1055 (Author at Cato Institute) https://www.cato.org/ en Julian Sanchez discusses the Lincoln Project, police reform, and other topics on the In Lieu of Fun podcast https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-lincoln-project-police-reform-other-topics Mon, 22 Jun 2020 12:38:32 -0400 Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-lincoln-project-police-reform-other-topics Julian Sanchez discusses FISA reauthorization on the Cyber Cyber Cyber Cyber podcast https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fisa-reauthorization-cyber-cyber-cyber Sun, 14 Jun 2020 12:40:10 -0400 Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fisa-reauthorization-cyber-cyber-cyber Privacy in a Pandemic https://www.cato.org/multimedia/events/privacy-pandemic Ali Lange, Ryan Calo, Harper Reed, Julian Sanchez <div class="mb-3 spacer--nomargin--last-child text-default"> <p>As states begin easing pandemic restrictions, Americans are hearing that a&nbsp;robust regime of “testing and tracing” is critical to reopening safely. Traditional contact tracing relies on meticulous interviews with patients to identify potential exposures, but today, many see a&nbsp;role for cutting edge technology in the fight against COVID-19. Many such proposals raise privacy and civil liberties concerns: Does high‐​tech contact tracing require giving government access to a&nbsp;database of Americans’ locations? Can the process be done anonymously? Could an architecture of monitoring designed to mitigate a&nbsp;pandemic be coopted for less salutary purposes? Technologists and privacy experts will explore an array of different models for digitally assisted tracing and exposure notification—and how to fight contagion without sacrificing privacy.</p> </div> Thu, 28 May 2020 11:50:12 -0400 Ali Lange, Ryan Calo, Harper Reed, Julian Sanchez https://www.cato.org/multimedia/events/privacy-pandemic Report Discloses Unlawful “Backdoor Searches” of FISA Database https://www.cato.org/blog/report-discloses-unlawful-backdoor-searches-fisa-database Julian Sanchez <p>The Intelligence Community’s annual <a href="https://www.intel.gov/assets/documents/702%20Documents/statistical-transparency-report/2020_ASTR_for_CY2019_FINALOCR.pdf">Statistical Transparency Report</a> was released earlier this month, and there’s a&nbsp;significant piece of news buried in a&nbsp;footnote: On at least six occasions in 2018 and once in 2019, the government unlawfully reviewed wiretapped communications from a&nbsp;foreign intelligence database while pursuing ordinary criminal investigations unrelated to national security—something the previous year’s report claimed had never happened. The disclosure validates civil libertarian concerns about so‐​called “backdoor searches”: The use of broad foreign intelligence authorities nominally aimed at non‐​Americans outside the country to monitor Americans’ communications, circumventing the normal constitutional warrant process.</p> <p>First, some context. Section 702 of the Foreign Intelligence Surveillance Act, which Congress created in 2008, permits the National Security Agency to obtain sweeping general warrants from the secretive FISA Court, under which they may intercept the communications of non-U.S. persons who are outside the country without individualized authorization. This effectively codified an extralegal wiretapping program secretly approved by President George W. Bush shortly after the 9/11 terror attacks in 2001. Traditionally, when intelligence agencies conducted wiretaps inside the United States, they needed a&nbsp;particularized warrant naming a&nbsp;specific target as long as one end of the communication was American. But §702 loosened the rules: Now instead of individualized warrants, the government asks the FISA Court to sign off on general “targeting procedures” used to select foreign targets located abroad. The communications of those targets can then be intercepted as they pass through American networks, including their communications with American citizens protected by the Fourth Amendment.</p> <p>From the outset, civil libertarians have been worried that such an authority would inevitably vacuum up enormous quantities of Americans’ communications, even if wiretap “targets” were foreign. The incredible scale of collection virtually guarantees that’s the case: Last year the number of foreign §702 targets rose to an astonishing 204,968 (up from 164,770&nbsp;in 2018). This massive cache of intercepts creates a&nbsp;tempting means of bypassing the ordinary warrant process for criminal investigations: Simply search for a&nbsp;U.S. person’s e‐​mail address, phone number, or other identifier in the §702 database.</p> <p>Backdoor searches are quite common. We know that agencies other than FBI (which in effect means NSA and CIA) searched the database for U.S. person identifiers and reviewed intercepted contents as a&nbsp;result&nbsp;9,126 times last year.&nbsp;FBI doesn’t count how frequently they query the database, but they’re now required to obtain a&nbsp;court order before actually reviewing U.S. person communications for criminal investigative purposes unrelated to national security.&nbsp;Until this most recent report, the government claimed that this had never happened.&nbsp;But the 2020 report discloses a&nbsp;number of recently discovered instances in which they did just that: One in 2016 (before the warrant requirement was added), six in 2018, and one in 2019—that we know of, at least.&nbsp;</p> <p>While it’s good these instances were belatedly detected, this disclosure underscores the problem of giving FBI, which has dual law enforcement and intelligence responsibilities,&nbsp;such poorly monitored access to the fruits of §702’s general warrants.&nbsp;Unlike other agencies, FBI is not required to report how often they query the §702 database for U.S. person identifiers—though by their own admission, they do so far more often than their peers.&nbsp;</p> <p>Congress should conduct vigorous oversight over how these unlawful searches occurred—and remove the exemption that spares FBI from having to tally their searches for Americans in this enormous database.&nbsp;The loophole exists because FBI says their systems aren’t designed to track the necessary information… a&nbsp;design choice that makes compliance problems like the ones newly disclosed more likely, and harder to catch when they occur.&nbsp;</p> </p> Fri, 15 May 2020 15:59:07 -0400 Julian Sanchez https://www.cato.org/blog/report-discloses-unlawful-backdoor-searches-fisa-database A Chance to Fix FISA https://www.cato.org/blog/dissecting-fisa-compromise-bill Julian Sanchez <p>Last week, three Foreign Intelligence Surveillance Act authorities <a href="https://www.cato.org/blog/those-must-have-expiring-fisa-authorities-they-expired-sort">expired</a> after a&nbsp;watered‐​down <a href="https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116hr6172ih.pdf">reauthorization and reform bill</a> that had been hastily approved by the House ran into opposition in the Senate. <a href="https://www.rollcall.com/2020/03/16/senate-passes-77-day-fisa-surveillance-stopgap/">Though the Senate ultimately agreed to a&nbsp;short‐​term 77&nbsp;day extension</a>, the House has yet to act on it. Since the authorities are grandfathered for investigations already underway, or for potential offenses a&nbsp;temporary lapse is unlikely to have much operational impact, and an extension soon seems inevitable. When Congress does finally take up the issue again, this most recent compromise bill will be the baseline for further improvements—and improvements are sorely needed.</p> <p>There are certainly some things to approve of in the <a href="https://thehill.com/homenews/house/486905-house-strikes-last-minute-surveillance-deal">failed compromise bill</a>, but it ultimately falls well short of what’s necessary—and includes a&nbsp;lot of cosmetic tweaks designed to mollify a&nbsp;<a href="https://www.nationalreview.com/news/trump-tells-republicans-he-wont-extend-surveillance-law-without-significant-reform/">president outraged</a> over the <a href="https://www.cato.org/blog/diagnosing-fbi-failures-inspector-generals-fisa-report">mishandling of the Carter Page investigation</a>, without actually effecting substantive change.</p> <p>Let’s review both the good and the not‐​so‐​good. The bill would finally put an end to the misbegotten “call detail records program” <a href="https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order">initially exposed by Edward Snowden</a> nearly seven years ago, and preserved in a&nbsp;diluted form under the USA Freedom Act of 2015. Though more limited than its predecessor, which indiscriminately vacuumed up nearly all domestic call records, the USA Freedom version of the CDR program nevertheless led to the government <a href="https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY2018.pdf">collecting hundreds of millions of call detail records each year</a>, based on just a&nbsp;handful of orders. Like its predecessors, it was both <a href="https://www.wsj.com/articles/nsa-improperly-collected-u-s-phone-records-a-second-time-11561541520">plagued with compliance problems and errors</a>, and essentially useless operationally, as the independent <a href="https://www.pclob.gov/reports/UFA-Report/">Privacy and Civil Liberties Oversight Board confirmed in a&nbsp;recent report</a>. Though NSA itself decided to mothball the program, the <a href="https://www.nytimes.com/2019/08/15/us/politics/trump-nsa-call-records-program.html">administration formally requested that the authority for it be renewed</a>, just in case they saw a&nbsp;need for it in the future. Rejecting that idea, as this latest bill does, should be a&nbsp;no‐​brainer.</p> <p>There are also welcome–if inadequate–changes to the broader business records provision, also known as Section 215, which (as the name suggests) enables the government to obtain business records, or any other “tangible thing,” that is deemed “relevant” to a&nbsp;national security investigation. Because the bar for obtaining §215 orders is far lower than the probable cause required for a&nbsp;full‐​blown FISA warrant, the new bill closes a&nbsp;potential loophole by clarifying that the authority may not be used to obtain any record that would otherwise require a&nbsp;full search warrant in an ordinary criminal investigation—and that this includes location information, which the Supreme Court brought under the protection of the Fourth Amendment in <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf"><em>Carpenter v. United States</em></a> (2018).</p> <p>Yet this bill does not go nearly as far as Sen. Ron Wyden’s <a href="https://www.govtrack.us/congress/bills/116/s3242">Safeguarding Americans’ Private Records Act</a>, which would similarly require a&nbsp;warrant to obtain a&nbsp;target’s Web browsing history and other categories of particularly sensitive records. Nor, perhaps more importantly, does it address the underlying breadth of §215: The trivially low bar of “relevance to an investigation” compounded by a&nbsp;<em>requirement</em> that the FISA Court approve orders for individuals with any connection to the target of an investigation. In the now notoriously botched investigation of former Trump campaign advisor Carter Page, for instance, the FISA Court would have been presumptively obligated to issue an order for the financial or telecommunications records of anyone “known to” or “in contact with” Page, since he was the target of a&nbsp;foreign intelligence investigation believed to be acting as an agent of a&nbsp;foreign power, and all such records are defined as automatically “relevant” by the statute. In principle, that would have made the records of virtually the whole of the senior Trump campaign staff available to the FBI without any further basis for suspecting them individually,</p> <p>Also in the positive column are expansions of the role of the FISA Court’s <em>amici curiae</em>—expanding their ability to provide the Court with an independent perspective from the government’s, and assuring them access to files and evidence needed to do their job effectively—as well as a&nbsp;firmer deadline for the publication of significant rulings by the Court. But these are ultimately efforts to compensate for a&nbsp;deeper defect in the FISA process: Unlike ordinary criminal wiretaps, FISA surveillance is normally permanently covert by default, with only a&nbsp;tiny fraction of those spied on every learning about it. Eliminating that back‐​end notice to the target of surveillance—notice that is normally considered constitutionally necessary to make a&nbsp;search “reasonable”—also eliminates an important incentive to be scrupulous in seeking applications. There may often be compelling national security reasons to delay notice to individual targets, perhaps even for quite extended periods of time, but at least in the case of U.S. persons, there is no good justification for making secrecy the universal, uniform default: The government should have to make the argument once surveillance terminates. In cases where surveillance has ultimately failed to support the government’s belief that a&nbsp;U.S. target had acted as a&nbsp;foreign agent, then there will often be no compelling national security rationale for failing to disclose.</p> <p>Finally, there are what I&nbsp;think of as the “Carter Page provisions” of the bill. These are fairly clearly calculated to persuade Donald Trump that serious reforms have been enacted which will prevent a&nbsp;repeat of the grossly flawed investigation of his erstwhile advisor. As one might expect, they are largely cosmetic—sounding “tough” but with little real chance of making much practical difference. Criminal penalties for misuse of FISA are increased somewhat, which doesn’t add up to much if, in practice, nobody is ever actually criminally prosecuted for FISA misuse. Even in the Page case, only one of the attorneys involved in reviewing the application faces even the slenderest chance of prosecution. FBI agents are not thinking “well, I’ll falsify an application if I&nbsp;risk a&nbsp;three year prison term, but eight is too much!” They don’t believe they will be prosecuted, and they are well justified in that belief.</p> <p>There’s also a&nbsp;provision requiring the “attorney general” to approve in writing of investigations targeting candidates for federal office before certain FISA tools can be employed. “Attorney general” is in quotation marks there, because for FISA purposes “attorney general” is actually defined as a&nbsp;cluster of senior Justice Department officials who must already sign off on any full‐​blown FISA surveillance. And given the narrowness of this provision, it’s not clear it would have applied even to the investigation of Page—not himself a&nbsp;candidate for any office.</p> <p>These aren’t necessarily inherently objectionable, but they are ultimately Potemkin reforms designed to persuade an audience of one to sign an otherwise relatively weak bill.</p> <p>In short, the FISA reauthorization bill qualifies as a&nbsp;promising start, but falls fall short of the fiery rhetoric we’ve heard lately about the need to overhaul the system. But it remains a&nbsp;stronger baseline than many civil libertarians would have thought possible a&nbsp;few years ago, and if amendments offered before a&nbsp;final vote address some of the shortcomings identified here, reality might actually live up to the rhetoric.</p> <p><em><a href="https://www.justsecurity.org/69437/a-chance-to-fix-fisa/">Cross posted to the Just Security</a>.</em></p> </p> Fri, 27 Mar 2020 17:46:49 -0400 Julian Sanchez https://www.cato.org/blog/dissecting-fisa-compromise-bill Return of the Gatekeepers: Section 230 and the Future of Online Speech — Panel 2: Bias in the Valley: Do Allegation of Political Censorship Justify 230 Reform? https://www.cato.org/multimedia/events/return-gatekeepers-section-230-future-online-speech-panel-2-bias-valley-do Adam Candeub, Eric Goldman, Craig Parshall, Ashkhen Kazaryan, Julian Sanchez <p>In the past few years, debates about free speech online have become a&nbsp;staple of Washington policy discussions. Concerns over harassment, alleged political bias in Silicon Valley, the spread of extremist content on social media, and the influence of Big Tech on the integrity of elections have prompted a&nbsp;variety of policy proposals and legislation. Meanwhile, social media companies have responded by creating institutions to moderate content on their platforms. The future of online speech governance may lie in California, not DC.</p> Tue, 10 Mar 2020 11:21:52 -0400 Adam Candeub, Eric Goldman, Craig Parshall, Ashkhen Kazaryan, Julian Sanchez https://www.cato.org/multimedia/events/return-gatekeepers-section-230-future-online-speech-panel-2-bias-valley-do A White House Intelligence Problem https://www.cato.org/multimedia/cato-daily-podcast/white-house-intelligence-problem Julian Sanchez, Caleb O. Brown <p>The ongoing uncertainty over who will fill a&nbsp;high‐​level White House intelligence position illustrates a&nbsp;larger problem with how the chief executive handles inconvenient information. Julian Sanchez comments.</p> Fri, 28 Feb 2020 16:57:33 -0500 Julian Sanchez, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/white-house-intelligence-problem Julian Sanchez discusses FISA on FBN’s Kennedy https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fisa-fbns-kennedy Thu, 27 Feb 2020 09:16:21 -0500 Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fisa-fbns-kennedy Julian Sanchez discusses privacy concerns surrounding the FBI’s attempt to unlock 2 I‐​Phones after the Pensacola Naval Base shooting on NPR’s 1A https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-privacy-concerns-surrounding-fbis Thu, 16 Jan 2020 13:08:24 -0500 Julian Sanchez https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-privacy-concerns-surrounding-fbis Julian Sanchez participates in the event, “Reforming the FISA Process: Proposals for the Future,” at the NYU School of Law https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-participates-event-reforming-fisa-process-proposals Thu, 16 Jan 2020 11:04:42 -0500 Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-participates-event-reforming-fisa-process-proposals Fixing FISA after the Carter Page Report https://www.cato.org/publications/commentary/fixing-fisa-after-carter-page-report Julian Sanchez <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>At a&nbsp;Senate Judiciary Committee&nbsp;<a href="https://www.judiciary.senate.gov/meetings/examining-the-inspector-generals-report-on-alleged-abuses-of-the-foreign-intelligence-surveillance-act" target="_blank">hearing</a>&nbsp;held shortly after the release of his&nbsp;<a href="https://www.justice.gov/storage/120919-examination.pdf" target="_blank">scathinging report</a>&nbsp;on the FBI’s investigation of erstwhile Trump aide Carter Page, DOJ Inspector General Michael Horowitz had a&nbsp;telling&nbsp;<a href="https://www.c-span.org/video/?c4838176/user-clip-critical-question" target="_blank">exchange</a>&nbsp;with Sen. Marsha Blackburn (R‐​Tenn):</p> </div> , <blockquote class="blockquote"> <div> <p><strong>Blackburn:</strong>&nbsp;Let me ask you this, how often do you find mistakes in a&nbsp;FISA Application?</p> <p><strong>Horowitz:</strong>&nbsp;This is actually the first time my office has done a&nbsp;deep dive into a&nbsp;particular application. We’ve done higher level reviews on the FISA process and have found various issues at a&nbsp;higher level, but this is the first time we’ve been able to delve in this way.</p> <p><strong>Blackburn:</strong>&nbsp;It’s a&nbsp;fairly fairly unusual occurrence?</p> <p><strong>Horowtiz:</strong>&nbsp;Let me put it this way, I&nbsp;would hope so.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Presumably Blackburn had expected a&nbsp;rather different response: That the embarrassing catalog of omissions, errors, and misrepresentations that the IG’s office found in applications for FISA surveillance of Page were extraordinary and unprecedented—suggesting some special vendetta against the Trump campaign.&nbsp;Horowitz’s discomfiting, candid reply deserves to be unpacked, because it implies at least three important points worth bearing in mind.&nbsp;</p> <p>First, while surveillance of an advisor to a&nbsp;presidential campaign is certainly an unusual use of the Foreign Intelligence Surveillance Act, there is&nbsp;<em>no reason to suppose that Page’s case is some sort of extreme outlier</em>. On the contrary—as common sense would suggest and Horowitz’s report confirms—investigators were acutely aware that this was an enormously sensitive case certain to draw intense scrutiny. Thus the initial FISA application targeting Page, at least, was unusually detailed, and received additional layers of review before being submitted to the Foreign Intelligence Surveillance Court (FISC). It’s reasonable to infer, then, that many of the thousands of FISA applications filed each year have defects as bad or worse than those Horowitz identified here.</p> <p>Second, if we want an explanation for those errors, Horowitz’s answer suggests one more systemic than a&nbsp;cartoonish anti‐​Trump vendetta: Nobody is doing the kind of thorough investigation that would find and correct those problems. In a&nbsp;criminal investigation, the purpose of a&nbsp;so‐​called Title III wiretap order is to obtain evidence for a&nbsp;criminal prosecution. While the initial application is submitted in secret, defense attorneys will be entitled to discovery at trial, and have ample incentive to hunt for government missteps. What’s more, investigators know they need to keep track of potentially exculpatory information, which they’ll be obligated to turn over. Even in cases where no prosecution results, the target of a&nbsp;Title III wiretap has to be notified once the wiretap ends, and may take legal action. The purpose of FISA surveillance, by contrast, is gathering foreign intelligence, not collecting evidence for use in court: The vast, vast majority of FISA targets will never be prosecuted. Unlike a&nbsp;Title III, a&nbsp;FISA might be “successful” from the government’s perspective—because it yielded foreign intelligence information—without actually validating its initial premise that the target is a&nbsp;foreign agent. In short, while the FISA process looks superficially somewhat similar to its criminal counterpart on the front end, it lacks the adversarial mechanisms on the back end that constitute a&nbsp;critical part of the criminal process.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Third, we should be wary of the temptation to think about potential FISA reforms exclusively in terms of this case, and the findings of this one report. Not merely because we don’t yet know which of the problems identified by Horowitz are most pervasive—and thus most indicative of the need for a&nbsp;remedy at the policy level—but because Horowitz focused almost entirely on Title I&nbsp;of FISA, which most closely resembles the traditional warrant process, with judges making particularized probable cause determinations. An intelligence investigation in which a&nbsp;FISA order was sought assuredly made use of myriad other intelligence tools, most of which involve far&nbsp;<em>less</em>&nbsp;oversight: Business records orders (§215), pen registers to collect communications metadata (§214), and National Security Letters for certain categories of financial or telecommunications records. Horowitz says little about these, perhaps because these other tools had not been as central to the public controversy surrounding the Page investigation. But if corners are cut to the extent documented by Horowitz even in the case of Title I&nbsp;orders, the most rigorously scrutinized, we can hardly suppose everything’s copasetic with authorities that effectively operate on the honor system.</p> <p><strong>Title I&nbsp;FISA Orders</strong></p> <p>The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools, both to discover how pervasive the defects Horowitz identified are in other Title I&nbsp;FISA applications, and whether there are comparable problems with other surveillance authorities. As the Inspector General’s report demonstrates, there are serious issues that will not be identified by “higher level” reviews, such as the omission of information that would tend to undermine the government’s case. But such “deep dives” need not just serve as a&nbsp;guide for policymakers: They can also serve as a&nbsp;partial remedy, precisely by replicating (imperfectly) the mechanisms and incentives that serve as checks on criminal investigations.</p> <p>While, of course, it is not realistic to expect reviews this exhaustive for any significant percentage of FISA investigations, a&nbsp;deeper review of a&nbsp;representative sample of U.S. person FISA applications—not simply verification that facts asserted in the application have documentary support, but a&nbsp;review of the case file and correspondence for material omissions—may help to reproduce some of the incentives that exist on the criminal side. Case agents will be conscious of the possibility—the risk, if not the certainty—that they will be called to explain why some fact favorable to the target of surveillance was omitted from an application. Even if only a&nbsp;small fraction of FISA applications can be so reviewed, such a&nbsp;process would introduce an incentive to focus on potentially exculpatory information currently absent from FISA.</p> <p>On the front end, the role of existing FISC amici could be expanded to permit discretionary intervention in applications being submitted to the Court—not merely in cases in which the FISC itself seeks their perspective—at least in cases designated “special investigative matters” because of their potential implications for religious, political, or press freedoms. The current remit of the amici is to advise the Court in cases involving “novel or significant” legal interpretations or requiring technical expertise. But civil liberties interests need not be “novel” to require an advocate to make them sufficiently salient to a&nbsp;judge. The participation of amici would add a&nbsp;dimension not typically provided by existing internal oversight, which tends to be more focused on formalistic compliance than weighing competing equities and interests.</p> <p>Finally—and perhaps most importantly—the presumption that FISA surveillance will be permanently covert should be ended. Currently, the only FISA targets who normally become aware of surveillance are the small fraction the government ultimately chooses to prosecute for a&nbsp;crime—which is to say, those whose wiretaps did indeed produce strong evidence confirming the government’s suspicion that they were engaged in wrongdoing. A&nbsp;target whose surveillance proves to have been unjustified, perversely, has no remedy, because they will never learn of it. While there will doubtless be cases in which the protection of sources and methods precludes such notice—where publicizing even the identities of erroneous targets would feed too much vital information to genuine adversaries—this should no longer be the default. At the termination of FISA surveillance of a&nbsp;U.S. person, there should be a&nbsp;rebuttable presumption of notice parallel to that required by Title III surveillance, unless the government can demonstrate to the FISC that such notice would entail a&nbsp;concrete national security harm sufficiently grave to outweigh the target’s interests. (Here, too, FISC amici should have an opportunity to represent those interests.) As the Supreme Court wrote in&nbsp;<a href="https://supreme.justia.com/cases/federal/us/388/41/#60" target="_blank"><em>Berger v. New York</em></a>, the requirement that targets of a&nbsp;search be given notice absent exigent circumstances “would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized.” Indeed, notice is an important component of what makes a&nbsp;search “reasonable” in Fourth Amendment terms. It was the absence of notice that particularly sparked Lord Camden’s ire in the seminal English case of&nbsp;<a href="https://constitution.org/trials/entick/entick_v_carrington.htm" target="_blank"><em>Entick v. Carrington</em></a>:</p> </div> , <blockquote class="blockquote"> <div> <p>[The warrant] is executed by messengers with or without a&nbsp;constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messenger shall think fit, and without a&nbsp;witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.</p> <p>If this injury falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a&nbsp;bank bill he may do it with impunity, since there is no man capable of proving either the taker or the thing taken.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>While the facts of specific cases may justify delaying or waiving notice to a&nbsp;target, that justification should still need to be made on a&nbsp;case‐​by‐​case basis: It should not simply be categorically presumed that the government’s&nbsp;<em>ex ante</em>&nbsp;foreign intelligence purpose in seeking a&nbsp;wiretap automatically provides sufficient&nbsp;<em>ex post</em>&nbsp;grounds for leaving a&nbsp;target “destitute of remedy.”</p> <p><strong>Other Surveillance Authorities</strong></p> <p>While the Horowitz report says relatively little about other investigative tools deployed in the Page investigation, government acquisition of detailed financial and telecommunications metadata can&nbsp;<a href="https://www.pnas.org/content/early/2016/05/10/1508081113.full?sid=ddfe42c7-3c2c-4505-83f8-9081c29096e1" target="_blank">in many ways be as intrusive</a>&nbsp;as the collection of content. Yet multiple authorities—including the aforementioned §215, §214, and National Security Letters—permit such information to be obtained with little more than an assertion of “relevance to an investigation.” In the case of National Security Letters, judicial approval is not even required. The FBI could have used this panoply of tools to conduct incredibly revealing surveillance of Page without risking similar criticism, because they would not have needed to establish probable cause to believe he was acting as a&nbsp;foreign agent. It would be enough that the case agents regarded his activities as potentially relevant to their probe. That bar should be raised.</p> <p>Here, current law provides a&nbsp;straightforward mechanism for strengthening civil liberties protections while still allowing investigators enormous flexibility. FISA’s business records authority (§215) specifies that records are&nbsp;<em>presumptively</em>&nbsp;relevant to an intelligence investigation if they pertain to:</p> </div> , <blockquote class="blockquote"> <div> <p>(a) a&nbsp;foreign power or an agent of a&nbsp;foreign power</p> <p>(b) the activities of a&nbsp;suspected agent of a&nbsp;foreign power who is the subject of such an authorized investigation, or</p> <p>(c) an individual in contact with, or known to, an agent of a&nbsp;foreign power who is the subject of such authorized investigation.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>All three of the aforementioned authorities should be amended to require a&nbsp;showing that records are relevant to the investigation&nbsp;<em>and</em>&nbsp;fall into one of these three quite broad categories. This would help ensure both that the net of “relevance” is not cast so wide it encompasses individuals without a&nbsp;concrete link to a&nbsp;valid investigative target, and that peripheral associates of a&nbsp;target are not automatically or indiscriminately subject to invasive monitoring without some specific basis for believing their records are needed, beyond the mere fact of association with a&nbsp;target.</p> <p>In the case of National Security Records, the scope of telecommunications records obtainable should be restricted to “basic subscriber information”—such as name, address, length of service, and billing address—while more detailed “electronic communications transaction records” and “toll billing records” require use of an authority subject to judicial approval, such as §215. This should give investigators the necessary latitude—and enough initial information—to assess whether a&nbsp;court order should be sought without exposing a&nbsp;detailed roadmap of individuals’ digital activities before a&nbsp;judge is involved.</p> <p>In Page’s case, of course, these changes would not in themselves have made much difference, since the FBI had successfully persuaded the FISC that he was probably a&nbsp;foreign agent. But they might have limited the collateral damage to friends and associates whose finances, phone records, and online activity all became automatically available to the government as a&nbsp;result. While only Page himself was directly subject to full‐​content FISA surveillance, everyone in contact with him would have become “presumptively” subject to extensive metadata surveillance as a&nbsp;result of that association.</p> <p>In addition to being advisable in themselves, then, reforming these metadata authorities can be thought of as a&nbsp;backstop or supplement to FISA Title I&nbsp;reform. Even with the best imaginable procedures, the government will sometimes target people for surveillance improperly, or for longer than is justifiable. Narrowing the government’s power to acquire metadata ensures that such errors are at least not compounded by authorizing granular monitoring of their entire social universe.</p> </div> Wed, 15 Jan 2020 13:15:48 -0500 Julian Sanchez https://www.cato.org/publications/commentary/fixing-fisa-after-carter-page-report A Secretive Court’s Rebuke of the FBI over Foreign Intelligence Warrants https://www.cato.org/multimedia/cato-daily-podcast/secretive-courts-rebuke-fbi-over-foreign-intelligence-warrants Julian Sanchez, Caleb O. Brown <p>Julian Sanchez details some of the structural problems in the Foreign Intelligence Surveillance Court after a&nbsp;rare rebuke of the FBI’s mishandling of warrant applications.</p> Fri, 20 Dec 2019 03:00:00 -0500 Julian Sanchez, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/secretive-courts-rebuke-fbi-over-foreign-intelligence-warrants The Chilling Reality of Bias at the F.B.I. https://www.cato.org/publications/commentary/how-out-control-our-surveillance-state Julian Sanchez <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>The F.B.I.’s investigation of the former Trump campaign adviser Carter Page, we can now say with assurance, was a&nbsp;train wreck. In his&nbsp;<a href="https://www.justice.gov/storage/120919-examination.pdf" target="_blank">report</a>, Justice Department Inspector General Michael Horowitz cataloged a&nbsp;damning list of egregious errors, omissions or misrepresentations in filings to the secretive Foreign Intelligence Surveillance Court, which approved nearly a&nbsp;year’s worth of wiretaps on Mr. Page.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Many Republicans have taken this as proof that the investigation was hopelessly contaminated by anti‐​Trump political bias. That would be the optimistic scenario. Unfortunately, it’s probably much worse than that.</p> <p>If the F.B.I. botched its applications for Foreign Intelligence Surveillance Act warrants against Mr. Page because of political bias, after all, problems of the sort Mr. Horowitz identified are most likely unique to this case. The bureau obtains about 1,500 FISA warrants each year, and an overwhelming majority have no connection to domestic politics. The solution is also similarly simple: Toss out the bad apples who acted on political motives and add a&nbsp;few layers of safeguards for the tiny fraction of cases that are designated “sensitive investigative matters” because they do intersect with politics.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Americans deserve a&nbsp;stronger assurance than “hope” that their Fourth Amendment rights are being respected.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>That might be a&nbsp;reasonable response if we were confident the Page investigation represented an outlier or aberration. The chilling reality, however, is that we have no idea whether that’s the case.</p> <p>At a&nbsp;Senate Judiciary Committee hearing last week, Senator Marsha Blackburn, Republican of Tennessee, zeroed in on this point. When she&nbsp;<a href="https://www.c-span.org/video/?466593-1/justice-department-ig-horowitz-defends-report-highlights-fisa-problems" target="_blank">asked</a>&nbsp;Mr. Horowitz whether finding mistakes in a&nbsp;FISA application was “a fairly unusual occurrence,” he responded, “I would hope so.”</p> <p>Americans deserve a&nbsp;stronger assurance than “hope” that their Fourth Amendment rights are being respected. The sheer quantity of serious defects in the FISA applications targeting Mr. Page — which officials consistently told Mr. Horowitz received far more review than normal, because agents understood the applications would doubtless attract controversy and scrutiny — raises an obvious and disturbing question: If they’re this sloppy with a&nbsp;target involved in a&nbsp;presidential campaign, how bad is it in ordinary cases, which the public will never learn about and which are unlikely to ever be the topic of congressional hearings?</p> <p>We needn’t worry so much about that, of course, if the defects of the Page warrants were products of political animus against the Trump campaign. But the report provides very little reason to think that’s the case. The case for supposing bias is the culprit here leans heavily on the former F.B.I. agent Peter Strzok, now notorious for a&nbsp;voluminous history of text messages denigrating Mr. Trump and suggesting that he would not become president because “we will stop it.” But while Mr. Strzok played a&nbsp;supervisory role in the earliest stage of the Page investigation, it’s hard to tie him to the specific problems Mr. Horowitz identifies. As the report notes, Mr. Strzok “was not the primary or sole decision maker on any investigative step” and at one point opposed FISA monitoring of another Trump campaign staff member that case agents proposed. Moreover, the problems Mr. Horowitz documented in the initial FISA application filed under Mr. Strzok’s watch were significantly less serious than the outrageous omissions and misrepresentations to the court that occurred in the subsequent applications to renew the wiretap, after Mr. Strzok’s role in the investigation had ended.</p> <p>With one significant exception — an F.B.I. lawyer responsible for improperly altering an email related to the final renewal application — Mr. Horowitz didn’t find signs of Mr. Strzok’s intense animus among others who worked on the FISA warrants. The report notes that among the huge quantity of internal communications reviewed, the inspector general identified “a small number of text messages and instant messages” in which members of the investigation team “discussed political issues and candidates,” but that these “did not raise significant questions of potential bias or improper motivation.”</p> <p>If there’s an explanation for the errors Mr. Horowitz documents suggested by his reports, it’s not political bias. It’s confirmation bias.</p> <p>The F.B.I.’s interest in Mr. Page — and its suspicions that he might be a&nbsp;Russian intelligence asset — predated his involvement in presidential politics. He had reportedly been the target of a&nbsp;FISA warrant in 2014 and was the focus of yet another counterintelligence investigation opened in April 2016 by the F.B.I.’s notoriously Trump‐​friendly New York field office, months before the bureau started an inquiry into potential links between the Trump campaign and Russia’s election interference operation. When investigators got wind of Christopher Steele’s notorious&nbsp;<a href="https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html" target="_blank">dossier</a>, which made Mr. Page a&nbsp;pivotal figure in a “well‐​developed conspiracy of cooperation” between Mr. Trump and the Kremlin, it would have seemed like confirmation of what they already suspected.</p> <p>Having adopted this theory, investigators began to exhibit classic signs of confirmation bias, readily absorbing new information that fit the model they’d built, while overlooking or explaining away facts that didn’t fit. The worst misrepresentations to the court that Mr. Horowitz uncovered are sins of omission — new information the bureau obtained as the investigation progressed that should have led it to question previous representations it had made to the court.</p> <p>The many layers of review FISA applications go through — laid out in a&nbsp;set of rules known as the Woods Procedures — were ill equipped to detect this sort of problem, because the Woods Procedures focus on confirming that facts in the application match documents in the F.B.I.’s case file. But you can’t fact check a&nbsp;claim that doesn’t exist — which means the process is bad at detecting important information that has been left out. Officials who reviewed later applications also told Mr. Horowitz that they typically focused on the new information in each submission. That means assertions they’d made early on ended up effectively being taken for granted: Nobody was revisiting early assumptions to see whether they still held up in the face of new data.</p> <p>If this explains why the Page investigation went increasingly off the rails, it’s an explanation that has little to do with partisan politics at its heart. But that would mean there’s little reason to think the Page investigation is special in this respect. There’s an urgent need, then, for the inspector general to do more such “deep dives” and figure out just how pervasive the problem really is.</p> <p>Fortunately, the inspector general is already taking a&nbsp;first step in this direction, having begun a&nbsp;review that will “examine the F.B.I.’s compliance with the Woods Procedures in FISA applications that target U.S. persons.” But in itself, that’s not enough: While Mr. Horowitz found violations of the Woods Procedures in the Page case, they weren’t the most serious distortions. Those occurred precisely because the Woods Procedures aren’t well calibrated to catch material facts that get left out. To do that, you’d need to do the kind of intensive and comprehensive case‐​by‐​case review conducted in the Horowitz review, not just run Woods vetting a&nbsp;second time to see whether the results tally.</p> <p>Doing this sort of deep dive for a&nbsp;representative sample of FISA applications will, of course, be both expensive and extremely time consuming. But it’s well worth it to find out just how badly our surveillance state is broken.</p> </div> Wed, 18 Dec 2019 09:15:34 -0500 Julian Sanchez https://www.cato.org/publications/commentary/how-out-control-our-surveillance-state Diagnosing the FBI Failures in the Inspector General’s FISA Report https://www.cato.org/blog/diagnosing-fbi-failures-inspector-generals-fisa-report Julian Sanchez <p>Justice Department Inspector General Michael Horowitz’s <a href="https://www.justice.gov/storage/120919-examination.pdf">long‐​awaited report</a> on “Crossfire Hurricane”—the FBI’s investigation of potential links between Russian election interference and the Trump campaign—has finally been released.</p> <p>Like most news developments in our polarized age, the report is being spun in diametrically opposed ways by political partisans, as evidenced by the questions at <a href="https://www.judiciary.senate.gov/meetings/examining-the-inspector-generals-report-on-alleged-abuses-of-the-foreign-intelligence-surveillance-act">Wednesday’s Senate Judiciary Committee hearing on the report.</a>&nbsp;Both of these narratives, unfortunately, get it wrong in fundamental ways.</p> <p>For many Democrats and other Trump critics, the main takeaway from the Horowitz Report has been that, despite some “irregularities” or “missteps” by the FBI, the report doesn’t support Trump or his allies’ claims about a “Deep State Coup” that ginned up a&nbsp;phony investigation to damage the Trump administration. Former FBI Director James Comey even <a href="https://www.washingtonexaminer.com/news/smeared-the-fbi-james-comey-claims-vindication-and-calls-for-william-barr-reckoning">treated the report</a> as a&nbsp;vindication of the Bureau’s conduct during his tenure.</p> <p>For many Republicans, the fact that some of the officials involved in a&nbsp;grossly flawed investigation of former Trump advisor Carter Page also had strongly negative views of Trump is all that’s needed to validate the view that the myriad serious failures Horowitz documents show “political abuse” motivated by partisan bias and a&nbsp;desire to “get Trump” at any cost. Both of these reads, I&nbsp;think, fundamentally misunderstand the real problems Horowitz exposed.</p> <p>I’ve already done a&nbsp;lengthy analysis of the report’s central findings in a&nbsp;<a href="https://www.justsecurity.org/67691/the-crossfire-hurricane-reports-inconvenient-findings/">post over at Just Security</a>, which I&nbsp;won’t try to exhaustively&nbsp;replicate here, but here are the core problems with these two accounts.</p> <p>The “vindication” narrative makes this story—like every other story these days, it seems—essentially Trump‐​centric, so that the most important fact about the report is whether it agrees with or contradicts various outlandish things Trump has said.</p> <p>If that’s your primary concern, then that narrative is mostly correct within its myopic domain: The report does not bear out, and in crucial respects is at odds with, Trump’s conspiratorial account of the investigation as part of some elaborate coup plot.</p> <p>But <a href="https://www.nytimes.com/2019/12/11/us/politics/fisa-surveillance-fbi.html">as Charlie Savage rightly notes</a>, this focus sidelines and trivializes the central findings of the report seen on its own terms: An appalling, systematic series of failures by the FBI that led to intrusive surveillance of an American citizen for nearly a&nbsp;year, when it should have been amply been clear by the time the first of three renewal applications was submitted that the original grounds for that surveillance were profoundly flawed.</p> <p>The “political bias” narrative, though, ultimately makes an inverted version of the same error, insisting on seeing the facts Horowitz documents primarily (or exclusively) through the lens of partisan conflict: Pro‐​Trump, or anti‐​Trump? While it’s certainly possible that hostility to Trump played some role in misjudgments by individual officials, this doesn’t fit the facts on the whole well either.</p> <p>It may be part of the story, but it is unlikely to be the most important part.&nbsp;This&nbsp;misdiagnosis matters, because if you think the problems Horowitz identifies are the function of “a few bad actors” misusing the process for reasons specific to the politically sensitive nature of the investigation, then however egregious the problems documented in the report, they don’t add up to a&nbsp;case for systemic reform:</p> <p>You just need to fire (and maybe even prosecute) the specific bad actors, and perhaps add some more robust safeguards for the very tiny fraction of investigations that touch on domestic politics.&nbsp;</p> <p>Here, I&nbsp;think is a&nbsp;more accurate account of what the report shows us. In the summer of 2016, against the backdrop of an elaborate and multi‐​pronged campaign of election interference by the Russian government, the FBI gets (accurate) intelligence from an allied government, Australia’s, suggesting that a&nbsp;Russian cutout has approached at least one Trump campaign staffer with what sounds like an offer of assistance.</p> <p>They appropriately open a&nbsp;broad investigation into whether there are more extensive ties between the campaign and the Russian election operation. The probe quickly focuses on four campaign officials with links to Russia, among them foreign policy advisor Carter Page, who is already the subject of a&nbsp;counterintelligence investigation by the FBI’s New York field office, for reasons unrelated to the presidential campaign.</p> <p>FISA surveillance on two of the four is contemplated, but initially rejected for lack of more concrete evidence. Then investigators get wind of research by a&nbsp;former British intelligence officer suggesting Page is acting as a&nbsp;liaison between the campaign and the Russian government. This becomes the critical piece of additional evidence that justifies an initial FISA surveillance application filed in late October.</p> <p>Horowitz identifies some omissions and questionable characterizations in that initial filing, but none that seem fatal to that first application given the relatively low bar “probable cause” establishes in practice and the limited information available to investigators at the time.</p> <p>While it’s impossible to know for certain, I&nbsp;believe&nbsp;an initial application free of those defects would still have been approved by the FISC. <a href="https://www.justsecurity.org/59837/reports-carter-page-subject-fisa-warrant-2013-2014/">The Court had already authorized FISA surveillance of Page</a> for reasons unrelated to presidential politics a&nbsp;few years earlier, and former FBI General Counsel.&nbsp;James Baker, who&nbsp;had been working FISA cases since the 1990s, told Horowitz he believed a&nbsp;warrant could have been obtained even without any of Steele’s information.&nbsp;The most glaring problems, in short,&nbsp;come later.</p> <p>As Horowitz explains, several features of that first application that many observers have understandably found shocking are, by the permissive standards of FISA, not inherently considered “problems” at all—they are how FISA routinely operates.</p> <p>Most obviously, the application relied critically on a&nbsp;single source, and&nbsp;FBI’s assessment that the source was credible,&nbsp;notwithstanding facts would suggest a&nbsp;potential bias or agenda—Steele had been indirectly commissioned by Democrats to do opposition research on Trump—and even though the FBI had not yet attempted to independently corroborate Steele’s key claims.&nbsp;<br><br> But as Horowitz observes, these are not&nbsp;unusual features of a&nbsp;counterintelligence&nbsp;investigation. Intelligence sources—who may include foreign spies or even terrorists—often have agendas, ulterior motives,&nbsp;or axes to grind, and often provide information there is no easy way to directly check. As numerous officials told Horowitz, “the fact that the source information in the FISA application had not yet been corroborated was not unusual in the FISA context.”</p> <p>Such information is usable as long as the FISC is provided with necessary context and caveats. Thus,&nbsp;at&nbsp;the urging of DOJ attorneys, the application includes an acknowledgement that Steele has been commissioned to conduct opposition research by opponents of the unnamed political candidate Page had been advising.<br><br> The “opponents” are not specifically identified as the Democratic National Committee, but this doesn’t appear to have been known to investigators at the time, and the general practice in FISA applications is in any event to obfuscate the names of U.S. persons and groups that are not investigative targets. Trump is referenced only as “Candidate 1” and even the names news outlets in which published articles appeared are omitted.&nbsp;</p> <p>Similarly, Horowitz explains that nothing in the law or FBI policy requires independent corroboration of information presented in a&nbsp;FISA application. Since any such corroboration would itself have been included in the application, it would have been clear to the FISC&nbsp;that many of the FBI’s crucial assertions hung entirely on their confidence in Steele.</p> <p>It’s with the renewals that—again, at least by the permissive standards of FISA surveillance—the FBI’s lapses become truly egregious. During the 90&nbsp;day span of the initial order, the FBI obtains&nbsp;a&nbsp;lot of additional information.&nbsp;They identify and interview Steele’s “primary sub‐​source” and find that his account conflicts with Steele’s reporting in some respects.</p> <p>The source characterizes as gossip or rumor many of the claims Steele has reported without any such qualification. A&nbsp;formal source review finds that some of Steele’s former intelligence colleagues question his judgment, and that while Steele had provided some useful information for previous investigations, much of it was never independently confirmed.<br><br> Review of Page’s older electronic communications finds minimal contact with campaign chair Paul Manafort, though on Steele’s account Page is supposedly acting as an intermediary between Manafort and the Russian government.</p> <p>By January it should be clear that, at best, many critical claims at the heart of the initial FISA applications require context or qualification;&nbsp;others are simply wrong. None of this makes it into the subsequent renewal applications.</p> <p>Perhaps the most egregious misconduct occurs in the summer of 2017,&nbsp;when an FBI attorney working on the third and final renewal application alters an e‐​mail from a&nbsp;CIA colleague, inserting a&nbsp;false denial that Page had been a&nbsp;CIA source as late as 2013, and provided the agency with information about his contacts with Russian intelligence officers.</p> <p>The attorney had expressed dismay at the prospect of having to write a “terrible footnote” apprising the FISA Court that such a&nbsp;potentially salient fact was only at this late date being brought to their attention.&nbsp;</p> <p>By&nbsp;time of the final renewal in June, the FBI’s submissions to the FISC are not merely flawed; they are profoundly misleading, an&nbsp;outrageous dereliction of the Bureau’s duty of candor to the Court.&nbsp;Anyone who claims the Horowitz report as a&nbsp;vindication of the FBI is smoking something.</p> <p>So what happened? The most conspiratorial version of the “political bias” explanation—the&nbsp;notion that the FBI’s failures represented a&nbsp;conscious plot against Trump—seems fairly easy to dismiss.</p> <p>Perhaps the most obvious problem with it&nbsp;is simply that&nbsp;there’s just no&nbsp;coherent story on which&nbsp;the protracted surveillance of a&nbsp;peripheral former aide—almost all of it occurring after the presidential election—makes sense as part&nbsp;of a&nbsp;strategy to undermine the new administration.</p> <p>Nor do the details fit this narrative well: The most serious defects in the renewal applications, for instance, are omissions by case agents that were unknown to the senior officials who reviewed them—a pattern inconsistent with the idea of a&nbsp;vendetta against Trump driven by the Obama‐​appointed&nbsp;leadership.&nbsp;</p> <p>Instead of dwelling on the countless ways the conspiracy version doesn’t add up, let’s consider the more plausible variant of a “political bias” explanation on which&nbsp;FBI and DOJ officials’ hostility to Trump distorted their judgment, making them too eager&nbsp;to believe the worst of him and his associates, and too willing to overlook facts that&nbsp;contradicted their worst case scenario.&nbsp;</p> <p>Again, this can’t be ruled out as at least a&nbsp;partial explanation, but there’s very little in the report that suggests it, and a&nbsp;fair amount that cuts against it.&nbsp;</p> <p>The case for supposing political animus was a&nbsp;major&nbsp;factor rests largely on the now‐​notorious text messages in which Peter Strzok, who played a&nbsp;supervisory role in the early phases of&nbsp;the Page investigation, excoriates Trump and expresses a&nbsp;desire to “stop” him.&nbsp;</p> <p>But by the time the most egregious omissions and misrepresentations occurred, Strzok was no longer part of the investigation’s chain of command, and even during the earlier phases, was not the one actually drafting FISA applications. Nor does the report depict him as determined to push the limits at any cost: He agreed with other attorneys, for example, that there were insufficient grounds to seek FISA monitoring of another campaign staffer, which the investigative team had proposed.&nbsp;</p> <p>In any event, as Horowitz explains, “Strzok was not the the primary or sole decision maker on any investigative step in Crossfire Hurricane,” and doesn’t seem to have been personally responsible for any of the individual problems Horowitz documents.&nbsp;<br>&nbsp;<br> Moreover, the initial Page FISA application, at least, was subject to scrutiny and review by an unusual number of attorneys. Strzok’s bias, in other words, cannot explain the actions of all the other case agents and attorney involved in preparing the application.</p> <p>Is there evidence that all of them—or at least enough of them—shared his attitude?&nbsp;Horowitz reviewed an enormous&nbsp;number of e‐​mails, texts, and instant messages sent by team members and&nbsp;found very little.&nbsp;</p> <p>The&nbsp;attorney in the general counsel’s office&nbsp;responsible for perhaps the most egregious violation Horowitz found—altering an e‐​mail to falsely say Page had not been a&nbsp;CIA source, which affected the final FISA renewal application—expressed extreme dismay at Trump’s election and identified himself with the “resistance.”&nbsp;</p> <p>Otherwise, however, while Horowitz notes that his office&nbsp;identified a “small number of text messages and instant messages…&nbsp;in which FBI employees involved in the Crossfire Hurricane investigation&nbsp;discussed political issues and candidates,” these “did not raise significant questions of potential bias or improper motivation.”&nbsp;</p> <p>It’s also worth noting that the counterintelligence investigation of Page was actually opened months&nbsp;<em>prior</em>&nbsp;to the launching of the Crossfire Hurricane probe, by <a href="https://washingtonmonthly.com/2018/12/10/how-rogue-agents-in-the-fbis-ny-field-office-helped-elect-trump/">the FBI’s notoriously Trump‐​friendly New York Field Office</a>, for reasons predating his involvement with the Trump campaign.</p> <p>One reason the investigation focused so intently on Page even before the Steele information was that agents in the New York office had suspicions about his interactions with Russian intelligence officers&nbsp;<em>before</em>&nbsp;he was publicly identified as Trump advisor.&nbsp;</p> <p>In sum, the <em>initial</em>&nbsp;interest in Page can’t have been motivated by political bias, because it predated Page’s role with the Trump campaign. And if we turn to the later omissions and misrepresentations to the FISA Court, only in one instance do we find&nbsp;evidence of strong political bias against Trump by the person most directly responsible.&nbsp;</p> <p>That seems insufficient to account for the broader pattern Horowitz found.&nbsp;While, again, it can’t be ruled out as a&nbsp;factor, it’s not an explanation that gets much support from Horowitz’s findings.</p> <p>Why does that matter?&nbsp;Because if there’s no reason to believe that the&nbsp;defects in the Carter Page FISA process were unique byproducts of anti‐​Trump bias by the officials involved, there’s also no reason to believe failures of this sort are limited to this investigation.</p> <p>Indeed, to the extent the Horowitz Report&nbsp;<em>does</em>&nbsp;suggest explanations, they point to more general features of FISA investigations.</p> <p>For instance, consider what officials involved in reviewing some of the later applications told Horowitz about why they failed to identify problems.&nbsp;At least one said that, in general, review of renewal applications was limited to&nbsp;<em>new</em>&nbsp;claims added since the last submission to the Court.&nbsp;</p> <p>Assertions from previous applications were, in other words, often copied and pasted without being revisited to determine whether they were still supported by the available information.&nbsp;</p> <p>Another reviewer explains that claims derived form source interviews were “checked” by searching for specific language included in the application to confirm a&nbsp;match—meaning reviewers would not be likely to notice when other portions of the interview contradicted claims in the application, or suggested a&nbsp;need for qualification.&nbsp;</p> <p>There are also indications in the report that the way agents thought about the justification of&nbsp;<em>continuing</em>&nbsp;FISA surveillance was disconnected from the initial showing to the court in a&nbsp;subtle but important way.&nbsp;</p> <p>In a&nbsp;criminal inquiry, the purpose of the investigation—obtaining evidence of a&nbsp;crime that can be prosecuted—aligns closely with the showing investigators must make to a&nbsp;court before obtaining a&nbsp;wiretap order: probable cause to believe the will obtain evidence of a&nbsp;crime.</p> <p>For a&nbsp;FISA order, however, the&nbsp;<em>purpose</em>&nbsp;of obtaining foreign intelligence information is much less tightly connected to the showing that must be made to the court: That the target is (knowingly, in the case of U.S. persons) acting as an agent of a&nbsp;foreign power.</p> <p>A FISA wiretap might well be regarded as “productive” or “successful” in the sense of yielding information that qualifies as useful foreign intelligence without in any way actually supporting the initial claim that the target is a&nbsp;foreign agent.&nbsp;</p> <p>After the initial approval, in other words, agents shift from thinking in terms of whether new information supports the original claim that the target is a&nbsp;foreign agent, and instead focus primarily on whether an intercept is producing foreign intelligence.&nbsp;</p> <p>The simplest explanation for what went wrong here, however, is probably also the most universal: Human beings are subject to confirmation bias. We form theories or beliefs, and then as we gather new information, we tend focus on the data points that support our original theory and ignore or explain away the data points that contradict it.</p> <p>That’s a&nbsp;primary reason we have warrants evaluated by independent magistrates in the first place: Investigators necessarily form hypotheses and then attempt to prove them, in the process becoming less able to assess whether they’ve done so successfully.</p> <p>Prosecutors in criminal cases, at least, have a&nbsp;countervailing incentive to think about exculpatory evidence: They know it will count against them if they’ve failed to identify it when their target’s defense attorney is given an opportunity to go over the record.&nbsp;But foreign&nbsp;intelligence surveillance isn’t&nbsp;<em>supposed</em>&nbsp;to yield criminal charges or trials in the vast majority of cases.</p> <p>Which means intelligence investigations lack the&nbsp;corresponding prospect of getting your knuckles rapped for failing to identify exculpatory evidence. Those are perfect circumstances for confirmation bias to run amok, and that fits what happened here.&nbsp;</p> <p>Most of the serious defects in the Page application aren’t instances of telling the court something clearly false, but of failing to identify and report information that doesn’t fit the affiant’s&nbsp;theory of the case.&nbsp;</p> <p>In one sense, a&nbsp;story where Horowitz’s disturbing catalog of failures, omissions, and misrepresentations can be attributed to “political bias” is comforting. Very few FISA applications involve major political campaigns, so if these problems arose from partisan animosity, we can suppose we would not find a&nbsp;similarly dismaying catalogue in other cases.</p> <p>If we&nbsp;<em>don’t</em>&nbsp;assume the problems here must be symptoms of political bias—and on the evidence here, it really would have to be nothing more than an assumption—there’s the obvious and disconcerting possibility that you’d find similar patterns in many cases if you began turning over rocks.</p> <p>Yet as Horowitz himself noted at the Senate Judiciary Committee’s hearing, this is in fact the first time his office has delved so deeply into the progress of a&nbsp;specific FISA order.</p> <p>In response to a&nbsp;question from Sen. Marsha Blackburn about whether such mistakes were an unusual occurrence, Horowitz had to admit that he simply didn’t know.&nbsp;Perhaps we ought to find out.&nbsp;</p> Fri, 13 Dec 2019 23:10:57 -0500 Julian Sanchez https://www.cato.org/blog/diagnosing-fbi-failures-inspector-generals-fisa-report Julian Sanchez discusses the IG report on FBI conduct in the Russia investigation on WIND AM 560’s Chicago’s Morning Answer https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-ig-report-fbi-conduct-russia Fri, 13 Dec 2019 10:53:15 -0500 Julian Sanchez https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-ig-report-fbi-conduct-russia Julian Sanchez discusses the FBI’s handling of the FISA warrants on FBN’s Kennedy https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fbis-handling-fisa-warrants-fbns-kennedy Wed, 11 Dec 2019 11:19:34 -0500 Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/julian-sanchez-discusses-fbis-handling-fisa-warrants-fbns-kennedy The Crossfire Hurricane Report’s Inconvenient Findings https://www.cato.org/publications/commentary/crossfire-hurricane-reports-inconvenient-findings Julian Sanchez <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Justice Department Inspector General Michael Horowitz’s&nbsp;<a href="https://www.justice.gov/storage/120919-examination.pdf" target="_blank">long‐​awaited report</a>&nbsp;on the FBI’s “Crossfire Hurricane” investigation is finally out, and notwithstanding furious efforts from all quarters to claim otherwise, it fails to neatly validate anyone’s favored political narrative. Contra the hopes of Donald Trump’s more ardent admirers, it fails to turn up anything resembling a&nbsp;Deep State cabal within the FBI plotting against the president, or deliberate abuse of surveillance authorities for political ends. Yet it also paints a&nbsp;bleak picture of the Bureau’s vaunted vetting process for warrant applications under the Foreign Intelligence Surveillance Act (FISA), documenting a&nbsp;host of material omissions or misrepresentations in the government’s case for wiretapping erstwhile Trump campaign advisor Carter Page, whose privacy was invaded for nearly a&nbsp;year on disturbingly thin grounds. Though it does not describe an investigation motivated by political bias, it is a&nbsp;textbook account of&nbsp;<a href="https://en.wikipedia.org/wiki/Confirmation_bias" target="_blank">confirmation bias</a>&nbsp;that should raise disturbing questions about the adequacy of the FISA process—and not just in this investigation.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The heart of the Horowitz report deals with the Carter Page FISA application, and documents a&nbsp;progression that ought to sound familiar to anyone who’s studied the history of the intelligence community: An investigation begins with a&nbsp;kernel of reasonable suspicion, and facts are marshaled to support a&nbsp;theory. As it gathers momentum, those initial suspicions congeal into assumptions. New information that fits the original theory is added to pile of evidence—while a&nbsp;growing body of contradictory of information is overlooked. It’s possible to read the Horowitz report and think that the initial 90‐​day wiretap of Page was justified, but far harder to rationalize intrusive surveillance that carried on for nearly a&nbsp;year, through three separate renewals, even as evidence mounted that should have undermined the basis for the warrant.</p> <p>As the report recounts, “Crossfire Hurricane”—the FBI’s codename for its probe of potential links between Russia’s election interference operation and the 2016 Trump presidential campaign—originated in the summer of 2016 with a&nbsp;<a href="https://www.nytimes.com/2017/12/30/us/politics/how-fbi-russia-investigation-began-george-papadopoulos.html" target="_blank">tip from the Australian government</a>&nbsp;(a “friendly foreign government” in the report): Trump campaign aide George Papadopoulos had been drunkenly repeating an&nbsp;<a href="https://www.nytimes.com/2019/07/24/us/politics/joseph-mifsud-mueller.html" target="_blank">academic acquaintance’s startling assertion</a>&nbsp;that the Russian government had thousands of potentially damaging e‐​mails related to Democratic candidate Hillary Clinton. The intelligence community was already seeing the outlines of an unprecedentedly brazen, multi‐​pronged effort to meddle in the presidential election benefit: Now here was an indication that the Trump campaign might be not just an unwitting beneficiary of Russian efforts, but a&nbsp;knowing participant. The FBI quickly focused on four individuals in Trump’s orbit with ties to Russia: Page, Papaodopolous, campaign chair Paul Manafort, and national security advisor Michael Flynn.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Though it does not describe an investigation motivated by political bias, it is a&nbsp;textbook account of confirmation bias that should raise disturbing questions about the adequacy of the FISA process—and not just in this investigation.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>While FISA surveillance of Page and Papadopoulos was apparently contemplated in August, Justice Department attorneys determined investigators lacked probable cause to establish that either was acting as an “agent of a&nbsp;foreign power,” the critical showing they’d need to make to the Foreign Intelligence Surveillance Court. That changed in September, when the FBI got wind of former British intelligence officer Christopher Steele’s research into Trump’s Russian ties—opposition research indirectly commissioned by the Democratic National Committee, and now notorious under the collective moniker “The Steele Dossier.” Steele’s reporting, gathered from a&nbsp;network of sources and sub‐​sources, purported that Page was a&nbsp;key figure in a “well developed conspiracy of cooperation” between the Trump Campaign and the Russian government. The FBI would lean heavily on Steele’s reporting in its petition to the FISA Court for a&nbsp;warrant authorizing electronic surveillance of Page.</p> <p>As the Horowitz report documents, even that&nbsp;<a href="https://assets.documentcloud.org/documents/4614708/Carter-Page-FISA-Application.pdf" target="_blank">first application</a>, submitted in October 2016, contained a&nbsp;series of notable omissions or misstatements, though whether they would have made a&nbsp;difference to the FISA Court’s assessment of the evidence is anyone’s guess. Among the most significant:</p> <ul> <li>The application failed to mention Page’s relationship with the CIA (“another government agency” in the report), which had designated him an “operational contact,” and the fact that Page had provided the Agency with information about his previous contacts with Russian intelligence officers—contacts that were part of the basis for suspecting Page had been recruited to act as an “agent of a&nbsp;foreign power.”</li> <li>It described Steele as a&nbsp;source whose previous reporting had been “corroborated and used in criminal proceedings,” which overstated Steele’s role in the Justice Department’s investigation of corruption in the international football league, FIFA. Though Steele had apparently provided information critical to launching the FBI’s FIFA investigation—leading to a&nbsp;raft of indictments and guilty pleas in 2015—Steele’s reporting had not actually been introduced as evidence in court. Since the Page application leaned heavily on Steele’s reporting, which it could not independently confirm, the precise characterization of his credibility as a&nbsp;source was important to informing the FISC’s assessment of how much weight to afford his claims.</li> <li>Both Page and Papadopolous had made statements to FBI informants denying various contacts alleged by Steele’s reports. Page had specifically denied taking part in a&nbsp;meeting with a&nbsp;pair of Russian oligarchs described by Steele, and claimed to have little contact with Manafort, though Steele’s account had Page acting as an intermediary between Manafort and the Russian government.</li> <li>In an interview with the FBI, Steele had characterized a&nbsp;particular individual—presumably&nbsp;<a href="https://www.washingtonpost.com/politics/sergei-millian-identified-as-an-unwitting-source-for-the-steele-dossier-sought-proximity-to-trumps-world-in-2016/2019/02/06/c7465a52-ec19-11e8-8679-934a2b33be52_story.html" target="_blank">Sergei Millian</a>, though he is not named in the report—as a “boaster” given to “embellishment”. Though FBI analysts had independently identified this individual as the likely source of key claims about Page in Steele’s reporting, this characterization was not included in the application.</li> <li>The FBI assessed that Steele had not directly provided information about his research to a&nbsp;reporter for&nbsp;<em>Yahoo News</em>—an assessment that would ultimately prove incorrect—but nothing in the case file provided a&nbsp;documentary basis for or explanation of that assessment.</li> </ul> <p>These omissions matter because FISA applications typically remain secret forever—indeed, the Page application is the&nbsp;<a href="https://int.nyt.com/data/documenthelper/1338-carter-page-fisa-documents-foi/844b27afa687de0dbee7/optimized/full.pdf" target="_blank">first to ever become public even in part</a>. That means not only does the FISA Court rely on the government to present it with a&nbsp;complete picture, including facts that might call the reliability of government sources into question (something that’s true of every wiretap application) but there’s typically little risk that an agent who submits a&nbsp;tendentious affidavit supported by cherry‐​picked evidence will have to defend their work in the harsh light of an adversarial proceeding, such as a&nbsp;criminal trial. If the government isn’t forthright about presenting evidence that cuts against a&nbsp;finding of “probable cause,” as well as the evidence for it, they’re unlikely to be held to account.</p> <p>It’s worth emphasizing, though, that the picture Horowitz paints remains fundamentally at odds with claims that FBI or DOJ leadership conspired to mislead the FISA Court, plotting to use surveillance of a&nbsp;peripheral campaign advisor as the lynchpin of some Rube Goldbergian scheme to undermine the Trump Administration. Each of these gaps represents information that lower‐​level case agents failed to recognize as material to the application—and in at least one case, an agent providing an erroneous response when a&nbsp;DOJ attorney asked for clarification about precisely when Page had been a&nbsp;source of information for CIA.</p> <p>What they do show, however, is that the much‐​ballyhooed&nbsp;<a href="https://fas.org/irp/agency/doj/fisa/woods.pdf" target="_blank">Woods Procedures</a>, designed to ensure that representations to the FISA Court match the information in the FBI’s case files, are no guarantee that the Court is getting a&nbsp;complete picture. Woods review will catch a&nbsp;claim that’s unsupported, but it won’t reliably ferret out information weakening the government’s case that’s not flagged as relevant by the agents working the case. (The report does identify a&nbsp;handful of facts that passed through Woods review without apparent documentary support, though the instances in the initial application, at least, are trivial.) One exception, perhaps ironically, concerns the charge that the FBI had deceived the court about the politically‐​motivated funders of Steele’s research: A&nbsp;lengthy footnote discussing just that was added to the application at the urging of DOJ attorneys, though in keeping with the general practice in FISA applications, specific American people and groups (such as “Donald Trump” or “the Democratic National Committee”) were not mentioned by name.</p> <p>It’s with the renewal applications, however, that the omissions start to get truly egregious:</p> <ul> <li>By January 2017, FBI had identified and independently interviewed Steele’s “primary sub‐​source,” the results of which should have provoked a&nbsp;serious reevaluation of the reliability of Steele’s reporting. The source gave accounts that conflicted with Steele’s reports in certain respects, or characterized information he’d passed on as little more than rumor and third‐​hand gossip. The renewal application did mention that FBI had spoken with the source, but didn’t draw attention to points of contradiction, or the source’s own skepticism about the information he’d passed on to Steele.</li> <li>An FBI attorney added a&nbsp;line to an e‐​mail from a&nbsp;CIA liaison saying that Page had not been a&nbsp;source, when the opposite was true.</li> <li>Though FBI had obtained evaluations of Steele’s reliability from former colleagues, some of which questioned his judgment, the renewal applications recapitulated the initial assessment of his credibility unaltered. Nor did they include a&nbsp;qualification from a&nbsp;formal FBI source validation report that, while Steele had provided some valuable information in the past, much of it had never been definitively corroborated.</li> <li>The renewal applications never corrected the initial assessment that Steele had not provided information to&nbsp;<em>Yahoo News</em>, though FBI officials had learned this was wrong before the final renewal.</li> <li>The renewals continued to include assertions that Page had played a&nbsp;role in modifying the GOP platform to weaken language committing to aid Ukraine against Russia, and made no mention of mounting evidence against Page’s involvement.</li> <li>Acquisition of Page’s older electronic communications revealed minimal contact with Manafort, but FBI failed to note this, or otherwise qualify its reliance on Steele’s characterization of Page as Manafort’s liaison to Russia.</li> </ul> <p>Horowitz also faults the Bureau for some omissions that seem less problematic: DOJ official Bruce Ohr had characterized Steele as “desperate” to prevent Trump’s election, which if Steele believed his own reporting seems entirely natural, not suggestive of preexisting bias. And though the Bureau did eventually learn the DNC was the ultimate source of funding for Steele’s research, it did not add this to its original footnote indicating a&nbsp;likely political motive for the assignment—a detail that seems both immaterial and redundant: Any judge with the minimal wit needed to identify the unnamed Candidate referenced in the application could presumably also deduce the identity of his political opponents if it mattered.</p> <p>Nevertheless, the gaps and inaccuracies in the renewal applications are clearly hugely more serious than those in the first. It is not hard to imagine the first warrant being granted even if FBI had included in its application all the information available to it at the time; it is almost impossible to believe the same of the last one. Yet it remains, if anything, still more incoherent to suppose that, in June 2017, the FBI was seeking to prolong increasingly fruitless surveillance of a&nbsp;former campaign advisor—surveillance long since known to the target—as part of an attempt to somehow harm Trump.</p> <p>Instead, the picture that emerges from the Horowitz is not so much sinister as banal: The government asked the court for “one more go” essentially out of inertia. Case agents weren’t motivated to think terribly hard about whether the most recent piece of information they’d uncovered contradicted a&nbsp;claim they’d made to the court months earlier. Higher level attorneys reviewing renewal applications focused almost exclusively on vetting the new information in each filing, never going back to reexamine earlier assertions and test whether they were still defensible. Verification meant checking the files to validate fresh data, but not to take a&nbsp;fresh look at early assumptions. After all, someone had checked that already, right?</p> <p>This picture is, in its own way, and for very different reasons, as disturbing as the image of a&nbsp;Deep State cabal with a&nbsp;vendetta against Trump: Vendettas are at least specific. Whereas the grave defects in the surveillance of Page seem more likely to be symptoms of a&nbsp;more apolitical, and therefore more systemic, form of bias. Their underlying causes—reliance on sources whose claims are hard to directly check, imperfect information, case agents making judgments about which facts in a&nbsp;vast sea of data might be legally material—aren’t peculiar to elections but endemic to intelligence.</p> <p>The investigators working Crossfire Hurricane well understood they were charged with a&nbsp;Sensitive Investigative Matter—one destined to draw a&nbsp;level of scrutiny unprecedented in the history of FISA. Under the circumstances, you might expect them to operate with especially scrupulous exactitude. If the Horowitz report reflects what we find when we start turning over rocks under those conditions, what kind of errors and omissions might we expect to uncover in the case files of FISA targets less likely to inspire congressional hearings? It’s past time to find out.</p> </div> Tue, 10 Dec 2019 09:19:35 -0500 Julian Sanchez https://www.cato.org/publications/commentary/crossfire-hurricane-reports-inconvenient-findings 2019 Cato Institute Surveillance Conference: Welcoming Remarks and Panel 1 — “Watching the Detectives: Improving Intelligence Oversight” https://www.cato.org/multimedia/events/2019-cato-institute-surveillance-conference-welcoming-remarks-panel-1-watching Julian Sanchez, Liz Hempowicz, Genevieve Lester, Daniel Schuman, David M. Barrett, Margo Schlanger <p>Not since the 1970s have intelligence activities — and intelligence oversight — been as central to America’s domestic political discourse as they are today. From presidential impeachment to election security, from explosive allegations of political wiretapping to debates over the regulation of social media platforms, U.S. spy agencies — as well as the myriad overseers tasked with checking their power — seem to play central roles in the most contentious issues of the day. The common thread is the tension always inherent to intelligence in a&nbsp;democratic society: the need to make necessarily secretive spy agencies accountable to the political branches of government but independent of politics. Yet even as intelligence agencies face unprecedented public scrutiny — and seek to meet unprecedented demands for transparency — the scale and complexity of their work has left many wondering whether meaningful control is possible.</p> <p>The 2019 Cato Institute Surveillance Conference will explore that question with a&nbsp;special focus on the people and institutions tasked with watching the watchers, including congressional committees, inspectors general, independent privacy boards, and courts.</p> Fri, 06 Dec 2019 14:31:31 -0500 Julian Sanchez, Liz Hempowicz, Genevieve Lester, Daniel Schuman, David M. Barrett, Margo Schlanger https://www.cato.org/multimedia/events/2019-cato-institute-surveillance-conference-welcoming-remarks-panel-1-watching 2019 Cato Institute Surveillance Conference panel, “Return of the Crypto Wars,” airs on C-SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-return-crypto-wars Fri, 06 Dec 2019 10:46:59 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-return-crypto-wars 2019 Cato Institute Surveillance Conference panel, “A Conversation with the Privacy and Civil Liberties Oversight Board,” airs on C-SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-conversation Fri, 06 Dec 2019 10:44:53 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-conversation 2019 Cato Institute Surveillance Conference Afternoon Flash Talks airs on C-SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-afternoon-flash-talks Fri, 06 Dec 2019 10:43:28 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-afternoon-flash-talks 2019 Cato Institute Surveillance Conference Morning Flash Talks airs on C-SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-morning-flash-talks-airs Fri, 06 Dec 2019 10:41:00 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-morning-flash-talks-airs 2019 Cato Institute Surveillance Conference panel,“Watching the Detectives: Improving Intelligence Oversight”, airs on C-SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panelwatching-detectives Fri, 06 Dec 2019 10:38:41 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panelwatching-detectives 2019 Cato Institute Surveillance Conference is promoted on C-SPAN https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-promoted-c-span Thu, 05 Dec 2019 10:37:02 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-promoted-c-span Trump’s Conspiracy Theory About ‘The Server’ Threatens Election Security https://www.cato.org/publications/commentary/trumps-conspiracy-theory-about-server-threatens-election-security Julian Sanchez <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Donald Trump is still searching for “The Server.” On Friday morning, the president phoned in to his favorite cable news program, “Fox &amp;&nbsp;Friends,” to make a&nbsp;series of false claims about the cyberattack on the Democratic National Committee’s computer systems perpetrated by Russian hackers, as part of their elaborate efforts to interfere with the 2016 presidential election. After the attack, claimed Trump, the DNC “gave the server to CrowdStrike, which is a&nbsp;company owned by a&nbsp;very wealthy Ukrainian. I&nbsp;still want to see that server. The FBI has never gotten that server. That’s a&nbsp;big part of this whole thing.”</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Every part of what Trump said was false — including the claim that the California‐​based cybersecurity firm CrowdStrike, hired by the DNC when it discovered the infiltration of its systems, is owned by a “wealthy Ukrainian.” But “the server” has been a&nbsp;long‐​running obsession of the president’s. He has referenced it repeatedly on Twitter, in media interviews, while standing onstage next to Russian President Vladimir Putin and, more recently, in his July 25 phone conversation with Ukrainian leader Volodymyr Zelensky.</p> <p>That refrain is troubling, most of all because it shows that Trump is fixated on a&nbsp;conspiracy theory that his own national security advisers have denounced as “<a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.reuters.com_article_us-2Dusa-2Dtrump-2Dimpeachment-2Dconspiracies-2Dex_the-2Dfictional-2Dnarratives-2Ddriving-2Dtrumps-2Dukraine-2Dpressure-2Dcampaign-2DidUSKBN1XV2B0&amp;d=DwMGaQ&amp;c=RAhzPLrCAq19eJdrcQiUVEwFYoMRqGDAXQ_puw5tYjg&amp;r=wS_UFddb9ofxwptgzWHTgKCCT667_Mq8K1T4PUhGhY8&amp;m=jnOB8Ic8dh0HeH0H3VpARghqiEBBipKh84NWZze_7Cw&amp;s=pJ3KbI8UxvWLuecqti913_Nvj0rqOfy2Bu3ujDfRBpw&amp;e=">completely debunked</a>.” These theories allege that there is a&nbsp;server that the DNC refused to turn over to the FBI, purportedly to conceal evidence that would disprove the intelligence community’s consensus that Russia was responsible for the hack. According to some versions of the theory, another country (perhaps Ukraine) was the true culprit; in others, the theft of thousands of DNC emails later published by WikiLeaks was an “inside job.” The unifying theme, however, is a&nbsp;desire to exonerate Russia of the crime.</p> <p>Trump’s obsession with the server suggests either that he is unwilling to seek reliable information from the government’s own intelligence and law enforcement agencies or that he disbelieves what they tell him, even on questions where there is no ambiguity or doubt. This goes well beyond healthy skepticism and into the realm of dangerous dysfunction: A&nbsp;president who refuses to accept intelligence assessments he prefers not to believe cannot make sound decisions, and over time this creates pressure to politicize intelligence — with agencies flattering the president’s preconceptions to remain relevant.</p> <p>Even Trump’s staunchest allies in Congress have been unwilling to follow their leader down this rabbit hole. In the course of House impeachment hearings, GOP legislators have sought to justify Trump’s desire to investigate putative “election interference” by Ukraine — citing such “interventions” as a&nbsp;2016 newspaper op‐​ed written by Ukraine’s ambassador to the United States that criticized some of Trump’s foreign policy statements. None were prepared to acknowledge, let alone justify, the actual investigation Trump had requested: an inquiry into CrowdStrike and the supposedly missing DNC email server. Yet as the testimony of E.U. Ambassador Gordon Sondland made clear last week, the references to CrowdStrike and the server were not limited to a&nbsp;single call. In the weeks after the exchange between the two leaders, Sondland testified that he had continued pressuring Ukrainian officials to publicly announce the probes Trump had demanded, one of which he repeatedly described as an investigation of “the DNC server.”</p> <p>Republicans’ reluctance to address this directly is unsurprising. When former National Security Council adviser Fiona Hill suggested in her testimony during Thursday’s hearings that some Republicans had accepted a “false narrative” exonerating Russia of election interference, those in the room reacted with uniform outrage, pointing to a&nbsp;bipartisan House Intelligence Committee report acknowledging Russian culpability. Though their umbrage was justified, none of them acknowledged that the president’s obsession with the server is inextricably bound up with the very “false narrative” they had angrily rejected.</p> <p>The server conspiracy theory is baseless for at least five reasons.</p> <p>First, the server <a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.thedailybeast.com_trumps-2Dmissing-2Ddnc-2Dserver-2Dis-2Dneither-2Dmissing-2Dnor-2Da-2Dserver&amp;d=DwMGaQ&amp;c=RAhzPLrCAq19eJdrcQiUVEwFYoMRqGDAXQ_puw5tYjg&amp;r=wS_UFddb9ofxwptgzWHTgKCCT667_Mq8K1T4PUhGhY8&amp;m=jnOB8Ic8dh0HeH0H3VpARghqiEBBipKh84NWZze_7Cw&amp;s=82zGy84fYKgq0C6PYJbS7V2oRYm2eKR4HELkKkb4lLg&amp;e=">doesn’t even exist</a>. The DNC relies on a&nbsp;cloud‐​based email system consisting of some 140 physical servers. And as Robert S. Mueller III’s report on Russian interference explained, the military unit behind the cyberattacks “compromised more than 30 computers on the DNC network,” as well as another 29 owned by the Democratic Congressional Campaign Committee.</p> <p>Second, it is not unusual that the FBI did not cart off the physical machines affected by Russian attack. As a&nbsp;rule, law enforcement does not seize the property of crime victims unless it’s necessary, and when it comes to digital evidence, it is often unnecessary. In this case, the company CrowdStrike provided the FBI with digital images of the hacked DNC computers. Asking why the FBI didn’t take the physical computers is like wondering why someone has emailed you a&nbsp;file rather than shipping you their entire laptop.</p> <p>Third, the information most useful to the FBI would be in the images created by CrowdStrike <em>during</em> their efforts to expel the foreign intruders. Examining the computers after the fact — after the dust had settled and the hackers’ malware had been removed — would have provided far fewer insights than observing them in action.</p> <p>Fourth, it is clear from both the Mueller report and the special counsel’s indictment of Russian officials charged with the hack that forensic evidence from DNC computers was a&nbsp;relatively small piece of the puzzle. The evidence of Russian responsibility for the hack is both overwhelming and derived from many sources: It is not based merely on analysis of the DNC’s servers.</p> <p>Fifth and finally, one element of the theory seemingly original to Trump is the odd and inexplicable notion that CrowdStrike is a&nbsp;Ukrainian company. The firm — which was not only hired by the DNC but also by the Republican Congressional Campaign Committee when its computer network was penetrated — is based in California. One of its co‐​founders was born in Russia, not Ukraine, but he moved to the United States as a&nbsp;teenager nearly 25&nbsp;years ago.</p> <p>As all of that makes clear, Trump’s conspiratorially minded ideas about the server aren’t just baseless or unfounded — they’re provably wrong. Indeed, his concerns are obviously and comically irrelevant to anyone who understands digital forensics. If Trump cared to ask, any one of hundreds of technical experts who work for the FBI or other government agencies could explain why the theory is nonsensical.</p> <p>Despite all of that, Trump has still gone to bizarre lengths to ascertain the effectively fictional server’s whereabouts. During his July 25 call with Zelensky, he asked the Ukrainian president to “find out what happened with this whole situation with Ukraine, they say CrowdStrike … The server, they say Ukraine has it.” That request was, in effect, a&nbsp;declaration that he so distrusts U.S. intelligence and law enforcement agencies that he would prefer to rely on Ukraine’s. Like his more explosively troubling request for an investigation of Biden, it was an attempt to get a&nbsp;foreign power to publicly validate and lend credibility to a&nbsp;politically useful conspiracy theory, which U.S. intelligence officials, and even his GOP allies, have refused to do.</p> <p>Perhaps even more concerning, the obsession with the server is a&nbsp;sign that Trump continues to reject the unanimous conclusion — again, not only of the U.S. intelligence community but of Republicans in Congress — that Russia was responsible for the DNC attacks. This does not bode well for efforts to secure our elections against another attack in 2020 — a&nbsp;topic Homeland Security officials have apparently been warned not to raise in Trump’s presence, lest it anger the president. Election security is a&nbsp;hard problem under the best of circumstances — and harder still when the boss refuses to acknowledge the problem exists.</p> </div> Mon, 25 Nov 2019 11:32:40 -0500 Julian Sanchez https://www.cato.org/publications/commentary/trumps-conspiracy-theory-about-server-threatens-election-security