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providers. giving you a front row seat to democracy. we are joined today by george crohn or. he is the national security program senior fellow at the foreign policy research institute. we'll be talking about the reauthorization debate surrounding section 702 of the foreign intelligence surveillance act. good morning, george. >> good morning to you. thanks for having me on the program. >> thanks so much for joining us. let's start off, sections 702 is close to sunset at the end of the year. congress is supposed to extend it. what does that allow the u.s. government to do and how is it different from other types of surveillance that the government has authorized? >> sure. what's 702 allows the government to do is to target

non-u.s. persons, foreigners, not u.s. persons, reasonably believed to be located outside of united states. so they are outside of the domestic u.s., to acquire foreign intelligence information. and it does that and is implemented principally by the national security agency, through a couple of surveillance techniques that it uses. but the critical distinction between section 702, which frankly is a program that grew out of the post 9/11 intelligence issues and exchanges in the telecommunications environment. that happened in the 21st century. how it differs from what i will call traditional -- which was a foreign intelligence surveillance act that was first passed by congress in 1978. it is that there is no warrant. the foreign intelligence surveillance board, which is

the courts that was established by the pfizer act, consisting of 11 u.s. district court judges that serve in a secret compartment and facility in washington d.c.. and they handle applications for court orders, both under traditional fisa and also handle certifications that are presented to them under section 702. and the difference is, traditional fisa, your target is either a foreign power or an agent of a foreign power. and you have to convince the foreign intelligence surveillance that there is probable cause to believe that the target is a foreign power of an agent of a foreign power. and is using the telecommunications facilities that you want to target to possess or transmit foreign intelligence information. there is an individualized determination by the foreign

intelligence surveillance board, based upon probable cause, that the target is a foreign power or agent of a foreign power. under 702, there is no probable cause hearing. there is no individualized target. instead, because the targets are all foreigners who do not possess fourth amendment rights under the constitution, the government instead asked the certification that describes various types of foreign intelligence information that the government is seeking to obtain by targeting individuals who they believe possess or transmit that type of foreign intelligence information. and that certification goes to the foreign intelligence surveillance court, with a series of procedures that are designed to protect u.s. citizens. and the reason those procedures were included and are included is congress recognized, when it

created section 702 in 2008, that if you are targeted and limited to the target, foreigners outside of the united states, there are u.s. persons communicating with those foreigners. that it was an inevitable byproduct of 702 collection that u.s. person communications would in fact be collected. the term used is incidentally collected, as part of the seven o2 collection program. which, as i say, does not involve individualized probable cause determinations with respect to those individuals, foreign individuals who were targeted. so without that probable cause hearing, without that individualized targeting by the surveillance court, the law instead says that we have this set of procedures that are called targeting procedures, minimize a shun procedures and

querying procedures along the attorney generals acquisition guidelines. and those procedures are designed to serve as a proxy for the requirement that would've hurt the wise exist under title 105. so for example, title one of three which is the law enforcement analog. the 702 collection perseids without any individualized targeting determination, and there is, as i say, significant collection of u.s. persons communication. >> okay. and i want to ask you another question, but i also want to remind our viewers of the phone line. they can start calling in with their comments about foreign surveillance or their questions for george crohn are. the numbers are democrats,

202748 8000. republicans, 202748 8001. independents, 202748 8000 into. when you can text us a 202748 8003. again, before we get to some of those calls, i want to bring up, this is some video of representative jim jordan. he brings up what he sees as the government exceeding its surveillance of authority under the fbi. so i want to watch his comments about data he says is being collected on americans and get your thoughts. let's watch. [inaudible] >> 10,000 people, approximately 10,000 people at the justice department have the ability to

queer rain this incidental database without any probable cause. and we know as the ranking member the full committee, there were 3.4 million queries of this database, and 30% of those were -- is that all right? >> i don't have it might fingertips all of those numbers, but i do recall specifically the 3.4 million queries conductor the prior calendar year. >> and it's simple, right? require probable cause if you're going to query this database on american citizens. >> as i have stated, i urge congress to require that the fisa court review those query terms before. >> do you agree? >> what congressman, that's something we're looking at right now. i think you put your finger on, it which is that you want to increase privacy and civil liberties as much as possible. the pros of that is that it makes it harder to run a u.s. persons search. the con of that is that it makes it harder to run a u.s. persons search.

so there is a balance there. >> americans are being picked up, in this incidental collection. we don't know the number, my guess is it's pretty darn big. they won't tell us, and without probable cause, that database is being searched. 3.4 million times, with all kinds of air raids, as mr. gaetz in his round of questioning determine earlier. how about we get the fbi out of the business altogether? >> that was representative jim jordan. he says that the fbi maybe exceeding its authoritarian collecting data on americans in unknown amounts. what is your response to that, george? >> first of all, again, the fbi doesn't collect the data on americans. representative jordan is incorrect and styling it in that fashion. nsa, the national security agency, is the principal agency

involved in implementing the 702 program. the fbi can nominate a much smaller percentage of what is in the database as targets, based on its own investigations and so on. but the data is stored and collected by the national security agency. the fbi actually only gets access to a very small part of that data. 3.2%, according to the latest statistical or port, which was issued by the national intelligence about three weeks ago at the end of april. so it is a large surveillance program. there are 246,000-plus foreign targets. but the fbi getting exist to 3.2% of the database only seizes the data for 8000 of those. that said, let's cut to the chase. the fbi's querying of the

database as been a foreign for a decade or more. it continues to be problematic. because the fbi is in a position of having both a foreign counter intelligence mission and a law enforcement mission. i might point out that it is congress who in 1978 said, you can use data derived from foreign intelligence searches for foreign moore intelligence searches and for evidence of crime. congress said that, they created that law. and they've never changed that law. so the fbi, as part of its law enforcement, is entitled to search within certain restricted parameters, certain parts of the sections of no tube database for evidence of a crime. and it can do that in conjunction with its foreign intelligence activities so the fbi isn't collecting the data.

but it is in the database. now, all queries, and this is what it gets down to. it's not the original collection, as i said. in u.s. person communications, representative jordan is correct. the collection is larger, if you are talking which mission 46,000 foreign targets, you're talking about a billion or more communications per year, collected under the 702 program. congress also recognized, when it created section 702, that it was impossible to target foreigners outside of united states without obviously including as an inevitable byproduct of the collection of the u.s. person communications who are talking and communicating, whether it's by telephone or by email with those foreign targets. representative jordan is also probably correct that that incidental collection, given the scope of the program, is also large. probably numbering in the millions of communications. and what's important to note is

when they are first collected, no one knows what's in the 702 database. the collection is so large and so programmatic that they are stored in the database, and the only way you ever identify a communication and who the communicants are is by querying the database. sitting at your computer, typing in a series of search terms. the search terms that representative jordan is talking about is the use of u.s. person query terms. typing in my name, my social security number, my address. something that identifies me as a u.s. person. representative jordan says, you should only be able to do that if you have probable cause. the queries are required to be reasonably designed in a way where you have a specific, factual basis for assuring that the query will extract foreign intelligence information, for evidence of a crime. they are not on structure, an agent doesn't just get to sit

at his terminal and type in whatever he wants whenever he wants. the fbi has made numerous changes in its technical systems to restrict access to the 702 database that his agents can query. and they have consistently worked to sharpen its querying standards in terms of how those queries are shaped. so i will just say this. if you adopted representative jordan's proposal, and believe, me there are many critics out there who want a probable cause standard before you can query the database. i assume implicit in that notion is that the fbi doesn't get to decide when it is probable cause. but that the foreign intelligence surveillance board would decide that. and if that's the case, the use of u.s. person query terms, which is a very important part of the intelligence process, of

the ability to take the information that 702 collects and turned it into usable intelligence. that part of the process would essentially grind to a halt. because the foreign intelligence surveillance sport, as i said, is comprised of 11 district court judges who have other jobs, and they serve on the foreign intelligence surveillance court for one term, seven years. they're appointed by the chief justice of the united states. but this is not their full-time job and there are only 11 of them. when you, for example, look at one that does require probable cause standards. as i mentioned earlier, and the foreign intelligence surveillance court last year issued slightly under 400 title one foreign intelligence surveillance board orders for title i surveillance. probable cause base surveillance, 400. i've already said that even setting aside the fbi, the other three agencies, and i say, cia, the national

counterterrorism center that he is the database. query that database using u.s. person query terms, about 9000 times last year. the foreign intelligence surveillance board has no ability to hear and decide 9000 probable cause cases for every time any agency wants to use the u.s. person query terms. as i say, there are very tight procedures that govern that process. but if you actually introduced a probable cause standard in the manner the representative jordan suggests, it would eliminate a very important intelligence component of the 702 program. >> all right. george, let's go to the phone lines now. echo will be our first caller from decatur, georgia, democratic line. what's your question and comment, ethel? ethel, are you with us this morning?

all right. we'll have to come back to ethel. let's try joel. joel is in brooklyn, new york, on the democratic line. joel, you're on. >> good morning. i have a question for this guest. you're talking about queries and names. do they ever query epstein and chuck schumer for their involvement in sex trafficking? and jamie diamond and the founders of google. they are all american citizens. some of them are -- why aren't they being queried to find out what they are doing with this epstein character, and they are being compromised by people who occupied palestine. and epstein and his $600

million. okay? >> i also want to bring up, this is a tweet we received from robert douglass. in section 702, is it possible to target u.s. persons for political harassment without telling anyone? could it be used that way? we are presenting a lot of questions, george, about use. and could it be used to either target individual americans for partisan reasons, or just for different things that are in the news, like the epstein case? >> could is a very broad word. if you had rogue agents up, if you had people who had in their own minds the ability to disregard all of the complaints

and regulatory restrictions that are in place, about accessing the database, yes. there's a lot of information in the database. and if you want to skirt all of the restrictions and ignore them, and risk getting caught and getting fired from your job, yes, you could dip into the database and see what he would find. but in a broader casting of how the program works, no, the 702 program is the most highly regulated government program certainly that i am aware of. the compliance, rules, and regulations that exist, all of the folks, all of the recent news you've read in the last week about the foreign intelligence surveillance court pointing out -- representative jordan talked about the widespread query practices. the only reason those

violations are publicly known is because they are reported by the fbi and the other agencies that use or have access to 702 data. the law requires it, and they abide by those requirements. i should point out that in the 15 years that section 702 has been in existence, no inspection or review of 702 procedures has ever revealed an intentional violation of the procedures and guidelines that regulate the compliance with the section 702 database. so the answer is, it doesn't happen. but nonetheless, it's a very complex program in the fbi has a rather checkered history of trying to comply with all those rules and regulations. now the answer to your question as to why jeffrey epstein, or jb diamond, or others aren't being reviewed is precisely because the 702 program is a

foreign intelligence program. it's a national security -related program. you cannot access section 702 database with a query unless that query is reasonably confined to extract foreign intelligence information. or, as i said earlier, the fbi can look for evidence of a crime. but only with respect to crimes that relate to national security. for a crime that is not national security-related, a bank robbery, or a drug ring, some of the cartels foreign implications. but just what i would call the more mundane criminal activity. you cannot go into the 702 database. the reason why some of the criminal activity that some of the callers of identified this week, why the 702 database is

used to explore that is because congress said it was not supposed to happen that way. they are a whole set of regulations and procedures that govern that. and while the fbi has had problems with that overtime, and it does more querying than any other agency because the law enforcement role, in it has changes. >> maria is calling from houston texas on the independent line.

if there is limited access to judges with probable cause, there can be probable cause judges. the answer is simply that congress when it made up for the surveillance board chose this mechanism to populate that, and by this mechanism, i mean the idea that he would have actual u.s. court judges, sitting around the country every day 11 of them now, is the correct numbers i sit, appointed for seven years. and that is how you would populate the foreign intelligence surveillance board. they are entitled there is amicus curiosity. there is a system who is

qualified. in some of the thornier issues that are presented to the foreign intelligence board. for disability benefits, that sort of thing, congress created a specialized branch consisting of nothing. but review foreign intelligence surveillance applications for title i authority. certifications for 702 authority. it's possible it could be done that way, but congress chose to set it up differently. interestingly, if i might point out, this morning the wall

street journal called it's editorial board abolition of the foreign intelligence surveillance court. there would be no court at all, in its view, because it says that the court is essentially shielding the fbi from accountability for its 702 excesses. they made the same pitch about five years ago, i wrote a piece at the time that said that you can't do that, in my view. you cannot abolish the foreign intelligence surveillance court. congress could certainly add more judges, it could create a different tribunal to handle other parts of the foreign intelligence surveillance act. what it cannot do, in my view, constitutionally at least, is abolish the foreign intelligence surveillance court and have no substitute. way back in 1972, the supreme court basically said that even if you are trying to get

authorization to put up foreign surveillance, foreign electronic surveillance, you have to have at least for domestic investigations, you have to have a neutral and detached judicial person pass on those requests. because prior to fisa, people should understand, there were no restrictions on the conduct of electronic surveillance for foreign intelligence purposes. it was entirely committed to the discretion of the executive branch. and more particularly, to the president. and the presidents role under article two as commander-in-chief, and the principal in the nations affairs. before fisa, there were -- the executive branch and the executive branch alone dictated how electronic surveillance was conducted for foreign intelligence purposes. so for those folks out there, like the wall street journal, who think that the fisa court should be abolished, as i said, i don't think it constitutionally can be abolished.

fisa was designed entirely to add a judicial role in the conduct of american foreign intelligence operations, with respect to electronic surveillance. i might point out, to this day, as far as i know, the united states is the only country in the world that uses any kind of judicial intervention in its foreign intelligence surveillance process. >> let's go to mountain home, arkansas now. linda, on the republican line, go ahead. >> thank you. i really think they ought to keep the fbi out of there. we know we can't trust them, and we know they've been firing you guys. and these intelligence people, the big smart guys, they should never be around anything. that's just my feeling on it. >> any thoughts, george?

>> well, as i say, the fbi is the only agency in the government that has the responsibility for conducting domestic counterintelligence operations. and foreign intelligence collection, in some respects, within the united states. it's the only agency that has in its charter, the ability to do that. the cia for example is barred by the law for conducting any such activity in the united states. if you take the fbi out of the equation, there is no one looking for domestic terrorists. there is no one looking for plots in the united states. i don't think that is tenable or workable. i agree with the caller, and have acknowledged obviously that the fbi as a very checkered end difficult time conforming with all of the

requirements that relate to accessing the 702 database. they are, by all accounts, trying to make improvements and those improvements have shown progress. additional work may be necessary. congress may certainly consider additional reforms, but in the abstract, trying to run an effective foreign intelligence program without the principal law enforcement agency in the federal government being involved is very problematic. >> let's go to tennessee now. john a, democratic line. >> thank you. can you please give me a moment to understand. the last state meant that he said is correct. and i don't think enough people understand that. my question is, i am a family

that's in hawaii, military, with a contractor group in hawaii. in the military it is considered overseas. the last thing i heard with the fbi in the cia's during the war. he said the fbi and the cia will work together. all i am trying to say is, hawaii has picked the state and they're going to wrap it over there. that was a private contractor, a government contractor, and my understanding is what was the pfizer court? in the military it is --

thank you. >> any thoughts, george? my only thought is at least with respect to the surveillance act and the application of 702, hawaii is certainly part of the union. it's considered part of the united states. it prohibits the targeting of any person in the united states or abroad, hawaii is considered part of the united states. there is no 702 activity being directed at hawaiians or anything like that. with respect to how the defense department to finds hawaii for billing purposes. i do know that hawaii, alaska,

fisa applies with certain of those states. >> my take on everything with 702, and the fisa. the upper management only needs to go. no one has the ability to make sure that they are doing what they are supposed to be doing, and that they're not looking at the average citizen. upper management only these to go and start over, because they've lied to congress, they

don't turn over documents like they're supposed to. they lie on fisa applications, and what happened to him? he got reprimanded, lost a little bit of pay, and all of that. much anybody else, if you're in the police department and you pull something like that, you're going to get fired and you're also going to get prosecuted for filing a police report. this government is rampant, and most of them just need to go. >> any thoughts, george? >> i guess first of all, i assume the fisa application that the caller was referring to is the page application. there were mistakes with respect to that application. once again, i would point out, that was fully investigated. the only reason anyone knows all of the details about the

carter page application is because the department of justice inspector general had a full investigation released in the report. i think the individual she was referring to, there has been one person who was pleading guilty in connection with that. when she said they lied on the application, they didn't tell the court in subsequent applications about concerns they had with respect to the steele dossier. but by any measure, the carter page application was not a shining moment in the fbi's history. as i say, the fisa group passes on hundreds of those per year. it has, since the fisa was implemented back in 1978. it's the only time there's ever been a situation like that.

i think people need to keep that in a certain level of perspective. i can't report or tell you how many times that may or may not have happened with connection with title three law enforcement surveillance members. but i suspect it has happened. as far as all of the people in charge, with respect to intelligence surveillance, i've told you how that court is populated. you can't get rid of them, the district court judges, and no one has ever suggested at anytime that a fisa court judge has done anything improper in carrying out the duties of that court. now we've talked about the fbi's issues with respect to its query problems. but on the whole, if the basic

context here is that the fbi and other agencies in the intelligence community are politicized or weaponized against a particular viewpoint, i really can't speak to that. i don't agree with it, i know many of the people that work in these agencies or have worked at them in the past. i worked at the national security agency quite some years ago. but i work there, i don't consider myself to have been weaponized in any way. so that's your political viewpoint, you're entitled in this country to hold it. i don't think that that viewpoint is one that can or should be used in any sort of intelligence way to structure or consider what reforms might be needed to section 702 or a foreign intelligence act. >> all right. on the line from utah, can,

independent. >> yes, good morning. thank you to c-span. this is a more technical question, i don't know if george can answer it. it's a comment, it's not a question. i'm an american citizen but the u.s. -- i would imagine that those phone calls are being monitored. and that's perfectly fine, there is nothing secret in my conversations. however, i have noticed many times, and this has been going on for the last seven or eight years, in the middle of the conversation sometimes, you hear exactly what you've been saying and hearing, as if the tape recorder is running, if it's not working properly. and it's playing back your conversation.

so i hope the nsa forces are watching the tv and paying attention. vika's even if i know i was monitored, now the tape recorder is playing it back. thank you very much. >> any thoughts? >> sure. i'll take the opportunity to explain a little bit about how that works. first of all, the queer and was referring to telephone calls. section 702 has two types of surveillance that it uses for this program. one is called upstream surveillance, that takes place on the backbone point of the international telecommunications system. the other is called downstream, it's what used to be called prism back in the edward snowden days. downstream surveillance, which takes place largely at the ending point of the

telecommunications process. because downstream surveillance only connects internet communications, email, that sort of thing. and all of this is accomplished, i should point out, with the cooperation directed by law, electronic communication service providers likes verizon and at&t, or email providers like ex finna tea or comcast, or microsoft. so 91% or so of section 702 is downstream collection. and that's email communications. so it wouldn't involve telephone calls at all. it's possible that the collar is correct, that if he's having a telephone call, that the upstream program would pick up that communication, even though he is an american u.s. person. but that's only possible if his relatives somehow, in a foreign

country, our targets. foreign targets, in other words people who the government as to reasonably believe, and credibly believe, with very detailed regulatory procedures. that they possess communicate or would come into possession of foreign intelligence information. in the rather unlikely event that this collars relatives are such persons, then yes, it's possible the theory are foreign targets and that his telephone calls would be incidentally collected. they would go into the database, where again, no one would know they existed until or unless someone ran a query that pulled that communication out,, at which point that query has to be designed to find an extract foreign intelligence information. and only at that point what it go into the process of being used for foreign intelligence purposes.

at this point, i will add one last point. if and when a u.s. person, let's say one is extracted from the database and you're a u.s. person. and it's your call, and for -- the foreign target, the information in the call in one form or another has foreign intelligence on it. and let's go further and say that that foreign intelligence values analyzed and distilled, and put into an intelligence report. that is disseminated elsewhere in the intelligence community. the rules require that anytime that happens, that the identity of the u.s. person be masked. in other words, if i have an intelligence report based on a telephone conversation, and a u.s. person is communicating in it. the report would say, a u.s. person, the name would be completely blocked out. any identifying information

will be blocked out and deleted. and instead, it would say, a u.s. person spoke with, and in the name of the target, and discussed matters. that would be the intelligence report that would be issued and there is another whole set of procedures that govern those circumstances, or that u.s. persons identity can ultimately be unmasked or revealed. but there is another whole set of procedures to govern that. this is a very highly regulated foreign intelligence collection program. >> all right. we're going to have ended there. again, george cronin from the foreign policy research institute. thank you so much for joining us this morning george. today, security concerns out of 2024 presidential election cycle. with testimony from commissioners live at 3:30 pm eastern. before the senate rules and administration committee on c-span 3. c-span now, our free mobile

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