001746	01bankston_wmp_a_16.wma
000000	ERIC GOLDMAN: Thank you for coming today.
000001	My name is Eric Goldman.
000002	I'm the academic director of the High Tech Law Institute.
000004	I'm also a member of the faculty, and my area of specialization is Internet law.
000011	I've been teaching an Internet law class for a dozen years including I taught here a class from 1997 to 2002 as an adjunct.
000020	I spend a lot of time thinking about online marketing issues including issues related to search engines, spam and topics like adware and spyware.
000028	If you're interested in working on topics like those, I'd be happy to talk to you more.
000032	But I don't want to detract from the focus of today's event because we have some terrific speakers here to talk to us about some essential issues of the digital age.
000041	The topic today is Social Justice and Cyber-Liberties.
000046	And to guide us through this topic we have two phenomenal speakers.
000050	We have Ann Brick who is a staff attorney at the ACLU of Northern California where she has worked for a while on technology related privacy and free speech issues.
000104	We also have joining us Kevin Bankston from the Electronic Frontier Foundation.
000109	For those of you who aren't as familiar with EFF as you may be with the ACLU, I would categorize the EFF as one of the other leading groups in the Digital Civil Liberties area.
000120	And Kevin is a staff attorney there where he works on similar issues related to free speech and privacy law.
000129	And so I'm delighted to introduce them.
000132	I believe I'm going to be turning over the podium to Kevin to say some remarks.
000141	KEVIN BANKSTON: First off thanks Professor Goldman and Professor WIldman for having us here.
000144	We very much appreciate it.
000146	The title is about Cyber-Liberties.
000148	We're actually going to be talking a bit narrowly today about the National Security Agency's Domestic Spying Program and the work that Ann and I and other organizations
000158	and plaintiff's counsel are doing to stop it and get the people who are spied on some restitution for that.
000205	Before I talk about this particular program, I'm going to give you a little bit of history about wiretapping in the US and how the law has treated it.
000216	Before 1967 the application of the Fourth Amendment was very property oriented.
000223	You couldn't have something seized unless you had a property interest.
000228	A search of something you had no property interest was not a search for you, and the Supreme Court had held back, in the '20s
000231  that wiretapping in particular didn't implicate the Fourth Amendment.
000240	It took them a little under 50 years to change their mind.
000245	In 1967 there were two key cases by the Supreme Court that sort of redefined the way the Fourth Amendment was applied particularly to your conversations
000255	those cases being Berger v New York and Katz versus United States.
000301	And the ultimate conclusion of those cases taken together was that your property interest doesn't matter.
000307	The Fourth Amendment protects people not property and more to the point it protects your expectation of privacy.
000315	And since you can have an expectation of privacy in your phone calls, the interception of those phone calls can be and is a search or seizure that requires a warrant.
000326	In fact the court found that this kind of eavesdropping or wiretapping is even more invasive than a traditional physical search because it's ongoing and it's secret
000338	and therefore it can capture an enormous amount of non-relevant material.
000343	So following these decisions Congress in 1968 passed something called the Wiretap Act often referred to as Title III because it was Title III of the big Omnibus Crime Bill that was passed in that year.
000356	That sort of codified the issuance of these super warrants where it's a regular probable cause warrant but there are other requirements.
000402	For example you have to have exhausted all other investigative methods before you can wiretap.
000406	You can only wiretap an investigation of certain serious crimes again because it is such a serious invasion of privacy.
000415	The problem was there was a huge carve-out in this statute for surveillance that was authorized by the President for national security reasons.
000422	Congress would come to regret that carve-out a few years later.
000427	First in 1972 the Supreme Court decided a case about CIA spying on domestic groups and held that the Fourth Amendment applied to this kind of national security spying as well.
000440	Soon thereafter '75, '76 there was a committee in Congress, the Church Committee which post-Watergate investigated the activities of Nixon's plumbers
000452	the men who were charged with plugging the leaks in his administration, as well as surveillance done by the CIA and NSA
000458	and found that there was in fact widespread unregulated, unwarranted wiretapping going on of American citizens.
000506	This was considered very problematic rightly so.
000508	And so in 1978 Congress took away that carve-out from the Wiretap Act and instead created a new statute that would fully regulate even national security oriented foreign intelligence surveillance
000521	and this is called FISA, the Foreign Intelligence Surveillance Act.
000524	And the key thing to know about that is other than creating a particular secret process for foreign intelligence surveillance
000532	it added to the law the line that this law FISA and Title III together are the exclusive means by which the government can engage in electronic surveillance.
000544	These are the only procedures under which the government can legally wiretap someone.
000550	And that framework of laws, although updated in a lot of ways, in a lot of ways that I object to, by the Patriot Act and other post 9/11 laws, has remained essentially intact
000602	which is why it was so surprising when on December 16 the New York Times reported that the government had been for years, on the President's authority
000612	wiretapping the communications of thousands of people in the United States.
000618	The President the next day came out and clarified yes there is indeed this warrant list terrorist surveillance program, although it's better called a terrorist suspect surveillance program.
000630	But we're only wiretapping the calls and emails of people who are communicating across the borders.
000639	We're only wiretapping international communications, which is actually a meaningless distinction under the law, but anyway, and only where we have a reasonable basis
000649	not probable cause, to determine that one of the people on that call or involved in that email is affiliated with or somehow linked to Al Qaeda.
000659	What degree of separation is enough to make you link to Al Qaeda we don't know.
000704	So this news was disconcerting enough to civil libertarians in that well it looked like this was unconstitutional surveillance and done in complete contravention to statutory law and indeed a criminal law.
000720	This is a felony to wiretap without a warrant unless you fit certain narrow emergency exceptions, none of which were met here.
000729	You know the basic just being whatever happened to the rule of law, why isn't the President following the law.
000734	But it actually turned out to be even worse than the sort of narrow program that was described.
000739	As later news stories indicated, the program was actually broader than we thought
000745	in that the NSA had secretly over the past several years gained direct access to the major telecom switches around the country that carry all of your traffic
000757	and that they were receiving copies of all the communications that go across that backbone fiber optic network and then apparently filtering it down after they got it.
000809	Basically the way the law has always worked is you target someone with probable cause and then you intercept their communications.
000817	But what it appears that the NSA is doing is that they're actually intercepting, both I think under the Fourth Amendment and the statute's definition, pretty much everyone's communications.
000828	And then doing some sort of filtering on that to figure out who they want the NSA analysts to actually listen to or whose emails to read.
000835	And we think that that filtering has something to do with a social network analysis on who is talking to who and when.
000845	This theory was supported by a story that was not really noticed in December by the LA Times that said the NSA, in addition to having access to the key switches
000856	was also given unchecked access to AT&T's massive database of all of their call detail records, again records that indicate who called who and when.
000909	So there were as expected several lawsuits that came out of that first revelation.
000914	First off the National American Civil Liberties Union Office filed a lawsuit on January 17 as did the Center for Constitutional Rights representing a variety of journalists and lawyers
000927	and others whose work was inhibited by the fact that they could no longer trust the privacy of their email and their phone calls.
000933	And they sued under a variety of constitutional theories, the First Amendment, Fourth Amendment, violation of FISA via the Administrative Procedures Act and a Separation of Powers argument.
000945	These cases were only about the interception, the Terrorist Surveillance Program.
000951	My organization EFF filed its lawsuit at the end of January against AT&T rather than the government as the previous cases
001000	because well the same laws that the government is breaking, AT&T is breaking as well.
001007	And so seeking an injunction against their participation in the program and seeking damages from them for the customers who they helped spy on.
001016	We also sued them under constitutional theories arguing that they are acting as agents of the government in this case.
001023	Then there was another case that was brought by the Al Haramain Islamic Foundation in Oregon.
001029	And that case is interesting in that they actually have a transcript of their clients' wiretap that the government accidentally gave to them.
001040	So they have some interesting evidence in their case.
001043	We have some interesting evidence in our case as well.
001045	We have evidence, most of which is still under seal unfortunately so I can't talk about it much, from an AT&T whistle-blower former technician named Mark Klein.
001054	And you can go and read the redacted version of his declaration on our site.
001059	But the gist is, while working at AT&T he witnessed and indeed participated in doing technical work in a major facility of AT&T
001115	such that they were routing copies of all the communications going through that facility into a secret room, access to which was controlled by the NSA
001124	and which was stuffed to the gills with sophisticated data mining equipment.
001129	So again it appears that regardless of who NSA agents are actually listening to or whose emails they are reading
001135	the government is actually intercepting the communications of practically everyone and what they end up doing with those communications is well up to its discretion.
001147	AUDIENCE QUESTION: With the phone calls do you have evidence that they're actually listening to the content of the call that they're going beyond the number information
001153	KEVIN BANKSTON: and into the content of the call?
001159	Mark Klein's evidence is regarding the Internet network.
001206	The news stories indicate that they are intercepting phone calls.
001209	AUDIENCE COMMENT: Content?
001210	KEVIN BANKSTON: Content.
001213	Again what they are doing with that material once they receive it, we have no idea.
001217	And indeed for the purposes of our case as to whether AT&T illegally disclosed that information to them it's irrelevant.
001224	And I think it's irrelevant to the constitutional problem as well because the Fourth Amendment, you know although sort of nominally is meant to protect privacy
001231	it's really to protect your privacy against the discretion of the government.
001235	And so even if they are not looking at your communications, if they have them and could look at them I think that implicates the Fourth Amendment.
001243	And so EFF brought a class action against AT&T, Hepting v AT&T both about content interception and records disclosure.
001256	In May there was a new big story about the disclosure of records from USA Today that multiple carriers in the US had been handing over essentially all of their call detail records.
001311	We suspect similar handovers of records regarding Internet transactions.
001316	That caused another round of lawsuits from a bunch of plaintiff's class counsel as well as several ACLU affiliate offices who brought cases specifically regarding records
001325	and prompted finally some public utility commissions in a variety of states to start investigation, which prompted the government to get involved.
001335	The government of course already was involved in the cases where it is the target of the suit.
001340	But it intervened in the cases against the phone companies and intervened in a suit to stop the PUC investigations.
001348	And their main argument there is something called the State Secrets Doctrine.
001354	There is a common-law evidentiary privilege that the government has as to information which if disclosed would harm the national security.
001403	It's a fairly tough privilege.
001406	The courts are usually pretty willing to defer to the government's own ideas about what is appropriately secret or appropriately not.
001415	But rather than saying well there is this evidence that may be state secret, there is this evidence that may be a state secret, the government has taken a much stronger position
001424	which is these cases in their entirety must be dismissed before there is any kind of discovery because the heart of the case is a state secret.
001433	And there is simply no way that these cases can proceed without harming national security.
001439	And so as far as my case goes, the government moved to dismiss on this theory.
001445	AT&T moved to dismiss on a variety of immunity arguments and we had our hearing and we won.
001453	The motion to dismiss was not granted.
001456	The court found that since the government had admitted to and discussed the contours of the wiretapping program, it was not a state secret.
001506	However, the court did find that since the government had not admitted to these records disclosures, this record portion of the program that still was a state secret
001514	but thankfully he didn't dismiss the case, those claims.
001517	He said since there's a possibility that more information will come out about those such that they're not a state secret, I'm going to let those claims stand.
001525	So as far as our case, right now we are waiting, waiting, waiting, waiting.
001529	We've been waiting a number of months now for the Ninth Circuit to accept the government's appeal and hear the issue and then it'll probably go to the Supreme Court
001539	and then years of fighting and then maybe the Supreme Court again and then in maybe in ten years we might win.
001547	There have been several other cases as well where there have been decisions.
001550	There was a decision in one of the AT&T cases.
001553	I won't talk too much about the AT&T cases because Ann will, but I'll just mention them.
001556	Terkel v AT&T, a records case in Illinois, the court dismissed the case saying the phone records program following our judge, Judge Walker, the phone records program is still a secret.
001608	I'm dismissing your case but giving you leave to amend it if you want to add the content stuff, which probably wouldn't still be a state secret.
001613	There was a decision in ACLU v NSA, the ACLU's big national case against the government.
001620	Judge Taylor in Michigan ruled on that, didn't dismiss the case based on state secrets and actually reached the merits of the narrow TSP program
001630	and found that it did violate the First and Fourth Amendment and the FISA statute and Separation of Powers and issued an injunction to stop the program.
001639	That injunction is of course stayed pending the appeal.
001643	The Sixth Circuit is not dragging its feet nearly as much as the Ninth Circuit and we'll hopefully have briefing and argument on that very soon.
001650	I think we already have the government's opening brief there.
001653	So that's moving along apace even if our case is not.
001659	In the Al Haramain case, the one with the fun little transcript issue, the court didn't deny the motion to dismiss.
001708	And CCR we're still waiting on opinion.
001710	But right now the trend is the courts are willing to allow us to litigate this.
001716	Hopefully the appeals courts won't disagree.
001721	But while we're waiting the main issue is the organization of the remainder of the cases.
001725	Everything by virtue of the multidistrict litigation process has been shuttled in front of our judge, Judge Walker in the northern district.
001733	And so Ann is going to talk a bit about that multidistrict litigation process and the course for the other cases and talk a bit about the ACLU's cases in particular.