Monday, May 5, 6:00 – 8:15 p.m.
NSA Telephonic and Electronic Surveillance: The Executive, Legislative and Judicial Drivers of Reform and Likely Outcomes
The FCBA Privacy and Data Security Committee will hold a rescheduled CLE on Monday, May 5 from 6:00 – 8:15 p.m. entitled “NSA Telephonic and Electronic Surveillance: The Executive, Legislative and Judicial Drivers of Reform and Likely Outcomes.” This program will be held at Drinker Biddle & Reath LLP, 1500 K Street, NW, Conference Room 2B.
On January 17, 2014, under pressure from domestic and foreign critics, including German Chancellor Angela Merkel, President Obama has announced structural reforms to the surveillance activities of the NSA, including storage and retention of telephone records data, and introduction of a new adversary process to FISA court decisionmaking. The President’s speech presaged the Privacy and Civil Liberties Oversight Board’s (“PCLOB”) Jan. 23, 2014 report concluding that the Section 215 bulk medadata collection program is unlawful. Since then, Congress has also introduced new legislation to reform the bulk metadata collection program and NSA authority to conduct surveillance of “foreign communications” under the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act. In the meantime, the U.S. District Court for the District of Columbia has held the NSA’s metadata collection program unconstitutional which the U.S. Government has appealed to the DC Circuit. This CLE will examine judicial review of constitutionality of the NSA metadata collection program, and possible outcomes of the appeal process, pending Obama Administration/congressional reforms, and the likely short term and longer term scenarios for reform due to these various pressures on existing surveillance programs. This CLE will also examine how private industry, including carriers and ISPs, privacy advocates and the national security community have been responding to these potential reforms.
AGENDA
6:00 – 6:05 p.m. Welcome and Introduction
6:05 – 7:05 p.m. The Klayman v. Obama Injunction Order, President Obama’s January, 2014 NSA Reform speech and the Privacy and Civil Liberties Oversight Board’s (“PCLOB”) Jan. 23, 2014 Report
What is the current legal status of Section 215 of the Patriot Act and NSA bulk telephone data collection? Will reforms be driven by the courts, executive reform or by congressional legislation? What reforms to NSA Section 215 data collection and the FISA process are likely to follow from President Obama’s January 17 speech and to the PCLOB report? What does the latest congressional legislation provide, and where do the Administration’s and Congress’ proposed reforms coincide? Where do they diverge?
Moderator:
David Valdez, Federal Communications Commission and Co-Chair, FCBA Privacy and Data Security Committee
Speakers:
Allan Friedman, Visiting Scholar, Cyber Security Policy and Research Institute, George Washington University
Amie Stepanovich, Senior Policy Counsel, Access (former Director of the Domestic Surveillance Project at the Electronic Privacy Information Center)
Kevin S. Bankston, Policy Director, Open Technology Institute, New America Foundation
7:05 – 7:15 p.m. Break
7:15 – 8:15 p.m. Obama Administration and Congressional Reform Initiatives of Domestic and Foreign Surveillance – What are the Concerns of Interested Parties and How are they Responding?
How are carriers, ISPs and privacy advocates responding, publicly or privately? What are the various interests that carriers and ISPs must take into account in staking out positions with the U.S. Government on law enforcement access to telephone and Internet data? What is the position of the national security community on substantive reforms of FISA and specifically the bulk metadata collection program? Has it evolved? Will enhanced privacy protection mean a diminution of national security protection? Predictions: What reforms are likely in the near term?
Douglas G. Bonner, Partner, Drinker Biddle & Reath LLP and Co-Chair, FCBA Privacy and Data Security Committee
Stewart A. Baker, Partner, Steptoe & Johnson LLP
Marc J. Zwillinger, Founding Partner, ZwillGen PLLC
