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tv   FBI General Counsel Dana Boentes Remarks on National Security Law  CSPAN  November 7, 2019 4:34pm-5:08pm EST

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on c-span two. networksthe c-span live next week as the house intelligence committee host the first public impeachment hearings. the committee is led by chairman will start and it wednesday at 10:00 eastern on c-span3. william taylor and deputy assistant secretary of state testified. will on friday on c-span2, former u.s. ambassador to ukraine will appear before the committee. follow the impeachment inquiry live on the c-span networks or listen live with the free c-span radio app. next scum of the fbi's general counsel talks about national security legal issues. this event was held at the american bar association earlier today.
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thank you for the kind introduction. it is wonderful to see some many friends here. some i have not seen in a year or two it seems. backgroundre on my than what harvey said and i want lawecall it for the students are younger attorneys here because it is kind of integral to my life in public service. in 1982, i am sure we have people that were not born that, i was a law clerk. it is wonderful to be a law clerk but you also have to immediately start looking for your next job which i was. and i had a background in finance and i am a cpa so i thought i would be a perfect commercial litigator. or so i thought. i was interviewing with the chicago law firms. myself further, the
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largest law firms had about 230 partners in the chicago area to show you how things have changed. but i needed litigation experience i thought and so i applied for the attorney general's honors program. behold, they want a four year commitment. when you are 27 years old, four years seems like a lifetime. and i very much wrong my hands -- wrung my hands over the decision to give four years of my life to public service. approximately am 36 years later. but i guess what i want to say by veryit has gone quickly. i have enjoyed it immensely and would not have traded it for any other opportunities in the world professionally. showing you how little i know. which leads me to a public at
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service announce that is a public service announcement which is the office of the attorney general at the fbi. we have 100 94 attorneys and three branches, litigation, national security, cyber law, and the investigative administrative law branch. with a large number of issues, just like any corporation would. we have 37,000 employees and 18,000 contractors. we normally have about 15 vacancies. there is a rigorous process, a polygraph and a background check. it cannot be that hard because i passed it. but we are always looking for smart, ambitious attorneys looking for an exciting career and you will not find a better mission at any company or institution in the united states protecting the american people and upholding the constitution of the united states.
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our employees every day when they walk into the hoover building. the fbi has been in the news on occasion lately. topics i willsome will tryscuss and i not to run out the clock so harvey will not have to give me the hook sign. thei want to talk about recent opinion concerning our core procedures. and cyber ifom act we have a test to get that far into my remarks. the recent court opinions on fbi -- theg procedures judge, who i think you will hear from tomorrow, so he will get rebuttal time, found the revised procedures that we submitted were not appropriate. the querying procedures were
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inconsistent with the requirements to keep records of and u.s. person query term it was inadequate in our query justifications. and they were inconsistent with section 702 e and the fourth amendment. the procedure is which now have been approved by the court rate -- we will retain querying -- withes in a manner written justification before the employee reviews the contact with -- retrieved by the query. we are in the process of making technical changes to the system and the training that we provide to our agents. but i would like to talk a little bit about some things involving our query procedures and the opinions. after the judge issued his
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opinion, the director ordered the creation of a compliance review team to review the howe's opinion and evaluate we can improve our querying procedures. the fbi takes this very seriously, its responsibilities and we took this as a proactive step several from our decision to appeal. because of our commitment to compliance. frequently says, and i have heard him say it dozens of times, we need to do the right thing, the right way and that was all in his efforts to do that. we believe it is important for the fisk, congress, and the american public to have confidence in our procedures and our compliance rate. the judge has
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approved the modified procedures with new requirements which means we are now consistent with the fourth amendment and pfizer. the compliance team will continue its work and evaluate whether additional steps beyond our new compliance can lead us to address further concerns. opinion discussed the fbi's policy on queries because it is routine in -- and and encouraged practice for the bureau to query the section 702 collection in furthering law and gathering procedures. routinely query the collection in order to proactively identify thread information and the collection and the need for the personnel to comply the query standard. but, most of the compliance
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incidents cited in the opinion involved efforts by the bureau to be proactive and identify thread information that we were holding in our collection. some of those compliance incidents involved what we would call threat identification queries where fbi personnel attempted to proactively identify threats the bureau was unaware of. one of the compliance incidents queries of identifiers associated with individuals in a position to exploit what the bureau believed was a boulder ability. other incidents involved proactively vetting specific individuals in order to threats posed by disclosing classified or sensitive information to them. involvedidents potential confidential sources.
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it is important to remember that policies of encouraging queries of our collection is born out of lessons learned from 9/11 and the four could attack. -- fort hood attack. the commissions both talked about the importance of identifying thread information in the fbi systems and encouraged the bureau to develop a federated search capability to facilitate the identification of threat information queries. historically, the view has been that the more cure -- queries the bureau runs, the greater the likelihood it will identify threat information. but, we recognize the importance that every one of those queries has to be consistent with our procedures. the fbi has to strive to stay within the middle ground where we are aggressively looking for threats to the american public
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in our 702 collection without violating the query standard. if we are not aggressive enough, the american public is at risk. if we are too aggressive, we will have compliance incidents thea road -- and erode confidence we have from the fisk , congress, and the american public and that is why the middle ground is so important and we are committed to staying within it. the compliance review team will continue to carefully consider the fisk concerns about our query policy while being mindful that to change the policy could potentially impact our ability to identify thread information. the fisk also identified what it complicationsed and applying the query standard and suggested bureau personnel may not necessarily understand
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the retrieve standard. a query has to be likely to return information of a crime or foreign intelligence information. intensive which means the application of the standard can be challenging and reasonable minds can disagree. the most obvious way to address that concern is through additional training which has been one of our focuses for quite some time. for more than a year, the department of justice and fbi attorneys have been given in person -- giving in person training on the standard. the fbi also rolled out new mandatory training that will focus on the query standard. that training is designed to enhance personnel's understanding of the query and enable them to differentiate. the team will continue to evaluate if additional apps are
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needed after december. a couple of words about the usa freedom act. december which i assume most people know and it has three primary authorities as concerns the fbi. section 215 business records, wolfg wiretaps, the lone provision which applies to non-us persons and international terrorism with no requirement to show a connection to a foreign government. i will go in more detail. as i said, they are all expiring in the tools are critical to what we have available for our national security investigations. the bureau has a solid years long record of successfully using both the business records provision and the roving wiretap provision.
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tose provisions are integral our investigations. they provide the building blocks, in many cases, and the ability to keep pace with the threat and to avoid missing critical intelligence. provisionss records deals primarily with transactional events. that is electronic communications, transactional records suchness as hotel receipts, storage facility receipts and supply records. these types of records are collected in virtually every single criminal case. request business record our court -- are quite reviewed and in all cases, the fisk must find reasonable grounds that the records are relevant to an authorized investigation. , thesest every respect
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requests are similar to a grand jury subpoena that does not undergo court supervision. likewise, the roving wiretaps are subject to court approval and supervision. the fbi has to show a specific target of a fisa investigation ordered engaged actively in activity that is wording -- thwarting our surveillance. if the f the eye -- is the fbi even ifch a showing -- you take steps to avoid that surveillance such as burner phones. again, the roving authority is substantially the same as that used in a title iii wiretap. wolf provision, as i indicated, is very narrow. its limited applicability
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does not diminish its possibility. it can be used in the surveillance only of non-us persons. it allows the bureau to obtain a fisa order targeting a non-us person engaging in international terrorism or the preparation thereof even if the bureau cannot show the target is doing that on behalf of a foreign power. and that is a real advantage for us. radicalizationt is on the rise and we are seeing more and more homegrown act errors. can be inspired to act on behalf of a foreign power such as a terrorist group. but, rather than being directed to do so, and this increases the likelihood that the fbi will wolfto be live on the lone provision. i would like to move to cyber a little bit.
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me whatrequently ask has changed in the practice of law in the 37 years i have been a lawyer. and it has always been a very easy answer for me. isre are two things -- one digital evidence and just the digital footprint that affects us all instead of a one-time talking about evidence with a number of boxes. now, we talk about gigabytes and terabyte. -- terabytes. partther aspect which is of your program is the international affect. back in the mid-1980's, when we m-lab that was a big deal. it seems almost every investigation whether national security or otherwise involves some type of acquisition of foreign evidence.
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>> [indiscernible] it is a mutual legal assistance treaty which is in my view a somewhat cumbersome process that allows us to receive evidence from a foreign nation. and it takes a great deal of time and in fact, it is part of what was the of a test for the cloud act which we are hoping and the devil is always in the details, that if we can move forward with the cloud act, it may solve some of those problems and make the acquisition of foreign evidence easier which is our hope. cyber and encryption challenges. , the challenge of cyber and technology are enabling criminals and foreign adversaries. .here are new venues of attacks
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greater attacks surface. from any location near or far from our target. a low-cost barrier to entry. it is easier to mask or hide the attribution. and the tools are cheaply and widely available. there are cyber mercenaries that will hack for hire. this affects everyone even those who may never own a computer or a cell phone. because the attacks are on the power grid, critical infrastructure, on third-party protection of pii, the opm is an example. financialords and records. all of this occurs against a background that has many tools for cybersecurity. the technical tools of ,ncryption, antivirus, firewall multifactor a benefit haitian,
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-- multifactor authentication, the legal restrictions of nda sanctions, supply chain requirements, regulations and contractual agreement. policy and process. social media. and the terms of use policy. incidence response plans. identity authentication. dual approval requirements. and restricted access. the training that all of us do each and every year in all of our entities, information sharing that we have on base that's. but, a lot of focus today is on the issue of legal access. attorneyl go some of -- and i will a echo william barr's statements.
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provides privacy and cybersecurity benefits. communications, networks, data storage, online transactions, protects personal information. enablesryption also terrorists, criminals, and foreign adversaries. it allows the sexual exploitation and abusing of children. to commite conspiring crimes or planned terrorist attacks, recruiting, stealing intellectual property, and undermining our democratic values and institutions. encryption leaves surface -- service providers unable to provide content in response to lawful court ordered requests
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based on probable cause. i will repeat that -- they cannot respond to court orders for readable content. it impacts communications in transit or stored in electronic data. it degrades the ability to detect and prevent, to arrest and prosecute. a law free zone for criminal behavior. said, attorney general taking our virtual world more secure, no one argues with that but making our virtual word and dutch world more secure cannot come at the expense of making us more vulnerable to the real world. a week goes by that the fbi does not -- is not confronted with an investigation impacted by the issue of encryption. concerns.are real real problems. the state and local law
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enforcement authorities are hurt worse because they have fewer resources and tools to address this. these problems -- mexican cartels that use whatsapp to coordinate their drug shipments and the murder of police officers. attacks in the 2015 garland, texas where two islamic extremist carried out and isis claimed attack. one terrorist exchanged 100 instant messages with an overseas terrorist using an end to end encrypted app. gun violence. church shooting in southern springs, texas where a government killed 26 people -- where a gunman killed 26 people.
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even with more advanced commercial tools, 600 plus days later, the fbi still is not able access thee code to phone. it still could take years. gang activities and murders. they use encrypted apps to greenlight assassinations. this is not a theoretical problem. there is positive engagement we have to have to improve public safety. with access to such communication and with the cooperation of partnerships with communication services and their platforms, we have achieved great success. eight -- general attorney and others wrote a letter to the ceo of facebook.
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more than 90% of the 18.4 million total reports that year. facebook acted against 27 million pieces of terrorist content between october 2017 and march 2019. more than 99% of the content facebook took action against both for child sexual exploitation and terrorism was identified by its system rather than users of reports. however, if facebook implements this end to end encryption as expects to lose a great deal of reporting. is the way forward? some suggested that the government can use metadata.
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i can to you from personal experience as an investigator and a prosecutor that metadata doesnot equal the content, not equal the value of content. some suggest that we could use artificial intelligence to increasingly advance our use of metadata. that simply oversimplifies the problem and really, it does not address the problem. sameata cannot provide the type or depths of intelligence that content can. no one in law enforcement believes metadata can replace content. metrics, quite frankly, do not speak for themselves. there is no barometer that can measure the value of cybersecurity against the value of preventing child abuse, mass shootings, and terrorist attacks. legislation, we look to
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the technology providers to help provide public safety and access to information needed in criminal and national security investigations. has the technology skill and the ability to determine how best to design products to allow for lawful access when needed. barr said, general welcome to civil society. we regularly expect and often mandy if necessary that our companies take steps to ensure that their products and services do not impose negative externalities on the public interest. the department of defense does implements is requirements for cybersecurity standard on all of its contractors. the nist standards supply cybersecurity goals.
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they do not describe the tools or process. on its own designed approach to the environment. be an analysis of the relative cost and benefit to society. it is not reasonable to incur massive further cost to move slightly closer to a perfect cybersecurity optimality at the cost of a massive degrading of public safety. frombi has started to hear crypto experts and there are solutions that can account for strong cybersecurity and the need for lawful access. ability inve owner products even with encryption. the residual risk of vulnerability resulting from incorporating a lawful access mechanism has not been shown to be materially greater than those that are already in an
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unmodified product. and i am just on time at 12:44. hope you enjoy the rest of your conference because i did not get to a couple of things. particularly, i mentioned economic espionage and maligned for an influence on election. two issues we are dealing with every day at the bureau as are our friends in the intelligence community. our colleagues there. thank you. [applause] >> we are not going to take questions because we have to clear the tables. you may stay in place. presentation will take place at 1:00. unless you want to take some questions. mr. boente: i would be happy to take a question. i may not answer it but would be
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happy to take them. [laughter] >> any questions? glenn, you don't have a question? mr. boente: thank you, glenn. >> ok, one question in the back. can you make it assisting and to the point -- succinct and to the point? >> what about civil liability for companies that choose to market encrypted devices? if the encrypted device is found in connection with a criminal act or terrorist act that ipso facto there is a presumption it was used to facilitate the crime creating liability. and then companies can build that into the cost of the device. it is a legislative
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issue. as we stand right now, i don't think we have anything about that. i have not heard that actually as a proposal. it may be a legislative proposal although it strikes me that it would be very difficult the put the proper -- to put the proper guardrails on it. it would be interesting to see that as a proposal because we do not want someone -- we do not want to stifle commerce too much. and it strikes me that i guess i would have to see the details of it. but i am having a hard time imagining it right now. it not only gets you out of jail but it also gets you a free refreshment at the bar if you need. thank you, again. mr. boente: thank you for your
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attention. >> this afternoon at the white house, president trump will present the presidential citizens medal to several recipients at 6:00 p.m. here on c-span. a look at our prime time schedule on the c-span networks. starting at 8:00 eastern on c-span, remarks from mike pence event politics and eggs in new hampshire. and we hear a 2006 law that creates a revenue license. and on c-span3, it is american history tv with programs on past presidential impeachment proceedings. c-span's "washington journal" live every day with news and policy issues that impact you. coming up friday morning, the wilson's enters anke and what discusses efforts by the u.s. and mexico to battle mexican
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drug cartels. and then maurice mitchell talks about his political party roots and priorities and its recent endorsement of elizabeth warren. david mcintosh on his organizations strategy for campaign 2020 and its defense of president in the impeachment inquiry. watch c-span's "washington 7:00 join the discussion. , robert wilkie discusses oversight issues at his department and what is being done to ensure the care of u.s. veterans. he will be speaking at the national press club live at 1:00 eastern on c-span3. and c-span's campaign 2020 coverage continues with joe biden holding a campaign rally with voters and supporters in new hampshire. it also plans to file his candidacy paperwork at the statehouse in concord. that is at 1:00 p.m. eastern on
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c-span. and president trump will visit atlanta where he will launch his campaign's black voices for trump campaign. at 3:00 p.m. eastern on c-span. marks the 30th anniversary of the fall of the berlin wall, a symbol of the divide between the east and the west during the cold war. american history tv and c-span's washington journal is -- our live from the museum in washington, d.c. we begin with the head of georgetown university's head of the eurasian studies. and the author of "after the berlin wall." steve vogel who covered the follow the berlin wall for the washington post. and kerry kristofferson talks about their cold war exhibit. watch


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