PERSONAL PRIVACY , IMMIGRATION, IPHONE CONFIDENTIALITY VS. NATIONAL SECURITY… Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for June 10, 2016 Program Chair: Mark Rosen, Esq., Adjunct Professor, Brooklyn Law School; John Jay College of Criminal Justice Faculty: Joseph Bambara, In House Counsel and VP of Technology Architecture, UCNY, Inc., Co-Chair NYCLA's Law and Technology Committee; William Banks, Interim Dean, Professor of Law, Founding Director of the Institute for National Security and Counterterrorism (INSCT), Syracuse Law; Hon. Valerie E. Caproni, SDNY; John Cronan, Deputy Chief, Terrorism and International Narcotics Unit, U.S. Attorney's Office, SDNY;Constantinos Daskalakis, Associate Professor, EECS, MIT; Laura Donohue, Professor of Law, Georgetown Law; Josh Dratel, Law Offices of Joshua L. Dratel. P.C., Co-Chair of the Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, Chair of its National Security Committee, Co-Chair of its Select Committee on Military Tribunals;Seth DuCharme, Chief of the National Security & Cybercrime Section, U.S. Attorney’s Office, EDNY;Tina Foster, Law Firm of Tina Foster; Adam Goldman, Washington Post, covering terrorism and national security; Karen Greenberg, Director, Center for National Security, Fordham Law; Steven Hyman, Partner, McLaughlin & Stern; Joshua Horowitz, Esq., Tech Law NY; , Jameel Jaffer,Deputy Legal Director, ACLU and Director ACLU's Center for Democracy; Gene Policinski, COO Newseum Institute, VP, First Amendment Center; Matthew J. Miraglia, FBI Supervisory Soecial Agent; Hon. Loretta Preska, Chief Judge, SDNY: Harvey Rishikof, Sr. Counsel, Crowell & Moring, Privacy & Cybersecurity and Government Contracts Groups and Chair. ABA Advisory Standing Committee on Law and National Security; Roberto FE Soto, Executive Director, Imaginus; Patrick Toomey, Staff Attorney, ACLU National Security Project This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 8 Transitional and Non-Transitional credit hours; 6 Professional Practice/Law Practice Management; 2 Ethics. This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 8 hours of total CLE credits. Of these, 2 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey. N Y C L A C L E I N S T I T U T E Information Regarding CLE Credits and Certification Personal Privacy, Immigration, iPhone Confidentiality vs. National Security: Where Do We Stand on the Issues Today? June 10, 2016; 9:00 AM to 5:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! Personal Privacy, Immigration, iPhone Confidentiality vs. National Security: Where Do We Stand on the Issues Today? Friday, June 10, 2016; 9:00 AM – 5:00 PM Program Chair: Mark Rosen, Adjunct Professor, Brooklyn Law School; John Jay College of Criminal Justice 8:30 am – 9:00 am Breakfast and Registraton 9:00 am – 9:15 am Welcome and Introductons 9:15 am – 9:30 am Overview: Setng the Stage Mark Rosen 9:30 am – 9:45 am Opening Remarks: A View From the Bench Hon. Loreta Preska 9:45 am – 10:30 am How Natonal Security Investgatons Begin: Comparison to Other Federal Criminal Investgatons John Cronan, Karen Greenberg, Mark Rosen 10:30 am – 11:00 am Impact of Artfcial Intelligence on Cybersecurity and Natonal Security Constantnos Daskalakis, Mark Rosen 11:00 am – 11:15 am BREAK 11:15 am – 11:45 am A Conversaton With the Author—The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age Laura Donohue, Mark Rosen 11:45 am – 12:15 pm DATA, Big DATA, Metadata, Game Theory: What Does it All Mean? Laura Donohue, Constantnos Daskalakis, Patrick Toomey 12:15 pm – 1:00 pm LUNCH {on your own} 1:00 pm – 1:45 pm A Conversaton With the Author—Soldiers on the Home Front: The Domestc Role of the American Military William C. Banks, Mark Rosen 1:45 pm – 2:45 pm The Role of the Media Tina Foster, Gene Policinski, Jameel Jafer, Adam Goldman, Roberto FE Soto 2:45 pm – 2:55 pm BREAK 2:55 pm – 3:45 pm Balancing Counterterrorism, Immigraton, Natonal Security and Safety in the Digital Age Harvey Rishikof, Tina Foster, Seth DuCharme, Steven Hyman, Mathew J. Miraglia 3:45 pm – 4:45 pm Government Investgatons, Phone Devices and Privacy: How Far Can the Government Go? Hon. Valerie E. Caproni, Joseph Bambara, Josh Dratel, Joshua Horowitz 4:45 pm – 5:00 pm Concluding Remarks Mark Rosen Table of Contents Table of Contents for Materials on Flashdrive Personal Privacy, Immigration, iPhone Confidentiality vs. National Security: Where Do We Stand on the Issues Today? Friday, June 10, 2016; 9:00 AM – 5:00 PM 1. Cybersecurity Legislaton Watch 2. Cybersecurity Act of 2015 3. Cybersecurity Enhancement Act of 2014 4. Natonal Cybersecurity Protecton Act of 2014 5. Cybersecurity Workforce Assessment Act 6. Federal Laws Relatng to Cybersecurity: Overview and Discussion of Proposed Revisions 7. Preparing for the Future of Artfcial Intelligence 8. The Complexity of Computng a Nash Equilibrium 9. Customer Data Designing for Transparency and Trust 10. Unique in the Shopping Mall: On the Reidentfability of Credit Card Metadata 11. Comment on “Unique in the Shopping mall: On the Reidentfability of Credit Card Metadata” 12. Response to Comment on “Unique in the Shopping Mall: On the Reidentfability of Credit Card Metadata” 13. FBI Testmony: Encrypton and Cyber Security for Mobile Electronic Communicaton Devices 14. FBI Weighs if it Can Share Hacking Tool with Local Law Enforcement 15. No Links to Foreign Terrorists Found on San Bernardino iPhone So Far; Ofcials Say 16. Ethical Issues of the Practce of Natonal Security Law: Some Observatons Cybersecurity Legislation Watch ENACTED LEGISLATION in the United States through enhanced sharing of informaton about cybersecurity threats. P.L. 114-113, Cybersecurity Act of 2015, signed into law December • Passed House December 18, 2015, by a vote of 316 to 113 18, 2015. Promotes and encourages the private sector and the • Passed Senate December 18, 2015, by a vote of 65 to 33 US government to rapidly and responsibly exchange cyber threat • Signed into law (P.L. 114-113) by President Obama December 18, 2015 informaton. H.R. 2205, Data Security Act of 2015. Would protect fnancial informaton P.L. 113-274, Cybersecurity Enhancement Act of 2014, signed into law relatng to consumers and require notce of security breaches. December 18, 2014. Provides an ongoing, voluntary public-private • Introduced May 1, 2015, by R. Neugebauer (R-TX) partnership to improve cybersecurity and strengthen cybersecurity H.R. 2977, Consumer Privacy Protecton Act of 2015. Would ensure research and development, workforce development and educaton and the privacy and security of sensitve personal informaton, prevent and public awareness and preparedness. mitgate identty thef, provide notce of security breaches involving P.L. 113-282, Natonal Cybersecurity Protecton Act of 2014, signed sensitve personal informaton, and enhance law enforcement assistance into law December 18, 2014. Codifes an existng operatons center for and other protectons against security breaches, fraudulent access, and cybersecurity. misuse of personal informaton. P.L. 113-246, Cybersecurity Workforce Assessment Act, signed into • Introduced July 8, 2015, by D. Cicilline (D-RI) law December 18, 2014. Directs the Secretary of Homeland Security, H.R. 3869, State and Local Cyber Protecton Act of 2015. Would assist with within 180 days and annually thereafer for three years, to conduct state and local coordinaton on cybersecurity with the natonal cybersecurity an assessment of the cybersecurity workforce of the Department of and communicaton integraton center. Homeland Security (DHS). • Introduced December 14, 2015, by W. Hurd (R-TX) • Reported December 3, 2015, by Commitee on Homeland Security. BILLS Submited H.Rept. 114-363 H.R. 104, Cyber Privacy Fortfcaton Act of 2015. Would protect • Passed House December 10, 2015, by voice vote cyberprivacy. H.R. 4350, Cybersecurity Act of 2015 Repeal. Would repeal the Cybersecurity • Introduced January 6, 2015, by J. Conyers (D-MI) Act of 2015. H.R. 234, Cyber Intelligence Sharing and Protecton Act. Would provide • Introduced January 8, 2016, by J. Amash (R-MI) for the sharing of certain cyber threat intelligence and cyber threat S. 135, Secure Data Act of 2015. Would provide for the sharing of certain informaton between the intelligence community and cybersecurity cyber threat intelligence and cyber threat informaton between the enttes. intelligence community and cybersecurity enttes. • Introduced January 8, 2015, by D. Ruppersberger (D-MI) • Introduced January 8, 2015, by R. Wyden (D-OR) H.R.555, Federal Exchange Data Breach Notfcaton Act of 2015. S. 177, Data Security and Breach Notfcaton Act of 2015. Would protect Would require an Exchange established under the Patent Protecton consumers by requiring reasonable security policies and procedures to and Afordable Care Act to notfy individuals in the case that personal protect data containing personal informaton, and provide for natonwide informaton of such individuals is known to have been acquired or notce in the event of a breach of security. accessed as a result of a breach of the security of any system maintained • Introduced January 13, 2015, by B. Nelson (D-FL) by the Exchange. S. 456, Cyberthreat Sharing Act of 2015. Would codify mechanisms for • Introduced January 27, 2015, by D. Black (R-TN) enabling cybersecurity threat indicator sharing between private and H.R. 580, Data Accountability and Trust Act. Would protect consumers government enttes, as well as among private enttes, to beter protect by requiring reasonable security policies and procedures to protect data informaton systems. containing personal informaton, and provide for natonwide notce in • Introduced February 11, 2015, by T. Carper (D-DE) the event of a security breach. S. 547, Commercial Privacy Bill of Rights Act of 2015. Would establish a • Introduced January 28, 2015, by B. Rush (D-IL) regulatory framework for the protecton of personal data for individuals H.R. 1053, Commercial Privacy Bill of Rights Act of 2015. Would under the Federal Trade Commission, and improve provisions relatng to establish a regulatory framework for the protecton of personal data for collecton, use, and disclosure of personal informaton of children. individuals under the Federal Trade Commission, and improve provisions • Introduced February 24, 2015, by R. Menendez (D-NJ) relatng to collecton, use, and disclosure of personal informaton of S. 754, Cybersecurity Informaton Sharing Act of 2015. Would improve children. cybersecurity in the United States through enhanced sharing of informaton • Introduced February 27, 2015, by A. Sires (D-NJ) about cybersecurity threats. H.R. 1560, Protectng Cyber Networks Act. Would improve cybersecurity • Introduced March 17, 2015, by R. Burr (R-NC) in the United States through enhanced sharing of informaton about • Senator Burr from Select Commitee on Intelligence fled writen report, cybersecurity threats. April 15, 2015. Report No. 114-32. • Introduced March 24, 2015, by D. Nunes (R-CA) • Passed Senate October 27, 2015 by a vote of 74 to 21 • Reported (Amended) April 13, 2015, by the Commitee on Intelligence. S. 961, Data Security Act of 2015. Would protect informaton relatng to H. Rept. 114-63. consumers and require notce of security breaches. • Passed House April 22, 2015, by a vote of 307 to 116. • Introduced April 15, 2015, by T. Carper (D-DE) H.R. 1704, Personal Data Notfcaton and Protecton Act of 2015. Would S. 1027, Data Breach Notfcaton and Punishing Cyber Criminals Act of 2015. establish a natonal data breach notfcaton standard. Would require notfcaton of informaton security breaches and enhance • Introduced March 26, 2015, by J. Langevin (D-RI) penaltes for cyber criminals. H.R. 1731, Natonal Cybersecurity Protecton Advancement Act of 2015 • Introduced April 21, 2015, by M. Kirk (R-IL) Would enhance mult-directonal sharing of informaton related to S. 1158, Consumer Privacy Protecton Act of 2015. Would ensure the privacy cybersecurity risks and strengthen privacy and civil libertes protectons. and security of sensitve personal informaton, mitgate identty thef, and • Introduced April 13, 2015, by M. McCaul (R-TX) provide notce of security breaches. • Reported (Amended) April 17, 2015, by the Commitee on Homeland • Introduced April 30, 2015, by P. Leahy (D-VT) Security. H. Rept. 114-83. S. 2410, Cybersecurity Disclosure Act of 2015. Would promote transparency • Passed House April 23, 2015, by a vote of 355 to 63. in the oversight of cybersecurity risks at publicly traded companies. H.R. 1770, Data Security and Breach Notfcaton Act of 2015. Would • Introduced December 17, 2015, by J. Reed (D-RI) require certain enttes who collect and maintain personal informaton S. 2665, State and Local Cyber Protecton Act of 2015. Would assist with of individuals to secure such informaton and to provide notce to such state and local coordinaton on cybersecurity with the natonal cybersecurity individuals in the case of a breach of security involving such informaton. and communicaton integraton center. • Introduced April 14, 2015, by M. Blackburn (R-TN) • Introduced March 10, 2016, by G.C. Peters (D-MI) H.R. 2029, Cybersecurity Act of 2015. Would improve cybersecurity