The FCBA Privacy and Data Security Committee will hold a CLE on Thursday, September 26 from 6:00 – 8:15 p.m. on “The Foreign Intelligence Surveillance Act – What’s Working and What Needs Fixing?”  This CLE will feature insightful panels examining various legislative and policy reforms for FISA courts and FISA oversight, and FISA compliance requirements. This program will be held at Drinker Biddle & Reath LLP, 1500 K Street, NW.

In August 2013, the Washington Post reported the results of a leaked May 2012 National Security Agency internal audit, which found over 2,700 incidents over a prior one-year period of unauthorized collection, storage, or distribution of legally protected communications of U.S. citizens.  According to the audit, these violations have reportedly increased from 2009 through 2011 and early 2012, despite a much larger NSA oversight and compliance staff.  Congressional investigative hearings are certain, and President Obama has ordered the formation of a surveillance review board to review U.S. Government surveillance programs and advise the President about possible reforms.

This CLE program will be presented in two parts:  The first panel will examine the FISA statute, the FISA Amendments Act of 2008, their policy underpinnings, the scope of NSA’s legal authority to conduct surveillance to obtain foreign intelligence, the powers of the FISA court, and legislative efforts to reform the FISA statute.  Among the questions that will be raised include: Is the NSA’s authority broader than it needs to be to conduct foreign surveillance in the interest of national security?  Are the regular audits to be conducted by the Department of Justice and the Director of National Intelligence effective checks?  Are violations of FISC surveillance orders being reported to the court?  Is there adequate oversight in the process as currently structured?  What has been Congress’ response?

The second panel will discuss FISC surveillance orders for call detail records, stored email metadata, and other communications and how these orders are enforced and responded to in practice.  What constitutes foreign communications?  Does current technology enable “clean” interception of all foreign communications without intercepting some purely domestic communications?  What should be the scope of carrier/ISP intercepts, and how much data should be provided in response to FISC orders?  What has been the impact of carrier security agreements?  The panel will examine how carriers and ISPs have been responding to FISC orders.

AGENDA

6:00 – 6:05 p.m.         Welcome and Introduction

6:05 – 7:05 p.m.         The FISA Statute
What surveillance powers does the NSA have and is its authority too broad?  Does the statute create adequate oversight of the NSA’s surveillance activities? Are privacy rights of U.S. citizens being adequately protected? What possible reforms will Congress consider?

Moderator:
David Valdez, Federal Communications Commission; Co-Chair, FCBA Privacy and Data Security Committee

Speakers:
Sam Simon, Legislative Staff, Office of U.S. Senator Richard Blumenthal (CT)
Michelle Richardson, Legislative Counsel, American Civil Liberties Union
Harriet Pearson, Partner, Hogan Lovells US LLP

7:05 – 7:15 p.m.         Break

7:15 – 8:15 p.m.         Responding to FISC surveillance orders
What information should be requested and what should be provided? What are the practical and technological limitations with compliance? What impact do carrier security agreements have?  What have carriers and ISPs been doing?

Moderator:
Douglas G. Bonner, Partner, Drinker Biddle & Reath, LLP; Co-Chair, FCBA Privacy and Data Security Committee

Speakers:
Marc Zwillinger, Founder and Managing Member, ZwillGen, PLLC
Alan Butler, Appellate Advocacy Counsel, Domestic Surveillance Project, Electronic Privacy Information Center