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The National Security Agency at the Crossroads: Audio of Sessions

Benjamin Wittes, Robert Chesney
Thursday, April 10, 2014, 10:00 AM
The following is audio of the conference last week in Austin hosted by the Intelligence Studies Project, a joint venture of the Strauss Center and Clements Center at the University of Texas at Austin.

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The following is audio of the conference last week in Austin hosted by the Intelligence Studies Project, a joint venture of the Strauss Center and Clements Center at the University of Texas at Austin. The conference was entitled, "The National Security Agency at the Crossroads." It was a highly-unusual direct engagement of a number of senior-level NSA officials (current and former) with some of their academic, legal, and policy critics and defenders on many of the major issues currently in dispute. We highly recommend listening to these sessions, which are unlike any other discussion of the NSA and Snowden controversies. The conference opened on Thursday morning with a history-focused speech from Admiral Bob Inman, who among many other things, served as NSA’s director during the crucial 1977-81 period.  Admiral Inman’s talk was packed with fascinating insights and rare nuggets, which taken together provided a rich historical foundation for the remainder of the conference. Session 1: The Role of Media Moderator: Benjamin Wittes (Brookings Institution) Participants: Siobhan Gorman (Wall Street Journal), Shane Harris (Foreign Policy), Ellen Nakashima (Washington Post) The first panel session dealt with the media's performance since June of 2013. Three journalists who have covered surveillance issues in the wake of the Snowden disclosures, and surveillance issues more generally, talked about their experiences and gave their candid evaluations of the press's institutional performance, strengths, and weaknesses. They also addressed concerns raised by former NSA deputy director Chris Inglis, who spoke and asked questions from the floor. Session 2: NSA in Historical and Diplomatic Perspective Moderator: Jeremi Suri (UT) Participants: Susan Landau (Author, Surveillance or Security? and Privacy on the Line), Kristen Silverberg (Former U.S. Ambassador to the European Union), James Simon (Former Assistant Director of Central Intelligence for Administration) This was the most diverse and wide-ranging of the sessions, as it brought together a technologist deeply-focused on privacy policy, a technologist with rich experience on both sides of the fence of private sector cooperation with the intelligence community, and a diplomat with considerable experience in US-EU relations. The resulting conversation (this session, like all the others, eschewed set-piece presentations in favor of a carefully-moderated dialogue) was every bit as interesting as one might expect. It’s well worth a listen for anyone who might want to better understand matters such as the private sector-public sector interface, various historical issues involving encryption that have previously roiled that relationship, and the impact of the current disclosures on US-EU trade negotiations. Lunchtime Keynote: Bruce Schneier (Berkman Center, Harvard Law School) Bruce is a dynamic speaker, well-known for his capacity to break through the immediate details of technology and law in order to provide a larger, long-term perspective on the challenges to maintaining privacy in the evolving digital environment. Among his interesting insights:  a thoughtful meditation on the privacy consequences that follow when it becomes more efficient across society for us to save all data (and use search tools to retrieve what you need) as opposed to carefully parsing and sorting data (saving what you want in particular ways while deleting the rest).  Bruce’s speech was provocative and insightful. It will run as this week's episode of the Lawfare Podcast. Session 3: The 21st Century Fourth Amendment Moderator: Ahmed Ghappour (UT) Participants: Hanni Fakhoury (Electronic Frontier Foundation), Benjamin Powell (Fmr. General Counsel, Office of the Dir. of National Intelligence) With the afternoon, came a sharp turn into the legal weeds. Rather than dive directly into debates over 215 metadata or 702 content, however, the conference devoted a full session to the background Fourth Amendment issues undergirding the larger debate. The resulting conversation dove deeply into key questions such as the relevance and fate of Smith v. Maryland and the third-party doctrine, particularly in light of Jones. But it was not merely a doctrinal discussion; there was plenty of debate regarding the underlying principles as well. Session 4: The Metadata Debate Moderator: Bobby Chesney (UT) Participants: Steven Bradbury (Fmr. Acting Asst. Attorney General, Office of Legal Counsel), Jennifer Daskal (American University) Having built up the Fourth Amendment foundation, the conference then focused attention on issues specific to the bulk collection of metadata. Notably, this session included no small amount of input from audience members, including Inglis, current NSA General Counsel Raj De, and current NSA Chief Compliance Officer John DeLong. The net result of their input, combined with the debate between the panelists themselves, produced a highly-accessible and unusually-informative (and well-informed) discussion of the metadata controversy (including prospects for reform in this area). Session 5: The Content Collection Controversy Moderator: Bobby Chesney (UT) Participants: Timothy Edgar (Brown University), Jennifer Granick (Stanford University) The metadata session was followed by a session that focused exclusively on content-collection.  The dynamic was similar: a vigorous debate between the panelists following a careful preliminary exposition of the issues, punctuated by highly-informative interjections from current and former NSA officials.  The end result was a very rare opportunity to match strongly-framed critiques of NSA activity with extremely well-informed, and direct responses. This session in many respects contained the most sustained, direct engagement between NSA officials and their critics. The discussions between Granick and Edgar and the current and former officials in the audience are unlike any other public discussion we have heard about what NSA does and does not do in the way in the way of content collection and use of the information thus collected. Session 6: A Roundtable Discussion on the Compliance Program and Oversight Framework Moderator: Ahmed Ghappour (UT) Speakers: John DeLong (NSA, Director of Compliance), Alexander Joel (Civil Liberties Protection Officer, Office of the DNI), Margo Schlanger (University of Michigan) The compliance session continued the pattern of matching vigorous critiques with responses from key personnel from the Intelligence Community.  The conversation ranged widely across the various forms of compliance and oversight involved in NSA activities.  Both those who want an introduction to this area, and those who want sharp criticisms and granular responses, will find much to appreciate here. Session 7: The Prospects for Reform Moderator: Bobby Chesney (UT) Participants: Carrie Cordero (Georgetown), Julian Sanchez (Cato) The conference concluded with a slightly-longer session regarding the path forward.  This session opened with a survey of the developments on the assessment and reform fronts over the past 9 months, and then against that backdrop the participants came to grips with a wide-variety of specific proposals (with an emphasis on the President’s January presidential decision directive).  There were interesting points of agreement between the participants (and others in the room), though also clear lines of departure that help to explain why and how the larger public debate remains difficult to resolve.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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