Ron Wyden Presses National Intelligence Official On Public Knowledge Of Data Collection 'Boundaries'

3 months ago

During a Senate Intelligence Committee hearing last week, Sen Ron Wyden (D-OR) spoke about public knowledge of laws surrounding intelligence gathering.

Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:

https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript

Stay Connected
Forbes on Facebook: http://fb.com/forbes
Forbes Video on Twitter: http://www.twitter.com/forbes
Forbes Video on Instagram: http://instagram.com/forbes
More From Forbes: http://forbes.com

Transcript

00:00I enjoyed our conversation a couple of days ago, it was very helpful, and I want to pick up, and I think we can do it quickly,

00:06on some of the questions I asked you with respect to gaps in FISA protection for law-abiding Americans. That's my concern.

00:16So current FISA law prohibits the intelligence community from collecting GPS information on Americans overseas without a warrant.

00:26Is there any reason why that protection should not be extended to Americans in the United States?

00:32No, Senator, as we talked about when we spoke, if, for example, under 704 of FISA, if that authority requires a warrant under 704

00:43to obtain geolocation data for an American abroad, then if the government is also trying to compel a company to produce

00:49geolocation information in the United States, then that should also require a warrant, in my view.

00:54So following up on that, current FISA law would require a warrant to search an American's apartment overseas,

01:02but if that American visits the United States, it's not clear that those provisions apply.

01:07Is there any reason why a warrant shouldn't be required to search that American's apartment overseas,

01:14regardless of where that American is at that moment?

01:18Yes, I agree with that as well. That is a gap, I think, in the law. We sometimes refer to that as the vacation home gap.

01:26But yes, I don't have any objection in principle to requiring a warrant to search an American's home overseas for foreign intelligence purposes.

01:35We're making good progress. Let me now go to this question of secret law.

01:40My colleagues here have heard me describe this on a number of occasions,

01:44but I feel very strongly that sources and methods have got to be secret,

01:51and that has got to be a sacrosanct principle in the intelligence community.

01:55I think the laws have got to be public, and that means basically you ought to be able to sit in a coffee shop somewhere

02:02and read a public law, because that's what our system depends on, is people having knowledge of public laws.

02:10As you know, we had something that we Jewish people call a kerfuffle with respect to some of the definitions in 702,

02:19because on its face, it could allow the government to force just about any American with access to a Wi-Fi or a cable

02:27to participate in warrantless surveillance. That, to me, is what it said on its face.

02:33Now, to me, this isn't how legislation should be written, and it adds to distrust.

02:39So my question here is, would you agree that the public has a significant interest in knowing the boundaries,

02:46and I choose that word specifically, of these authorities?

02:51Yes, so I couldn't agree with you more. I think in a democracy, it's important that our laws be transparent and public to the maximum extent possible.

02:59In the intelligence area, as you know, that can pose challenges, because the activities are secret,

03:04and so have a legal basis for those activities. We want that to be public to the maximum extent that we can,

03:09but there can be challenges in doing so in order to protect the activities that we need to keep secret.

03:15So I think with respect to the specific issue that you're referring to, which is the revision in the most recent reform

03:20to the definition of electronic communications service provider, I think we've tried to do,

03:25working with the committee and working with the chairman, is to make as much information as possible public

03:32about what that new definition is intended to mean. It's a narrow change in the law to really address a change

03:38in how the communications architecture has evolved since ECPA was adopted in the 90s,

03:44and it was in response to a very specific FISA court decision that said that a particular type of company was beyond the jurisdiction of the law.

03:53And so we've done as much as possible, including working with the chairman, to make clear that it was intended to be a very narrow technical fix,

04:00and my understanding is that in the draft Intel Authorization Act, we're going to go another step farther to try to link that definition to that court decision

04:08in a way that will try to provide as much as we can, possibly while protecting the source and methods, as you said, Senator, that we need to protect.

04:14Let me get to my last question, because I work closely with the chairman and the vice chairman,

04:20and I think we made some progress on the definition, but this is still, as you and I talked, this is a balancing act.

04:30So here's my question. Under the executive order that controls classification, the DNI is supposed to weigh whatever sensitivities might exist against the public interest in the information.

04:40Now, if you're confirmed, you're going to be advising the DNI, and I would like to know whether you believe that when it comes to public law,

04:50those specific words, the public has got a strong interest in knowing what it means.

04:55I absolutely think the public has a strong interest. I know the DNI also believes in transparency, so I certainly would advise on that,

05:02but it can be challenging sometimes, given the interest in protecting our equities.

05:07There's no question it's going to be challenging. That's why I thought you were a smart guy at the beginning, and I appreciated the questions.

05:13I just want to have somebody in that room who's going to understand the difference, and I think you do,

05:19and this is going to be an ongoing kind of process between sources and methods, got to be secret, and public law,

05:27so people can sit in a coffee shop and figure out what in the world is going on back here.

05:32I get it. I understand.

05:33Thank you, Mr. Chairman.

05:34Thank you, Senator Wyden. Senator Risch has agreed to pass for the time and move to Senator Cornyn.

05:39Congratulations, Mr. Wigman, on your nomination.

Ron Wyden Presses National Intelligence Official On Public Knowledge Of Data Collection 'Boundaries'

Category

Transcript

Recommended