might have been run over wire and cables were domestic. Now, emails go all over the world by cable, which is a wire communication. So the terms of the 1978 statute started to make it so that the Executive Branch had to go to the FISA court to surveil a lot of communications that were purely international or from one person who was overseas to another person who was overseas, which was not the intention of the original FISA.

 

So once again, without getting into the nitty-gritty, the FISA Amendments Act basically created a new type of authority within FISA that allowed the government to surveil or target somebody for electronic surveillance, if that person was believed to be overseas, without having to go to the FISA court, which was intended to avoid the FISA obligation, the obligation of going to the FISA court creeping into what are purely international communications that Congress originally had not intended to fall within FISA. That was a tremendously important change. And it’s actually been a very important tool for the government targeting people overseas who mean the -- are either involved in international terrorism or espionage or national security threats against the United States.

 

That has been a tremendously important step forward for FISA. And that authorization, that new tool was actually renewed, I think, two years ago. It is not up for renewal this go-round. But we are, just to wind it up -- we’re now a few days away from the business records, the roving wiretap, and the lone wolf provision -- from them needing to be renewed, as they have been, I think, two or three times so far. All right. So there’s just a general backdrop to FISA from 1978 to today.

 

Daniel G. West:  Yeah. Thank you very much for that, Ken. And it sounds like the act was designed to address some very important goals and has been important from a national security perspective. I’d like to shift over to Greg here and say that there’s also been significant concerns about balancing those security capabilities that FISA provides with the protection of privacy and civil liberties.

 

So Greg, can you give us an overview of some of those civil liberties issues that have caused concerns with FISA and how do they relate to the provisions of FISA that will expire this Saturday, on March 15th? And what are the biggest problems, in your eyes, with FISA as it stands today?

 

Gregory T. Nojeim:  First, thank you for having me on. I really appreciate the opportunity to talk to folks. I want to underline one thing that Ken said at the outset. The purpose of FISA was really to protect U.S. persons and people in the United States against otherwise unbridled surveillance for national security reasons, meaning that the President or the Attorney General could conduct it without judicial oversight.

 

So FISA was seen as a way to bring that power under some level of control. So when you hear folks say, “Hey, the FISA court shouldn’t be allowed to surveil Americans,” you’ve got to ask the next question. What’s the alternative? What protections would Americans get if not the FISA court. So it does serve an important role. And the FISA surveillance regime was designed to be a protective one.

 

I think, though, that as the years have gone by, it’s fair to start questioning whether it is sufficient protective or not, whether things have worked out the way Congress back in 1978 thought they would, and whether Congress, when it was adding new authorities in 2008 -- whether that surveillance authority was being used the way Congress intended. Take the original FISA. As Ken said, it’s the counterpart to the criminal version of wiretapping, which requires probable cause and a lot of steps to minimize the collection of communications that are not really the subject of the court order. You have to have probable cause of crime on the criminal side.

 

On the intelligence side, on the FISA side, probable cause that the person is an agent of a foreign power, that’s a much lower, much more flexible standard. And it’s easier to meet, in my view, than is a criminal probable cause requirement. And remember, in the FISA context, as well as in the context of seeking criminal wiretapping warrants, it’s only the government in the room.

 

The government is making the case to a court, to a judge, that there’s either probable cause of crime or probable cause that the person’s an agent of a foreign power. And seeing that sometimes that showing by the government hasn’t been complete has lead Congress to add some protections to the FISA statute recently. One of those protections was to permit the court to appoint an amicus, a person who could argue to the court from the perspective of the person who might be subject to the surveillance that that person isn’t an agent of foreign power or who could help the court with technical matters, such as how the surveillance is conducted. Because now, it’s actually become very complicated for judges to understand how intelligence surveillance is conducted.

 

It’s important to keep in mind that in the FISA world, unlike the criminal world, the target of the surveillance never gets a chance to challenge it effectively because the target of the surveillance doesn’t get to see the application, even in the case when the target is being prosecuted criminally. Normally, there is no criminal prosecution of the target. A target is surveilled surreptitiously and never knows it happened. There’s no notice. The only time they get notice is when they get charged, and the notice does not come with a meaningful opportunity to challenge the surveillance because the person who is charged is not able to get the application because it’s classified.

 

There’s one more thing to consider here. The deal that was originally put in place in 1978, Americans could count on the protection of the FISA court. The FISA court wouldn’t allow for Americans’ communications to be targeted unless there was probable cause they were an agent of a foreign power. Those protections have been eroded in part because of the advance of technology and in part because of changes to FISA that Congress has put in place.

 

Let me explain how that’s happening. Back in 1978, most people didn’t routinely communicate with people outside the United States. Most communications of Americans didn’t go outside the United States and then back inside when the person was communicating wholly with people inside the United States. So the premise of FISA, that you can separate domestic and international communications, was perhaps somewhat true in 1978 but is much less true today.

 

Today, when Americans’ communications are collected for intelligence reasons, it’s usually not because they were the target of surveillance. Rather, it’s usually because somebody else was the target and they were talking to them, that somebody else was the CC on an email that an American also received. There’s just so many cases now where we communicate with foreigners and we communicate internationally that the notion that we can easily divide communications between domestic and foreign and reserve the strong protections for the domestic communications -- that whole premise is now being called into question.

 

And Americans, again, they seldom receive -- their communications actually seldom receive the protection of that probable cause determination because usually, when the U.S. government obtains their communications, it’s not because they were targeted. It’s because someone else was targeted, and their communications were intentionally, incidentally collected when that other person was targeted.

 

Daniel G. West:  That makes sense, Greg. Thank you for laying out those concerns. And I think it’s fair to say that recently those concerns have received a lot more attention, both in the media and in Congress, following the controversy surrounding the surveillance that was conducted during the FBI’s investigation into alleged foreign interference in the 2016 presidential election. As we said earlier, the FISA court expressed serious concerns about the FBI’s FISA applications in that case, and it’s lead to numerous post-mortems. There’s a memo from Congressman Devin Nunes. There’s a report that’s got a lot of attention from the Inspector General of the Department of Justice.

 

So Greg, can you tell us a bit about that controversy. What do we know happened? What’s alleged to have happened, and what did we learn from the IG’s report? And even taking a step back, why are people so worked up over this?

 

Gregory T. Nojeim:  I think people are worked up because it’s really the first time -- first time in my recollection anyway that intelligence surveillance of an American was shown to have been completely inappropriate and was shown to have been based on some falsehoods and some misleading by the FBI and, through the Department of Justice, misleading all the way up to the FISA court. So the Inspector General report showed that the government just wasn’t forthcoming when it sought a FISA court order to wiretap Trump campaign advisor Carter Page. And Page is an American, so he’s subject -- he’s in the United States, or he was at certain times. But he’s subject to the most protective regime that we have, and yet it failed.

 

One failure was the government’s reliance on information in the infamous Steele Dossier. That consisted of dirt that a British intelligence agent—his name was Steele—had gathered on then-candidate Donald Trump. The government misled the FISA court into thinking that the FBI had independently and fully corroborated Steele’s reporting, but that just wasn’t the case. Even worse than that, Steele’s key source contradicted statements attributed to the source that actually appeared in the government’s original application for a FISA order.

 

And the government didn’t disclose those contradictions to the FISA court. It was misleading. It omitted mentioning that Carter Page—again, he’s the surveillance target—had been an operational contact for the CIA for about five years and that his CIA handler had positively assessed Carter Page’s honesty.

 

The government, instead of disclosing that to the FISA court, it used Page’s contacts with Russian agents as evidence that he was an agent of Russia when, in fact, Page had been reporting those contacts to his CIA handler, showing that he’s not at all an agent. Instead, he’s helping our government with its intelligence surveillance work. The most egregious thing, the really most egregious thing the IG uncovered was the CIA sending an email indicating that Carter Page was a source for the CIA and an FBI lawyer -- a lawyer for the FBI altered that email to say that Page was not a source for the CIA.

 

And that’s really important because, again, the FISA court is assessing is this guy an agent of Russia or not. And he was a source for the CIA. That makes him probably not an agent. And the FBI lawyer altered the email to mislead the court. Those are really egregious problems, really terrible things that should never happen in a FISA application, in FISA proceedings.

 

And you know what’s really troubling about this? The FBI and DOJ people who were conducting this investigation, they knew it was sensitive. They knew their actions might one day be examined critically, and yet they still had these really significant problems in the FISA application for Carter Page surveillance.

 

Daniel G. West:  So in the aftermath of that, FBI Director Christopher Wray wrote in his declaration to the FISA court that the conduct in question, quote, “is unacceptable and unrepresentative of the FBI as an institution.” I think it’s actually worth quoting at a little bit of length from David Kris’ brief to the FISA court, which had appointed him as amicus to kind of take a look at what happened here.

 

So David Kris wrote, quote, “The errors in the FISA applications on Carter Page were significant and serious. They were not, in my experience, the kind of errors you would expect to find in every case. It’s not acceptable to rely on a confidential human source and then not check with his FBI handler in describing is bono fides to the FISA court. It’s not acceptable to omit some potential exculpatory recorded statements made by the FISA target to a source. It’s not acceptable to leave unresolved credibility and perhaps factual disputes behind a key source and his primary sub-source. It’s not acceptable after closing the key source to continue to get information from him through a staffer, thereby effectively treating him as a sub-source of the staffer. And it’s certainly not acceptable for an FBI attorney to alter an email from another intelligence community agency as to whether the other agency had contact with the FISA target or treated him as a source.”

 

That’s the end of the quote there. So Ken, I’d like to shift back over to you. You once served as general counsel to the FBI. You served as chief of staff to then director Robert Mueller. Do you agree with Kris’ assessment? And why and how do you think all this could have happened? My last question would be did any of this change your opinion at all of the FISA program?

 

Kenneth L. Wainstein:  Fair questions. So first, I completely agree with the reaction of Director Chris Wray and David Kris. Both of them made the assessment this a very serious situation, and these were very serious failings. And you made this point, and Greg’s made this point. But these are failings by individuals within the Bureau, but they’re failings of candor.

 

And look, law enforcement only works if people believe that law enforcement officers are telling the truth, in general, whether that’s on the witness stand in a criminal trial or to a federal judge getting a search warrant or going to the FISA court to ask for a FISA order. Courts and the American people depend on law enforcement being candid an honest. It’s absolutely fundamental.

 

And it’s particularly fundamental in a situation like this where, as Greg has highlighted, this is all done ex parte. In other words, the FBI and the Justice Department attorneys who are involved in applying for FISA court orders go in, give their application to the FISA court judge. They speak to the FISA court judge without defense counsel being there. They’re amici now, in particular circumstances. But it really is an ex parte. It’s a one-sided operation, which of course is what you do to get a search warrant in the criminal context, too, but all the more important that the court be able to rely on the absolute accuracy of what’s put in those applications.

 

So that was a real failing to find that this wasn’t absolutely accurate, and, in fact, there was some really serious information that was left out. I will say this. In terms of the response to the IG report and its findings about these failings, I’ve been heartened by the response I’ve seen. Chris Wray stepped up and owned it on behalf of the FBI, like a good leader should. And it’s been admirable to see him deal with it.

 

David Kris, if you’ve read his brief, does a very good job assessing the problem, assessing the FBI’s proposed reforms, finding that they didn’t go far enough and recommending some better ones. Judge Jeb Boasberg, who’s the presiding judge of the FISA court, has handled it quite well. So these are serious people who are stepping up in a very serious time. I’ve got to say it’s good to see.

 

But we need to recognize that this is a serious problem. And it’s not the only time this has happened. Back in 2000, there was a similar situation where the FISA court found misrepresentations in their applications. And it lead to procedures that addressed a lot of the problems that arose in those applications. But obviously, this is the second time this has happened, so it calls for serious steps.

 

In terms of how this could have happened, David Kris’ brief does a good job of laying out sort of his thoughts about it. And there’s nobody who knows more about the FISA process than David. He’s been up to his eyeballs in it since before 9/11. But it’s obviously individual failings and misjudgments. You have an FBI attorney who actually manipulated an email and passed it on as fact, which is inexplicable and unforgivable. And then you have other people who made misjudgments as to what needed to be put before the FISA court and what didn’t need to be put before the FISA court.

 

But in addition to just individual failings, you have the fact that it’s a fairly complex process. And this is not by way of excusing anything. But people need to understand that the FISA court process is incredibly elaborate because, you know -- and you can see that by comparison for the process for getting a Title III criminal order warrant where, you know, in short, an AUSA and an FBI agent sit down. They put together the application, put together the affidavit that lays out probable cause.

 

They have to get approval from main justice to do it. But they then take the application into the federal court judge who’s there in the same town as them. So the agent who knows the facts is the one who’s swearing to the affidavit. So that minimizes the number of -- or the amount of miscommunication and the possibility of miscommunication.

 

The FISA court process is very different to date. You have the sealed agent who wants the FISA court -- FISA surveillance working through the General Counsel’s Office of the FBI headquarters in D.C. that in turn works through the Office of Intelligence, which is in the National Security Division at main Justice. And they then end up going to the FISA court. And the field agent isn’t the one who actually swears to the declaration that’s of probable cause in the application. It’s a supervisor in headquarters.

 

So you’ve got all these sort of steps in this process, and every step raises the -- or increases the possibility that facts get either mangled or they get lost or people are not aware of things that should end up in the FISA -- the ultimate FISA court application. That was really the main problem that lead to the 2000 issue I referenced a little while ago. And I think there’s an element of that behind some of the problems in the Carter Page application.

 

So some of the recommendations that we’ve seen -- David Kris says we should change the process and have the actual field agent be the declarant, which will enhance personal accountability for the facts and reduce the number of steps in the process where errors can creep in. And then also, just generally, I think he makes a very strong point that there should be stronger personal accountability. People shouldn’t have the feeling that there’s so many hands if this process if I miss something one of the other hands is going to catch it. Rather, people need to be held accountable if anything is found to be wrong about a FISA court application.

 

And we are seeing that. In fact, I think just in the last few days the FISA court issued its order sort of accepting the FBI’s proposed reforms but also banning from the FISA court those FBI officials who were involved in the Carter Page application, making it very clear -- sent a very clear message that, if you make mistakes in this process, there’s going to be accountability. So I think we’re at a point now where we’ll see whether these reforms actually take root. I’m hopeful, given the people who are in place that I just referenced, that they will.

 

Daniel G. West:  Ken, Greg mentioned a lot of concerns earlier about FISA, about civil liberties, about privacy. It’d be great to hear from you a bit about the importance of the capabilities that FISA provides. If Congress were to curtail the program in a significant way or even just choose not to renew it all, what would you be worried about?

 

Kenneth L. Wainstein:  Right. And I guess that’s an important point. There’s consternation about the problems that surfaced in the IG report in the Carter Page application. And those are being addressed in the way I just described. But then also, that happens to coincide with the time for renewal for these three provisions, very specific provisions.

 

This isn’t the whole FISA authority. It’s these three provisions: the business records, roving wiretap, and the lone wolf provision. I don’t think we mentioned earlier but the lone wolf provision is the one that allows the FISA court to authorize surveillance of someone who’s connected to foreign terrorism but the government’s not able to identify exactly which terrorist group that person’s connected to. Those are three important provisions.

 

And I think it’s misguided to say, well, we have concerns about FISA and what happened in the Carter Page situation. And therefore, we’re going to not renew these three specific provisions. That’s sort of the first point I’d make. And then, even if you have concerns about FISA, the concerns here that were highlighted with the Carter Page situation are concerns about how the process was carried out by people in the Executive Branch, not concerns with the way -- the process that’s proscribed by FISA or the authority that’s proscribed by FISA.

 

And everybody will recognize those who are very concerned about limitations for purposes of privacy and civil liberties and, of course, other people on the other side who are strong national security hawks -- everybody recognizes that we need a tool to try to prevent foreign terrorists, foreign spies, proliferators of weapons of mass destruction, to try to find out what those people are doing before they attack us, undermine our elections as we saw a few years ago and that kind of thing. So FISA is the tool for that, and it’s absolutely critical for purposes of finding out what the designs of bad actors, bad foreign actors are before those designs become real attacks on us and our democracy.

 

Daniel G. West:  Thank you for that, Ken. Greg, what do you think about the proposals? The FBI obviously proposed some reforms. Others have said, as Ken mentioned, that those proposals are insufficient, and they’ve offered their own reforms. What do you think is the answer here, both with respect to the recent events and preventing those, even if they are the actions of individuals, or at a broader level of FISA?

 

Gregory T. Nojeim:  We can kind of divide the needed reforms into many buckets, but let’s just choose two. One’s the reforms to the expiring provisions, the ones that expire on Saturday. And the other is reforms that I think are clearly needed as a result of what the Inspector General found in the Carter Page warrant application.

 

With respect to the expiring provisions, the one that’s really, to my mind, the most troubling, most problematic provision is Section 215 and, in particular, the call detail records portion of Section 215. The CDR portion of Section 215 allows the government, when it shows that there’s reasonable, articulable suspicion, that a person identified by a specific selection term or device is associated with an agent of a foreign power, engaged in international terrorism or activities in preparation therefore, they can get an order the compels phone companies to turn over records about those targets and who they called and who those people called, as well. Okay? So you’ve got these two hobs.

 

There were 11 targets in the last year. And those mere 11 targets generated 434 million call detail records going to the government, records of calls, usually within the United States going to the government, who called whom, when and for how long did they speak. The NSA looked at the program recently, said that the cost outweighed the value, and still submitted a letter to Congress, to the DNI, seeking reauthorization of the program. It seems to me that a program that isn’t productive, except in terms of really challenging privacy, ought to be abandoned totally and that Congress ought not to reauthorize it.

 

I think the other provisions that are coming up are less controversial. Congress also has to deal with changes to constitutional rights that have recently been recognized by the Supreme Court, in particular in the Carpenter case. In that case, the Court held in the criminal context that, if the government wants seven days or more of stored location information generated by the operation of a cellular telephone or another mobile device, it has to get a warrant based on probable cause.

 

That is a new rule. It is a new determination by the Court. It’s an extension of Fourth Amendment rights, and it’s one that hasn’t been -- the parameters of it haven’t been publicly explored on the intelligence side. So Congress ought to pass legislation that translates the Carpenter decision, privacy of location information, into the intelligence context as well.

 

To deal with the Carter Page FISA application, there have been a number of proposals made, but I don’t think any legislative ones have really caught on. The one that I think definitely needs to be made is, to follow up on what Ken said, that government agents who appear in front of the court, they have a duty of candor. They have to tell the court not only what information supports their warrant application but also the information that derogates from that finding.

 

In other words, if they don’t tell the court the whole truth, nobody will. There’s usually not an amicus in the proceedings. And when there is one, the amicus doesn’t have access to all the information that the government lawyers have. So there ought to be an explicit duty of candor in the statute that the court implies is there now but that it doesn’t seem abided by in at least some applications that are before the court.

 

There are other ideas out there right now. Again, none have really gelled, and I’m not sure that we’re going to see significant reforms that come out of the Carter Page debacle because there hasn’t been a really gelling around what those reforms ought to be.

 

Daniel G. West:  Ken, I just want to give you a chance to respond to any of those suggestions that were discussed.

 

Kenneth L. Wainstein:  I would just say I encourage the effort to think about different ways that the oversight can be conducted. Limitations can be placed where appropriate on FISA. And look, FISA needs to be something that can be used quickly because, if you’ve got a hot terrorism investigation, you need to be able to operate quickly and get the authority you need fast. So unnecessary oversight or unnecessary limitations can kill the utility of the tool.

 

At the same time, we’ve seen that, as we’ve gone through each of the sort of waves of change to FISA that I detailed at the outside of the call, there have been additional oversight mechanisms put in place, additional limitations. For instance, I mentioned the FISA Amendments Act that provided new authority for targeting people outside the United States. In conjunction with that, at the same time, Congress applied a requirement that you have to go to the FISA court to get an order if it’s a U.S. person overseas. So no matter where the U.S. person is now, inside or outside the United States, you’ve got to get a FISA court order.

 

That was a big change and, I think, an enhancement in privacy protections for U.S. persons. We’ve seen that over and over. And that’s a good debate to have because, with the change in technology, change in circumstances, change in threat—so for example, now we’re talking about the threat to elections in a way we didn’t do ten years ago—we need to constantly think about new uses of FISA and constantly think about new ways to make sure those uses remain true to our constitutional protections.

 

Daniel G. West:  Great. Well, Wes, let’s open it up and see if the audience has any questions.

 

Wesley Hodges:  Fantastic. Well, thank you so much, Dan, and to our terrific panel today. Here’s our first caller.

 

Lenore Ostrowsky:  Hi. This is Lenore Ostrowsky in Washington, D.C. Part of the problem appears to the be the definition of a “foreign agent,” as you mentioned. That definition, because of the change in electronic practices over the last ten or 20 years, should be changed, don’t you think? Merely emailing someone who is in another country sounds to me like something the last administration would have enjoyed and probably did enjoy as a rationale for going further with it, with the investigation. Can you comment on what the changes should be, if any, to that definition?

 

Daniel G. West:  Ken, I actually don’t have the definition handy. Do you?

 

Kenneth L. Wainstein:  Yeah. I do. But I think it sounds like she might be getting to the incidental collection issue?

 

Lenore Ostrowsky:  I don’t know what you mean by incidental question. If one rationale for going to a FISA court and getting an order is simply that someone is suspected of being an agent of a foreign government, well, as you pointed out, that could be nearly close to 300 million people who are supposed to use electronic communications. What is the standard for establishing someone as an agent of a foreign government?

 

Kenneth L. Wainstein:  I’ll go ahead and start off with that. Good question and it’s actually a fairly complicated definition. It could be anybody working on behalf of a foreign government here in the United States. It could be that. So it could be a facility, that is a building, a consulate, that kind of thing. That would be a foreign power. And it could be a U.S. person who’s working either overtly or covertly on behalf of a foreign power.

 

So the idea of FISA, back to sort of the first principles of FISA, was to create a court approval mechanism for the government’s surveillance of people for national security purposes, to get foreign intelligence information. And that encompasses all the things I just described. I think what you’re raising about the possibility of having your emails get surveilled just because you’re emailing outside the United States, I believe that gets not to the agent of a foreign power definition but rather that gets to the fact that, as Greg was saying earlier, if the government is authorized to target somebody overseas for -- under FISA or under the FISA Amendments Act that I just talked about, then -- and you happen to be in touch with that person, even if you’re innocent as the day is long and you have nothing to do with whatever it is that person might be doing that caused the government to want to surveil him or her, your emails will get caught up as incidental collection because you’re communicating with somebody who is under authorized surveillance.

 

And that’s the problem that Greg was talking about that results in a good bit of U.S. person communications being collected. But it’s not because those U.S. persons were originally targeted. Rather, somebody’s being targeted under authority, whether it’s FISA court authority or authority that the NSA has to collect overseas completely outside of FISA. But those people are in communications with the U.S. persons, and their communications are getting collected.

 

Lenore Ostrowsky:  That doesn’t exactly answer what I meant. What I meant was a crooked administration can use any evidence of contact with a foreign person as sufficient rationale to go after the unfortunate person who did. For instance, when people act as foreign agents, they generally don’t sign on the dotted line. If you happen to meet at a bar someone who once worked or does work for MI5 or in fact any government agent, how would you know? You don’t know.

 

So the question is what establishes the agency? That is does it have to be an official security breech? In other words, they can use anyone who is ill intentioned -- and in fact, these FBI agents were -- can use any excuse of established contact with someone in a foreign country. It doesn’t even have to be someone working for a particular security service or anything else. That is what I think the public would mind.

 

Daniel G. West:  Yeah. Thank you for the question. Is that true, Ken and Greg? Is it the case and could you maybe talk about some things that would and would not suffice to establish that foreign agent status?

 

Gregory T. Nojeim:  The statute requires that the person act for or on behalf of a foreign power. Foreign power is usually a foreign government, owned corporation, or a foreign terrorist organization. So they have to act on or behalf of the foreign power which engages in clandestine intelligence activities in the United States, contrary to the interests of the United States. That is a pretty flexible definition. I don’t know what the status of public law is on exactly what conduct constitutes agency. I’m sure that merely emailing a foreigner does not make you an agent. But I’m not sure about exactly what conduct crosses the line into agency.

 

Kenneth L. Wainstein:  Yeah. The FISA court -- the FISA statute has different definitions of agent of foreign power for a non-U.S. person than for a U.S. person. And it’s a multipart definition for agent for a foreign power for a U.S. person. But in short, there needs to be some indicia that that U.S. person is acting nefariously on behalf of the foreign power. So it’s a more demanding definition than it is for a non-U.S. person. So it could just be somebody who works for the foreign government, a non-U.S. person working for a foreign government here in the United States. That can be an agent of foreign power. If it’s a U.S. person, there would have to be some indicia that that person is engaged in some kind of clandestine activities for the foreign power.

 

Daniel G. West:  Thanks for that question.

 

Lenore Ostrowsky:  Well, it obviously was sufficient to stop them going after Carter Page. In other words, the definitions are not sufficient, and the FISA court was most happy to roll over and give them whatever they wanted.

 

Daniel G. West:  Thanks for that question and for that insight. And it definitely, I think, is something that we should all take a closer look at. Wes, do we have any other questions?

 

Wesley Hodges:  It looks like we do have one more question. Let’s get to that caller.

 

Fred Young:  Fred Young in Wisconsin. Following up on the woman’s point, the conduct was improper. And it would seem to me that there ought to be a consequence. It seems to me that if the FBI agent misleads the court, there ought to be some consequence to that agent, instead of talking about the rules. The corrupt individual out to be subject to some sort of punishment. Would appreciate your comment on that.

 

Kenneth L. Wainstein:  I think that’s a good point. My understanding is that, especially the FBI person who changed the email who’s facing investigation right now -- I could imagine that would be a criminal violation. And I think that’s being handled -- taken very seriously. And I think I read that there’s disciplinary action being considered as to others who were involved in the process.

 

But I think you make a broader point, which is I think one of the ones I was trying to make earlier, that two separate issues here. One is individual conduct. And this applies across the board in criminal investigations. You have police officers who, if someone does the wrong thing, look at that person, hold them accountable for it. But that doesn’t necessarily mean that the authorities they were wielding should all be scaled back but rather there should be stronger oversight, stronger accountability being applied to people.

 

And that’s why I applaud what Greg says, which is we should be looking at where there might need to be oversight and limitations if need be. But don’t throw the baby out with the bath water because you have several people who didn’t do what they should have done.

 

Gregory T. Nojeim:  Yeah. But at least we’ve got to throw out the bathwater. And it’s not clear to me that we’re evening doing that. I’m not confident that the reforms that the FBI has proposed are going to be sufficient to restore confidence in this process. I think there needs to be some statutory changes, including as I said earlier imposing a duty of candor.

 

The House Intelligence Committee Republicans have proposed legislation that would require the government in its application, when it’s making statements that it hasn’t fully verified, to be upfront with the court about the process it engaged in to try to verify those statements and to be upfront with the court about anything that they found that cast doubt on the veracity of those statements. I think changes like that are needed because, otherwise, we’re going to get process changes that are probably going to be difficult for the court to enforce.

 

Daniel G. West:  Thanks very much for that, to both Ken and Greg for sharing your time and for sharing your expertise, and thanks also for the audience for dialing in and listening and asking some great questions. So Wes, with that, I think I’ll turn it back to you.

 

Wesley Hodges:  Well, thank you, Dan. The sentiment is here as well. On behalf of The Federalist Society, I would like to thank Greg, Ken, and yourself, Dan, for the benefit of your valuable time and expertise today. We welcome all of your feedback at [email protected]. Thank you all for joining us, for participating and listening today. We are now adjourned.

 

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