Lawfare Archive: Klein and Cordero on the Latest FISA Numbers

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from the law for archives through June 19th, 2020 sets.

On June 12th, at midnight, the controversial section 702 of the Foreign Intelligence Surveillance Act, or FISA, expired after Congress failed to renew it in time. Section 702 allowed the US intelligence community to collect and query data on communications

between foreigners overseas without a warrant. A byproduct of doing so is that communications between foreigners and US citizens were also included in these queries, raising concerns about violations of privacy.

For today's archive, I chose an episode from May 31, 2022, in which Benjamin would have sat down with Kerry Cordero of the Center for a New American Security at Added Pline of the Strauss Center at the University of Texas.

To discuss that, years release of transparency data for FISA. They consider changes in the number of title 1 applications of both traditional FISA and Section 702. [MUSIC PLAYING] I'm Benjamin Lewis, and this is the law fair podcast, May 31, 2022.

A few weeks ago, the Office of the Director of National Intelligence released the latest FISA transparency data. It was notable in at least two major respects. The continued decline of traditional title 1 FISA applications. That is, warrants for individual surveillance.

And, separately, the rather large number of US persons who had been searched under so-called 702 surveillance. The news, the data, and what it all means was the subject of law fair live a couple of weeks ago with Kerry Cordero of the Center for a New American Security

and Added Pline of the Strauss Center at the University of Texas. We talked about the 702 number. Is it really big or does it just seem big? We talked about what's causing the decline

in traditional FISA. We talked about whether reforms in the wake of the Carter Page debacle have gone too far. And we talked about where it is all going from here. It's the law fair podcast, May 31st,

Cline and Cordero on the latest FISA numbers. Kerry, get us started. What is this transparency report?

“And what is interesting and special about this one this year?”

All right, well, Ben and Adam, it's going to be here with you guys and the law fair live group. So this transparency report is part of an annual report that is issued by the Intelligence Community. It's coordinated and reported out by the Office

of the Director of National Intelligence. And it contains a wide array of statistics at an unclassified level that pertain not actually just to FISA, the Foreign Intelligence Surailants Act, but to activities that are done under FISA,

as well as some other national security authorities and intelligence community policies regarding how information is released and disseminated throughout the intelligence community. I think there's a few big things

that I take away from this new report, which is issued usually every April annually.

I think it's worth just pausing on the amount of information that the intelligence community releases in this report.

“So when I think back to when I started working on these reports,”

the earlier prior analog version of this report to 20 years ago, really, at the Justice Department. - You worked on FISA at the Justice Department. You were the Chief of Staff at the National Security Division.

- I was never Chief of Staff.

I was counsel to the last position that I had at the Justice Department was counsel, but I started out as a law student and then a junior attorney there. And one of the early tasks that I had was compiling information

for annual statistical reports. And so when I look at this report, all 37 pages of it in what is basically a glossy report that comes out from the intelligence community, there's so much information here

that is now declassified primarily as a result of initiatives at the intelligence community as well as changes to the law itself that Congress has made over the last few years, requiring release of so much of this information.

There is just so much information that not so long ago was highly, highly declassified. And now is all out there for the expert community in the media and the public to be aware of. So I just wanna highlight that.

And maybe we can talk a little bit more as the conversation evolves, but just the evolution of the transparency regarding this information,

“I think is really remarkable and notable.”

The two statistics that I imagined we will spend our time talking about is one just the overall number of applications, the Title I probable cause-based applications. And that number decreased during the pandemic. So the report last year also had a very significantly

lower number of applications

than had been conducted in basically the 20 years prior.

And I was expecting to see a little bit of a bump this year as pandemic restrictions eased, but instead the number went down again. So I imagine we'll talk some about that, but I think that decrease in the number of applications

and associated decrease in the number of targets of probable cause-based orders is a significant issue for national security. And then second is the variety of numbers that are in this report that have to do with queries

or basically when the intelligence community accesses, data that has obtained personal intersection 702. So this pertains to when the government is targeting someone that they believe to reasonably be outside the United States on a lower standard than probable cause.

So just that the purpose of the collection is to collect foreign intelligence information.

And then the intelligence community accesses that information

or searches for a US person. Those statistics, there's a variety of statistics in the report that pertains to that, some of which are higher than prior years.

“And so I think that's probably the second or the third,”

if I include just the observation on transparency, mean takeaway that I have from this report. So I'll pause there and hand it over to Adam for his observations. - So Adam, what are your big takeaways?

- The big picks are largely agree with Carrie, and I appreciate it that she reminds up not to take this for granted. No one else does this. No one else has ever done this

in operating a secret intelligence, set of secret intelligence services and publishing this much information about what they are doing. This is a nasima to people involved in espionage

and clandestine activities, because any information you reveal, your adversaries will mind for useful insights that they can then turn against you. And so the fact that we've achieved

this level of transparency where we've got 40 pages of very, very precise statistics that are coming out every year, I think it's pretty remarkable. It's an achievement by the people

who are doing it, it's an achievement by the people who in Congress have mandated some of these disclosures and by the advocates on the outside who have demanded improvements and transparency over the years.

And I think it's quite healthy for our system. The more things are shrouded in secrecy, the more skepticism and mistrust they breed and revealing misinformation gives people a sense of the scale

of what the government is doing. So I think this is something to be celebrated. In terms of what we can glean from the data, as Carrie said, the big trend is a continued decline in the use of the foreign intelligence surveillance act

to monitor foreign nationals into some extent American who are acting at agents of a foreign power in the United States. And I think we'll probably wanna delve into that in more detail, but it raises all kinds of questions

And the potential effects of having the intelligence community just do so much less of this. - All right, so let's start with the first big number, which is the rather large number of 702 queries. And this has been a long term fight

between the Congress, particularly Senator Wyden and the administration or the executive branch since it crosses administrations to get this number of Americans affected by 702 querying declassified.

And the administration has taken the view for a long time that it can't actually produce that number. Now it has finally figured out a methodology for producing something that approximates it although with a bunch of caveats.

I guess my question is, we don't have a baseline of what a big number here are a small number looks like.

“So Adam, well, I forgot whether I think it was 2.8 million”

or something queries that involved US persons or of US person data, is that a big number or a small number? - That's a very loaded question. It certainly seems like a big number, but I think in context, it's not actually particularly surprising.

It may help to zoom out and explain what 702 is, what 702 queries are, and so forth, before we get into it. 702 is simply a law that allows the government to conduct surveillance of a foreign person

who oversees, but using facilities that are here in the United States, whether it's over the wires, surveillance, or going to a provider and getting stored data. And this, of course, is benefited by the fact that the US is pretty central in the structure

of the global internet, both just the internet backbone,

tend to run through here and many of the most important

companies are based here.

“So this power exploits our home field advantage”

of the internet as a way of collecting information on foreign people who are overseas. Why is their controversy about searching this data for American? Well, because it's collected under a more permissive standard,

because the targets are overseas, you don't have to go to the FISA court and get an order for each specific instance of targeting that happens. And so many advocates argue that government should not

be able to then go to this database that was collected on foreign people under a more permissive standard and search for information about Americans. At present, the FBI and other agencies can do that. The FBI is allowed to search this database

for information about an American. If it's searching for evidence of a crime, which, of course, the FBI is quite often doing or for an intelligence information, which is also part of the FBI's mission.

Now, the FBI primarily deals with Americans, the FBI operates in the United States most of the time. And so, when FBI agents are routinely searching FBI holdings for information about the people they're encountering while they're conducting investigations,

they are almost always going to be encountering Americans.

And so, virtually every one of those fairly routine database checks you might call them, that is the kind of thing that investigators do as a matter of course, when the encounter people is going to affect a US person.

“And so, that's why this number is so high.”

Now, there was a one-off distortion in the numbers this year where according to the Office of the Director of National Intelligence, searches related to one Russia-related cyber incident, where it was responsible for 1.9 million of these queries. And so, if you take that out and take them

at their word, which I think we reasonably can here, then the number is somewhere in the one million in change range. It just still seems like a very large number, but in the context of all the FBI investigations going on and all the individuals of the FBI's encountering

and running database checks on, it doesn't seem like an absurd number. I think it's roughly what those of us who are following this would have expected. - Carrey, what do you think?

Is 2.8 million or adjusted for one Russian cyber incident

that we'll talk about in a minute, about a million, roughly what you were expecting that number to look like, or is it higher or lower? - Well, right, so just to focus on the numbers for seconds. So the FBI U.S. person queries of this section 702 data.

So this is searches of the FBI is doing into the queries of the data that has already been collected, under court-approved procedures. In 2019 to 2020, it was 1.3 million. And then 2020 to 2021, it was 3.3 million.

So the number did go substantially up and as Adam described, it was because of a particular case. And what the Office of the Director of National Intelligence

relating to the compromise of U.S. critical infrastructure

by foreign cyber actors. So basically, this is a cyber investigation. And so these queries had to do with that. And what the FBI is doing is these are not individual. One at a time queries, they conduct

what the intelligence community describes as batch queries. So I think we have to think about this in terms of the automation that is involved in the process. And because there is this automation that is involved

“and these, I think, or there is a portion of these queries”

that clearly is related to cyber investigations. And so I think that to me indicates that there is a difference for how the FBI is implementing these queries that is different than just like querying for individual people.

So I think if we think about it in the context of global cyber intrusion investigations and the FBI's responsibility to try to protect

in this case critical infrastructure

or presumably there may be some other cyber related investigations that involve these batch queries than that would lend towards a higher number. That being said, you mentioned at the beginning that Senator Widen in particular had been requesting

this information for a very long time. The intelligence community across administrations, political administrations had said it really is not possible to come up with these accurate numbers. My assessment at the time when this request was made

was of some concern that trying to go in and try to identify the numbers of US persons could potentially have us be looking at US person information in a way that maybe the intelligence community would not be doing.

Otherwise, I'm not sure how informative this information actually is. I mean, I guess that's my bottom line. - Yeah, so it's my bottom line too. And ask more questions with this big number or a small number.

In order to have a sense of how informative it is,

“you have to have a sense of what you expect”

to compare it to. And I don't, I find the idea that you could have a single cyber

incident that produces 1.3 million queries,

so mind-boggling, and I'm sure that's not 1.3 million people. But I don't know what the subjects are here. I don't know, is this every computer you look at? Is it every? And so I end up thinking, well, 2.8 million, it's a lot.

But I'm not sure, is it larger than it should be? Is it smaller than it should be? Is it about what it should be? And the fact that some enormous percentage of it is the result of one incident just makes me think this isn't

really probative of anything. - Well, and so as I think about it have thought about intelligence community transparency over time, one of the important characteristics that I think should be a factor in weather information

is released is how meaningful that information is. And in this case, I am just not convinced, even though I think the intelligence community has gone to great lengths to try to provide some context to the extent they can in an unclassified format,

I'm not yet convinced that the meaningfulness to even a fairly knowledgeable audience is that high. - What do you think Adam? Is this a situation where Senator Wyden effectively bullied the administration over time

into the release of information that is essentially uninterpretable by a reasonable, even an educated, reasonable, outside person, and the result is a data release that actually doesn't give us much to measure anything by. - Well, let's remember there was a FISA court decision

that required the FBI to keep records of weather queries or a pertain to U.S. persons or not and tell them anything government opposed in the FISA court and the FISA court said, nope, you can do it.

And now they've come up with a way to do it. So this isn't something that purely came from the Will of Congress or particular members of Congress or the administration.

“We also have to remember that this process”

is a learning process for the government, too. And they try a particular method of counting something

there at ways either of explaining that

or adjusting the counting methodology. And to their credit, the DNI's office has over time explained very clearly when they're changing methodologies ways in which the methodology might be confusing. In general, they're over-inclusive.

They tend to over count because there's some scar tissue of being accused of undercounting things or mistating things sometimes unfairly. And so there's a bias towards overcounting which is not necessarily a good thing either.

What we want are accurate numbers, not excessively cautious numbers that give a misimpression one way or another. But it's a bit of a thankless task. And that's why I'm glad that we did kind of start this session

by saying thank you. They get criticized either way, report too high and it looks like you're doing too much, report too low and people accuse you of hiding things. But I think this number is one area

where we'll get refined over time. The explanation for what's being counted accounting for distortion so that we know what it's actually talking about. - So a question from the audience, when we have, as you've just told us

that we did have a single case that drives

1.9 million queries, is there any significant benefit

to comparing year over year overall numbers? - I think it's great that they said that that they came out and said that and declassify that fact, which was obviously classified to begin with, so that we know that there actually

was not a massive increase from one year to the next.

“Remember that this is the first, despite the fact”

that two years of information are provided here, this is the first year this number is in public. And so this is, you might call this kind of a beta test for this number and presumably we'll see some refined movements in the future.

- Carrie thought? - I think that's fair. I think particularly Adams context in terms of the Vice of Port of Canyon that's relevant

as well as the fact that this is the first time

this particular number is out. They may change it over time. They may report it differently over time. They may alter these systems themselves and the mechanisms that are which queries are done

and are not static. So we actually want them to adapt how they do their processes over time. So I think it's fair to say that as long as the context continues from year to year, then you can make,

we will over time be able to make some comparisons.

“So I think year to year is sort of the only baseline”

with which we have to look at the information. - All right, so let's talk about the other news where the number in here, which is that Title I fizes continued to decline. Now briefing for those who don't know on Title I fiza,

this is not the programmatic component. This is the fiza as individual search warrants, component of the statute where the government goes to the court and says, "Hey, we have probable cause to think that Ben Widis is an agent of a foreign power.

Here's the evidence of that." And the judge does or does not authorize electronic surveillance or in some very rare cases, physical surveillance as a result of that. These numbers have been essentially,

there are quite a fraction of what they were only a few years ago, and there are a number of different theories as to why these numbers continue to fall. Adam, get us started, what do you think

“the best explanation is for their decline over time?”

And they're particularly, their continued decline, even after the most locked-down period of COVID? - Okay, well, I will answer that question. I just think it's worth doing me out of providing a bit of contact.

If you only look at this year's report, you don't see the 2018 numbers, which I think provide the starkest sign of the fall off. In 2018, there were 1,833 fiza orders to conduct electronic surveillance,

like a wiretap on an agents of a foreign power in the United States. And last year, that was down to 376 total targets. And so it's a precipitous decline, something on the order of 75% or more.

And so what explains this, and perhaps a more important question is, what should we make of it? Starting with what explains it, obviously COVID is a big factor.

And the reason is that a lot of the people who are targeted under fiza, not all, some are U.S. citizens, but many of our lawful permanent residents,

who travel to the United States

with a nefarious purpose in mind. And of course, COVID dramatically cut the volume of people traveling to the United States. And so it was understandable that in 2020, there'd be a really big drop in there was.

What Kerry said before, when I agree with, is that we would have expected that in 2021 with travel ramping up with the world, normalizing again, the numbers would have gone back off to something remotely approaching what we saw before.

And they didn't, instead, they continued to decline. And I think that's quite surprising. There are various possible explanations with that, some of which the Office of the Director of National Intelligence has talked out there

in background calls to people in the know and to people in the media.

One of those is changes in how the targets communicate.

And that's a bit cryptic, but reading between the lines, we can guess that it may be related to the increase use of encrypted communications that the government has trouble getting the content of, which would obviously make a wire to have much less effective.

And one that they don't really mention,

“but that I think is probably somewhere behind some of this,”

is the aftermath of some of the five of the scandals that we've talked about on path paths and paths to law fair lives. Related to Carter Page, that finds the application and the Inspector General subsequent digging into the five of the process and mistakes

that the government has made in some of these situations. There were many reforms introduced in the wake of that. I don't think the intent of those reforms was to reduce the use of Pfizer, but it may just be that people in the process

are gun shy about getting Pfizer and that that has just reduced the bureaucratic will to pursue these things. - What do you think when you shoot these numbers, Kerry? - Okay, I've got six possible explanations.

I'm gonna do a top down, okay. So one is I think continued pandemic behavior, which Adam covered, that was clearly a big reason, as far as the 2020 numbers. And my additional analysis of that

is that physical search in particular would have been affected by pandemic behavior, in other words, people staying home, including targets. So not just the travel that individuals here in the United States,

“I think that might have affected the physical search number.”

So pandemic behavior is one.

A second is that when the pandemic behavior

changed the number of targets, then the Justice Department and the FBI would have had some category of targets that prior to the pandemic were under coverage, and then they had to decide,

do we go back to the court for these targets? And so perhaps, I'm speculating, there was more sort of internal scrutiny towards going back to targets that have been previously been covered and determinations,

whether or not to, so sort of an internal scrub of prior targets. And so that I would put in the category of like, good government, you know, they're doing, they did, maybe they did additional due diligence

on targets that previously had been on renewals before they went back. Number three and four,

“I think that says some issues that Adam described”

in terms of fallout from investigations and revelations, which would be either one greater scrutiny of applications by the court, or and greater scrutiny of applications by the Department of Justice

before taking them to the court. And so all of those investigations and additional scrutiny on the title one or their probable cause-based applications could have led to greater scrutiny

by either of those institutions. A fifth is, I think there's an open question as to whether all of the transparency and information that we've released has perhaps affected target behavior.

I'm not sure that there's a way to answer that question, but I think it's something that's out there. And the sixth, which I suspect may very well be behind the significant decline in targets is for years and years and years,

is the encryption issue that Adam described, which is for years and years and years, the intelligence community, and including the FBI, warned that they used to describe it in the terms of quote unquote going dark,

that the use of encryption would change target behavior and therefore techniques that were used to collect information in the past are no longer valuable. And you can't keep going to back to the court to request authority if it's not revealing anything over time

and the use of encrypted apps is so prevalent amongst average, you know, everyday citizens, towards all sorts of individuals who understand how the internet works,

if in fact, things have gone dark,

“at least with respect to certain targets.”

And that is a substantial national security issue because if some substantial category of targets that used to be covered now are no longer covered, then there is some category of threats to American security that are no longer being observed

and investigated and analyzed in the way that we wouldn't expect the FBI and the intelligence community to do so. - That's why Titirian Finominus Zurück,

comes from the second round of the round.

On the 22nd June, there are the three cities of the Dragon by HBO Max. Here you find the whole world of Western Russia, a game of friends, a night of the same kingdom and of course, the House of the Dragons.

Dragons against dragons, against Targaryens against Targaryens, against Triegen, Farad and E. Pische Schlachten. All that awaited a new town. So, streamed up the 22nd June,

the newest Duffel House of the Dragons and Alessirian from Game of Thrones. Nua of HBO Max. - So, can we all agree that the causes that all of those causes are to some degree

contributing to this, right, that this is a almost certainly a multi-caused fact

and that you're seeing different components of it.

The question is, how much each of these factors is contributing to it? Is that fair, Adam, or is it likely to be a situation where this is one or two of them are the dominant things going on?

- I think we actually have no idea which is pretty worrying, frankly. It's not as if geopolitical tensions have cooled, so we don't need to worry about what our foreign adversaries are doing here.

We are in quasi-proxy war with Russia at the moment. And that's one of our two primary foreign intelligence threats. And the situation with China is more difficult than it's ever been and is getting more difficult by the day.

And they are a number one geopolitical threat. They're very aggressive foreign intelligence collectors in the United States. We need to be covering down on them. I know the government fully realizes this

and the question for those of us on the outside is so they have the tools that they need to do that, or at least that's one of the questions. And if they're not using Title I's traditional FISA's for various reasons, what are they using?

Well, we can see that 702 is going up, up, up, up and 702 is for targets overseas. That may be all well and good, but there are people in the United States that you can't use Section 702 on.

So what are we using? They're not using criminal authorities for these people in most cases because those are not secure. And you can't handle classified information

through that process in most cases. They're certainly very inconvenient and risky to do so. If we're not using FISA, what are we using?

“If the content is encrypted, are we using metadata?”

You might ask. Well, some of the other authorities that you might be able to use to get those things are going down also. 10 register orders under FISA are going down, down, down.

The trend is pretty steep. If you go back to 2013 or some looking at here, you had around 2014, the high point, 516 targets. Last year, there were six targets for pen registers under FISA.

That's a pretty steep drop. Business records, the FISA business records provision

where you could go to a third party carrier

and get records with a lesser showing to the court. That's dropped dramatically, also, since that expires as you would expect. And so what tools are they using to cover down on these people? It's not clear.

And we want to make sure that we have the ability to cover four nationals who are coming to the United States or in the United States and doing things that are harmful to our national security. There's an entirely separate question,

which is, are there enough protections in place after the Carter Page situation? We've seen public reports about all of the reforms that have been made. I've written some about that, including when I was in government.

And I think that's also the good,

“but we also need to know, are those things working?”

And zooming out, there's a bigger picture question, which combines both of these things. What's the threat and do we have tools that are fit for the threat? It kind of seems like we don't. And that's a little worrying.

And I think this is something that that Congress should be thinking about as it looks for the next big five towards the next big five-year legislation milestone, which is coming up in 2023. So the last week before, when this data came out,

I asked Matt Olsen, who was giving a talk at the Eulach Foundation about whether the combination

and the adjustments to the woods procedures,

“and the additional procedures that you alluded to,”

may have created an atmosphere in which it kind of be crazy as an FBI agent in counterintelligence to go to a Pfizer. It's incredibly bureaucratically complicated at this point. And you may be halted in front of Congress to answer for, you know, and have a special counsel.

And a IG investigation, I don't know what you do about that, really, because there were really significant errors in the Carter Page Pfizer situation and you do want good quality control. But you also don't want an environment in which people

will do anything to avoid using the tool. I'm curious, Carrie, if you think we are at the optimization point using the tool, but using it well and accurately, or whether we may have kind of backed into a situation where we're discouraging the use of our counterintelligence tools

because we're so careful to prevent errors. - So I'm sure that it had some degree of cultural effect within the FBI and the Justice Department,

but truly, there has never been a time

that Justice Department lawyers and FBI agents who work on these cases did not run the risk that any particular case they could be working on would be the one, as we used to say, that would end you up in front of the Green South table.

So in other words, I can think back a very long time ago, long before the Carter Page Pfizer's when there were congressional investigations over particular Pfizer applications in the counterintelligence space.

And that is simply the way that it was the way that it has been and as long as this process is around the way that it always will be. There is just high degrees of sensitivity

to these cases and there always could be one that people work on

at the FBI or the Justice Department that ends up the subject of certainly congressional investigation what was different about the Carter Page. Pfizer's was a that it was an individual affiliated with a political campaign and two

that the applications were declassified and released publicly for the first time. So I'm a little bit not persuaded that there is a fundamental longstanding chilling effect as a result of that.

And as I said, I'm sure there was some, there will be a cultural effect. I'm sure there has been, but I don't think that it is the result. I don't think that the result of that is this huge decrease in the number of targets.

“I think that enormous decreases due to other things.”

Adam? - Yeah, I certainly agree with what Carrie said. I want to add some thoughts on what we can do about this. I don't think that this is just an insoluble problem that we have to accept.

I think it's derived from the way the statute is structured.

And the problem is that with very few exceptions,

all of these cases are lumped together in one big pool that are basically subject to the same process. U.S. that is in other U.S. persons for a national, all basically go through the same court process. There are differences, to some extent, in the time limit,

in the exact standard in the law, whether the conduct has to be knowing or not. But by and large, they're all lumped together. And that doesn't have to be the case. We have different categories of people in this pool

of potential agents of a foreign power who have different interests that we should care about differently. So on the one hand, we have U.S. citizens, we have lawful permanent residents who have significant rights and protections under the Fourth Amendment.

Some of those are people who are affiliated with the campaign, or who are religious leaders or journalists who are in very sensitive categories, the type of people who might tend to be targeted for their opinion, at least looking at past experience,

going back to J. Edgar Hoover and so forth. In those cases, we do want there to be a lot of speed bumps. We don't want it to be easy to go and get a fire award to fly in a presidential campaign.

“You should only do that in the most exceptional circumstances,”

if ever, because of the consequences for our political system,

as we've seen with this Carter page debacle. So in those cases, okay, we do want the numbers to be small. We want you to have to go to school. We want there to be some bureaucratic system-centred. But there's a whole other category of cases

where you have Russian and Chinese national flying into the U.S. for a month, for two weeks, to do God knows what. And those people have pretty minimal rights and interest that we should be concerned about.

So the Supreme Court has never actually held

“that you need to warrant a wiretap those people.”

And so it's quite conceivable that we would actually want to lower the statutory threshold in some cases to conduct surveillance in those cases to make sure that we don't have excessive speed bumps preventing the FBI from covering down on those people while they're here. And so I think there's a lot of work that Congress can potentially do

looking at this statute and thinking whether the way it's structured, which after all comes from 1978, makes sense given the very significant changes in travel, in technology, and just the accumulated historical experience between now and then.

Let's go to the audience, voice of God. For the most part, once the IC decides to disclose something in its budget or process, or is prodded to do so, an internal OD&I processor pattern

is established to keep doing so in the future.

Thus, for example, we get top-line budget numbers each year now from the DNI when we didn't for many decades. Does the momentum of this Pfizer report on top of other such

“instances, vote well for increased transparency from the IC?”

I agree with the premise of the question, once you put something out there, it's hard to take it back. Especially once it's shown that it doesn't create a catastrophic situation for intelligence collection or national security. The top-line budget is a great example of that.

That was a 9/11 commission recommendation that was later put into law that the number of billions that we spend on the national intelligence program each year should be public. And it's been public, I think, since something like 2007, 2008, no one is suggesting that that has caused the collapse of U.S. intelligence power.

If anything, the experience in Ukraine recently shows that the U.S. intelligence community is humming along quite nicely, thank you very much. So I think some of these things are just a win-win. They give the public useful information. There's no significant downside for national security.

And if anything, it builds trust in the intelligence community by putting its cards on the table. Can I do you have thoughts on this?

“Is this going to create greater momentum to do more of this sort of thing in the future?”

Well, when it comes to Pfizer statistics, I'm not quite sure what more is left. I mean, there is a lot of information in this report. You know, the one number that really sticks out to me is the transparency now on number of targets.

So it used to be for a long time that these reports talked about things in terms of number of orders. And now, because of the legislation and the increased transparency, we have a number of targets. And I do wonder, again, I don't, as I said earlier,

I don't know that there's a way to measure this. But I do wonder whether number of targets in particular is the kind of thing that is revealing to adversaries. And may have some detrimental effects. I mean, if you're for an adversary and for an intelligence service

and you see that the United States currently has 376 targets for a probable cause based applications, you can start deducing quite a bit of information from that. Good day, you can say, hey, I am certainly one of the 376

most important foreign agents in the United States.

And if they only have 376, and I'm not on it, that's unsalted. Ben, Ben, one of your fans is going to clip that statement. I don't know how it gets answered. Whether or not there is any marginal negative impact

from some of the details that are being released. But I do agree with Adam that once it's out there, it is difficult to go backwards in terms of transparency. I also think joking aside, I mean, I do think you can learn a lot from the number of targets.

You know, among other things, just think about the Russian embassy for a minute. They have a staff that has a certain size. And you can measure that against the Chinese embassy, has a staff that's of the certain size.

You can do a lot by just saying, OK, we know there's a certain amount of coverage of this country, of this country. They really only have X number of slots for us. And that kind of affect your assumptions

about how many of your people do and don't have coverage, right?

it does write questions, which I think goes to one of the viewer questions,

which is the underlying way that things are counted matters greatly. And so then there is some risk with these numbers being released, which, again, is as a result of legislation. And so they have to be released.

“But I think there is some risk that the way in which things are counted,”

then depending on how they are explained, can then be sort of further subject for criticism of the intelligence community if they are not able to articulate in very precise ways how they are coming up with certain numbers. All right, let's go to the next question, voice of God.

Even how DOJ and NSA lawyers have interpreted statutory

phyzo language in the past, like facility or relevance,

is there a possibility that the ODNI uses these transparency reports at least in part as a way to mislead and confuse US foreign adversaries and other foreign entities for the purpose of improving the quality of FII collection? Well, I would just observe as a preliminary matter

that they would be in violation of statute if they did that. Adam, how you've been the head of the privacy and civil liberties oversight board, how confident are you in the accuracy of these numbers or are you concerned that they can themselves be a vehicle for mis informing or dis informing public audiences,

including adversarial audiences?

“Yeah, I think anyone who, when I should say I know a lot of the people involved,”

and producing these things in my belief is that they've always been

acting in good faith and honorably and that they actually do care about transparency and privacy. I'll be, of course, from the institutional perspective that they're coming from. What I would say is in Washington, people knowingly lying about things

is pretty rare because they're very, very significant downsides, and that's the kind of thing that's possible to get caught in. As we saw with the FBI lawyer who edited the email, he could be prosecuted for a crime, whereas other people who, for whatever questionable reason,

pushed for the Carter page by the coverage and other things in that investigation that later proved to be unwise, you know, couldn't be busted for mere negligence. That tends to be the way that things go. And so people knowingly lying or having these nefarious

intentional conspiracies tends to be pretty rare. I think the thing that one wants to check on is to make sure that the numbers are actually, the true numbers are actually giving you useful information rather than rather than obscuring more than neighborhood meal.

“And that's why I think it's helpful that the ODE and I”

come doubt and provide some of this background information to explicate some of these numbers that might just be confusing on their face. And of course, there are also opportunities which I used to take advantage of when I was in government, but people in the classified sphere on the hill

at the P-Club, my former agency still had to get on a classified line and ask hard questions about these numbers breaking down all of the things that we're not able to discuss or answer here. What does this actually mean? Is this because of encryption and so forth?

I want to ask an encryption question on the theory that that is at least part of the picture, although I doubt the dominant element of it, assuming that in an end-to-end encryption environment, it doesn't change the FBI's legal authorities at all. It merely changes the modality by which you would capture signal, right?

You would have to capture it earlier in the process. I get getting into somebody's phone, having it transmit, for example, screenshots of discussions on signal rather than the actual signal signal itself. I would think this would be a very if these declines in numbers

are a function of end-to-end encryption. I would think this would be a very strong argument for the sort of Susan land-out thesis that the FBI needs to be working in a very deep way on lawful hacking. And I'm curious, Carrie, whether there's anything in the data that deals with the modality by which material is being acquired rather than, I mean, the authorities are the same,

right? So a phyzo warrant to go put an alligator clip on a landline phone is the same authority as the phyzo authority to go into the phone, the smartphone itself, and clone it, right?

Is that right?

“I think that's fair. From this particular report,”

it doesn't get into the how things are done.

However, although I agree with you in terms of the assessment of the authorities are what they are, the court is able to request information about anything that it wants that assistance evaluation of a case. So the court is in a position to be able to ask the government how things are done. And so that I think that piece of things, the how they're done,

takes place more in a dialogue amongst the branches than it does in the public transparency report. But I am, I am a little curious, Ben, what is the basis for your assessment that you don't think the encryption issue is a significant reason for the decline in numbers. You think it's more just pandemic behavior? So I didn't say a significant reason. I think it may be a significant component.

I sort of doubted that it's the dominant component. Now, I actually believe that the lion's share of the effect is probably a combination of the post-carder page stuff for better or for worse. I think people are much more cautious. And the just bureaucratization of the additional layers has, I just think created a desire not to use the process unless it's absolutely necessary. Combined with COVID, we're a lot of people are staying home

a lot of the time, combined with other aggravating factors of which encryption is certainly one. The other thing is that I'm not at all sure that encryption would inhibit the seeking of the war at, because it's often only after you've sought the war and that you're going to realize what the modality of communications are and that they're impaired by encryption. So my guess is it's playing a role, but it's less of a role than other atmospheric conditions,

but I have no empirical basis for that. It's just an instinct. What do you think Adam? Well, when you're talking about people who are agents of foreign powers, they tend to get operational security advice from the same source. And so it is quite plausible that they would also switch at the same time to something that's secure against use dropping buyer and diligent services. I also don't think that at that end-point access, what you're talking

about ban hacking the phone, as opposed to going to the midpoint and intercepting the text,

is really a viable option here for a few reasons. First of all, it's just a lot more labor-intensive.

“You have to know what version of the device the person is using and get them to click or view”

some other kind of bespoke exploit. It's very labor-intensive. It's not something you can rinse repeat and do over and over again, like wiretapping at the phone company headquarters. Another reason is that the types of tools that you're using to get into these phones are intensely rare and difficult to create and rely on software vulnerabilities that once they're discovered are burned or potentially taken by the adversary and used for their own purposes.

And so if you're talking about hacking the phone of someone who's, you know, hypothetically working at the Russian embassy or you think of the Russian intelligence officer, if that person's phones are attacking funny, they're not just going to throw it in the trash. They're taking it back to their IT guy who's going to look and see what kind of code is running on the phone and can learn all kinds of things about what your capabilities are from that.

So I think there are a lot of potential reasons why that's not a great substitute for midpoint, ease dropping of the type that it was typically conducted under Pfizer and in our criminal system. We are going to leave it there. Thank you to Adam Klein, Antichary Cordero for joining us today and thanks to you all for joining and listening. The law fair podcast is produced in cooperation with the Brookings Institution.

“Our audio engineer this episode was Cara Schellen. You should do your part to promote the”

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