YouSaid · the spoken record

Benjamin Wittes

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45

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2017-06-04

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2017-06-04

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1. “Know it's Washington, some of the year here it's unbelievably hot and humid and I just don't really want to show up for work drenched in sweat and I get exercise lots of other ways and besides I like being outside on the segue you know adults yeah adults always think you're a dork but children think you're a god and that's a trade I'm totally comfortable with”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

2. “Yeah, no, his major criticism of me was not that I wasn't even a lawyer. I forget the exact words that he used, but my distillation of it was that he called me a handmaiden of power. And so we used to joke around that I was a handmaiden of power. And I actually just taught a class on national security law at Georgetown, which we called handmaidens of power. You did it! I did. It's even on the syllabus. And so, you know, when my managing editor, Wells Bennett, left a year and a half ago, left the site, he presented me with a plaque, which was a fake, of course, handmaiden of power award from the intelligence community. Thanks for towing the company line.”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

3. “Adversary foreign power, don't confuse it with anything else. It is led by a person who does not have the United States' best interests at heart and who wants to reestablish hegemony over a region that involves a lot of countries that don't want to be subject to Russian hegemony and also has interests in protecting certain regimes, particularly in Syria, that we really don't have an interest in protecting. And so the authorities to exercise U.S. government power in the confrontation with Russia is going to be a predominant theme over the next few years.”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

4. “It's the spectrum I think about. It's an imperfect understanding of it, to be sure, but I think it works much better than a left-right access. The other axis that's useful is how do you feel about foreigners? And so then the question becomes along what axes do you share that sense that foreigners are fleecing the United States? Do you share it in the immigration space? Do you share it in the trade space? Do you share it in the financial sector space? Do you share it with respect to our allies and our overseas military commitments? One of the things that most alarms me is us versus them conception of the world. And I think one way to understand the divisions in our politics right now is across how many sectors does that seem like a congenial way to you, the observer, to understand our place in the world.”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

5. “Yes, I want to answer this in my non lawfare capacity. But look, I don't care if somebody's a liberal or conservative. That's not predictive to me anymore of how they're going to be interacting with our current political reality. The relevant question to me is when you look at this populist wave that we're experiencing, do you look at it on the other hand as areas where there are some points of commonality and some points of difference? Do you look at it as, you know, with a large reservoir of sympathy but reservations? The answers to those questions will not break down according to left-right lines. And I think the broad question is really how do you feel about elites versus mass movements?”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

6. “Whole axes of how we used to define things has just been turned upside down, inside out. If you're not left, right, we don't have Democrat Republicans. Like, do you have like any working mind frameworks for what labels we could apply?”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

7. “That was unthinkable 20 years ago, right? That somebody could attack you from Nigeria, much less that you would be attacked every day from Nigeria. And that's a sort of kind of harmless in most cases example of the world of many to many threats and defenses. But who do you look to for defense against that? You don't look to the government. You look to the provider of your spam filter. You're vulnerable to individuals that you never imagined yourself to be vulnerable to. And you look to a very different model of defense than we all grow up in sort of civics thinking of what the function of government is.”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

8. “So just to give you a very tangible example of this that you've all experienced on an email from somebody in Nigeria who is just itching to give you $10 billion in gold bullion. And if you think about that, which is such a routine part of our existence, these scams.”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

9. “Exactly. And so the question that we dealt with in the book is how do you imagine governing such a world in which governments, corporations, individuals all have both vulnerability to remote transnational attack, but also capacity to engage in it?”

   2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

10. “Right, it's technology levels all the asymmetry. Exactly, exactly. And so you end up with a world of many to many threats and defenses. And the question is, if you think about that from a liberal political theory tradition in which the government, your government is responsible for protecting you, well, if you're being sextorted from Botswana and your government has no functional capacity to do anything about that, in what sense is in what sense is that your government what is your government owe you in that situation? What does the government of Botswana owe you in that situation?”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

11. “Scalable and the power to do it is in the hands of the individual, right? And so the question that we took on in the book is a sort of governance question is how do you govern a world in which anyone can attack anyone from anywhere? And the idea is that the technologies give people both heightened capacity to participate in defense, but also heightened vulnerability to attack.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

12. “Sometimes they hack, sometimes they catfish, sometimes they trick people, they pose as a boyfriend or a if you get into one of their friends' accounts. So we actually did about a year ago published a study, a Brookings study of 86 extortion cases and they accounted for a minimum of 1,300 victims and I think more probably more like 6,000 victims.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

13. “In order to produce and sort of extort the production of pornography. And so this is in a Silicon Valley sense, the first time sexual violence has ever been scalable. We have perps that are doing, you know, thousands of victims all over the world.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

14. “No, actually it's a form of, I think of it as sort of remote sexual assault in which people either steal or coax somebody into giving them a nude or sexually explicit picture. Well, it's like revenge porn, except the stuff doesn't get released. And then you use the picture that you paint.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

15. “There's lots and lots. I mean, that's the whole story of modern armaments is, you know, precision munitions. And we've looked at this and developed anxiety about it because the moment you are closest to perfect discrimination, it starts to look like assassination instead of what it really is, which is conventional military targeting.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

16. “Entire history of the last hundred years of warfare is a history of being better at discrimination, right? And we are more militarily effective and more protective of civilians as a result of technology and warfare. Just think about two sets of military actions against al-Qaeda-related targets in Pakistan. One when the 3,000 people that we killed with drones and one when the Pakistani army went into the Swat Valley and displaced 100,000 people. The civilian disruption death injury is different by orders of magnitude. The military effectiveness is also different by orders of magnitude. And these are classic hard national security choices.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

17. “I am not an immigration expert. I do feel very, very strongly that it is important not to confuse the victims of terrorism with terrorists. Generally speaking, the victims of terrorists have the same ethnicities and religious backgrounds as the terrorists who kill them. And so when you look at people either in the immigration context or other contexts and you make rash judgments about who should be admissible, who should be excludable, who should be deportable, you are, to the extent that you don't do a very good job of what the military calls distinction and actually discrimination, which is interesting word, it has a negative valence in all contexts except military targeting, where it's a positive command to do it, right? You want to discriminate between your targets and the people around them. If you don't do a good job of being discriminating, you're very, very likely to be re-injuring victims of terrorism. So I just think there's a moral call as well as legal call to be to.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

18. “Right. So look, one of the very frustrating things about this debate is that everybody feels that way about the other side. I agree with you. In the tech world, there's a sense that you're arguing against math. And if you talk to people on the other side who are living with this problem every day, what they will say is Apple and these companies do a terrific job building in all sorts of recovery backdoors for purposes of service delivery. And the reason this is impossible is that they want it to be impossible. And there's lots and lots of argument on all sides that the other side just doesn't get it. And I actually think everybody should pause before saying the other side just doesn't get it. People should spend some time to try to look at it from the point of view of their interlocutors and the conversation because these are all functions in society that we want to performed.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

19. “Fascinating because you made that entire response all about policy and politics and there's an incredibly technical aspect to it. I remember the history of the crypto wars, crypto war phase one, crypto war phase two. This is arguably crypto wars phase three and it's actually more to your point a war of attrition because it's like these little battles being played out versus like one big deep discussion and an ongoing way. But where is that technical part of the debate where we talk about whether backdoors are even possible? It's a violation of map. I mean, I understand the concerns about law enforcement devices going dark so-called, but it's just frightening to me that tech isn't at the center of that conversation. Right.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

20. “Exactly. And dams bursting is a really bad way to make policy. Do I think it's necessarily the case that Apple loses? No, I don't. I actually think they might win. If they lose, I think they'll lose in litigation, not in legislation. The scenario in which Apple loses or some other provider loses is that they lose in litigation and then they have to go to Congress in order to change the legislative landscape to undo what they've lost in litigation. And at that point, you'll see a compromise of some sort.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

21. “But I feel strongly about is not any particular outcome of the conversation, but that we actually have the conversation in a serious way. The problem with what we do is that something awful happens and then we have it for a period of time until we let it go away. So what's happening now in this period in which we're not having the conversation is that more and more and more phones are showing up in law enforcement unopenable. And this is affecting more and more law enforcement agencies more and more often and we're having no debate about it. And the problem with that is then one big thing will happen and will have a giant spasmodic debate about that particular phone.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

22. “It happened because of the Russian hacking. It used to be that everybody agreed that cybersecurity was a real problem overseas and domestically, and we need to figure out how to A, secure our systems and B, change our incentives to better protect against those bad actors. And now we have an environment in which the President of the United States denies the fact of certain important significant cyber activity. And before you can argue about what to do about it, which is or about cyber vulnerabilities, you have to have this pre-argument argument that has to do with what political side you're on, what you think about how you feel about Vladimir Putin, and what you think about WikiLeaks. And I worry that that is going to make a lot of cyber.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

23. “Job is actually not to have political opinions. I mean, we do, and that's fine, but our fundamental job is to analyze difficult legal problems. I have a very big problem with people who neither know nor care about what the law requires of them in their positions and present them in a way that people can find useful.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

24. “And so I always thought that was wrong. I mean, it was right in one sense in that we were who we were and we'd argued the things that we'd argued and some of them were politically, you know, not where the center of gravity of liberal opinion was. And look, I think of myself as a centrist, but a lot of people don't think of me as a centrist. And so, you know, there was an element of truth to that. In the last year, that perception has flipped. Somebody tweeted the other day, lawfare isn't left just professional. And I burst out laughing because a year ago we might have hoped to get the law fare isn't right just professional, but we never would have.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

25. “The other thing is that the authorities grounded, you are bipartisan, nonpartisan, and that you cover all this range of perspectives, so-called left-right. In fact, the funniest line from your New York Times article is that for a while you were disreputable to the left. What's up with that”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

26. “Well, so I think the way we see our job is our job is to be a resource that gives a politically diverse range of genuine expertise on questions that they're thinking about. And I think that process is disciplining as to the academics who write for us because, you know, you're not talking to your class.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

27. “And I also think part of the problem is the insularity of academia. You know, that there isn't an obligation for many of these fields or sense of obligation to speak to somebody who is less initiated reader.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

28. “Part of the problem is that the blogs, generally speaking, that try to give voice to academics are generally not run by journalists. And so they don't have a journalistic sensibility in terms of what they're pushing people to do.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

29. “I have to say on the meta front, again, talking about the media trend underlying this, both Hannah and I are editors of expert voices. And essentially one of my theses around this is that it's actually really depressing to me that media dilutes expertise with third-party third-person voice. There should always be first-person voice for experts. And the only block between first person experts and mainstream is this ability to translate a little bit more broadly. So people who aren't just so inside their field can hear it directly from that expert. Exactly. editors come in and a lot of what expert opinion editors do but to your point on the mainstream media landscape there's actually not a lot of places where those people have a platform to speak so i actually think your model of having law students is exactly the right replicable thing that a lot of media people should be doing so i think it's”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

30. “You actually have some in my, you have some of my people. My folks, I used to edit at Wired Nicholas Weaver. I think I was the first person who ever published him. When he was a student at Berkeley then.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

31. “Around encryption. Now along the way, there are all these other issues that arise, for example, people get charged with material support for terrorism, the government asserts a national security FOIA exemption to protect a program. And then there are wonky things like the alien tort statute, which is an area that human rights groups and U.S. corporations care a great deal about. And most other people have never heard of. And so that's the kind of bread and butter stuff of the site over the years in the course of covering that we assembled a remarkable collection of people with a lot of enormously precise technical expertise. So that includes people like Susan, who came to us from NSA and is one of the genuine government side surveillance law experts. It also includes major”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

32. “So, arguably, those questions have not yet faded, although the number of drone strikes has certainly faded. But then just as that debate was kind of cresting, you had the Snowden revelations. And that was an enormous set of discussions of surveillance authorities, surveillance tech, how those interact with one another. And then just as that was starting to fade,”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

33. “Yeah, I mean, there's a complicated history in general with anything that talks about this when you talk about off the shelf components being used in military settings, when you talk about military technology trickling down to consumer use, there's a whole tension throughout the entire history of tech where I think this stuff plays out. But the salient point here is that among the epics we had 9-11, then you did the coverage around drones and drone strikes and the wrestling questions around that”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

34. “On the one hand, you're talking about battlefield drones, right? Weaponized battlefield drones, but you're also talking about the CIA's use of drones in non-battlefield settings. Such as, for example, we did a whole bunch of drone strikes in Yemen, was not considered an active theater of conflict at the time, right? And then there's also the question as the technology proliferates, including proliferates to the level that you can go to Best Buy and have your choice. And once you do that, the only difference between you and the CIA is carrying capacity. Your drone doesn't carry as much payload. They have much better targeting capability than you do and more sophisticated weapons that they can attach to the thing.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

35. “So Snowden is actually the second to last of these. So first, a huge percentage of the site was about the law of detention, the issue at hand was Guantanamo and the sort of developing law of detention and should you close Guantanamo, under what law should you hold people there? Under what law should you hold people somewhere else? Over time, that set of issues faded, the salience of the issue diminished.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

36. “The part that's fascinating to me about this narrative more broadly is it ties into this larger theme of the evolution in media and blogging in general and self-publishing. And that time, that period, there was this complete explosion blogging became a thing. Bloggers started their own media outlets, but it's also tied to the phenomena of the long tail where people are craving niche expertise. And you can self-select and find these people on the internet where you have this infinite shelf space to find them. But the second half of this, the fact that it went beyond a niche to a little bit more mainstream interest is I think really interesting. And besides 9-11, like what are some of the other epics in policy and political history that have kind of led us there? Like would Snowden be added to that list?”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

37. “There's nothing abnormal about going to a court for a physical search. There's something peculiar about a court that has electronic surveillance authority and no physical search authority. So they tried to regularize that and successfully did in 1994. When I left the post, which was at the end of 2006, I left to write a book and I came to Brookings. Lawfare was kind of an outgrowth of that work combined with work that my colleagues Jack Goldsmith and Bobby Chesney were doing.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

38. “Captures of foreign to foreign communications that are passing through servers in the United States. So it's an area of law that is both highly technical and institutionally very peculiar because it is its own court that is set up purely for this purpose. And I got interested in it in the mid-1990s after the Aldra James case. Aldrich James was a spy at CIA for the Russians. And after the Ames case, the Justice Department quietly went to the Congress and asked the Congress to expand the jurisdiction of the FISA court to include certain physical searches, that is, you know, actually breaking into somebody's apartment and searching their stuff.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

39. “Every now and then somebody writes when they want to sort of dismiss something that I've written without actually engaging the argument. They'll say, Benjamin Wittes, who isn't even a lawyer, argues that blind. I just wanted to know if it would take a lot of work. So I am by background a legal journalist. I actually got interested in national security law as a result of this institution that nobody at the time had ever heard of called the FISA court. The FISA court is a court constituted by Congress in the Foreign Intelligence Surveillance Act of 1978, and it does basically two things. It considers applications for wiretaps in the National Security Context. And it also supervises certain programmatic surveillance activity, particularly related to domestic”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

40. “Warfare, lawfare, yeah. Right, exactly. So it was designed to capture sort of conflict law as a subject, but also, you know, conflict over the law, right? The thing is that in certain other contexts, particularly on the hard right in the American political context and in the Israeli national security vocabulary, the word has rather a different meaning, which is as a kind of dismissive term for generally human rights advocates who use the courts as a way of disabling national security functions. Oh, interesting. So a lot of people will refer to lawfare as a kind of Use of law as a weapon of war. And that's not for the framework in which we've ever used it.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

41. “And just as we were about to launch it, we found out that the great scholar Michael Glenn had a book coming out called Fog of Law. And so we had to switch gears and we used lawfare instead. Lawfare is a word with a bit of a weird history. We use it as a kind of a sort of pun on war over law and law about war, right? It's sort of the dual meaning.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

42. “So I think that's exactly right. My colleague Ken Anderson, who is a law professor at American University very early in the history of the site, he said to me that the reason lawfare was so effective was that it never made an apology for speaking as a voice of authority. In this environment in which there is this real interest in voices of authority as well.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

43. “It's not just what you're covering, it's also the way you're covering it. And I think there's a thirst for the technical also as a part of a kind of relief from the partisan, from the opinions, from the distrust of what we're getting along with it. And there's this kind of grounded factual technicalness to it.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

44. “You know, that post is actually interesting because it's, among other things, it has some high altitude comments on the executive order, but it is also a technical dissection of why I thought this executive order was going to give rise to a lot of litigation opportunity. It broke down a lot of very kind of Picayun aspects of that.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source

45. “Yeah, so we have had, I mean, quite literally exponential growth between last year and this year. And it's a really interesting effect of the Trump first candidacy and then election that he generated enormous interest in the issues that we cover, what we call hard national security choices.”

    2017-06-04 · a16z Podcast · a16z Podcast: The Law (and Tech) of Warfare · IDENTIFIED FROM THE TRANSCRIPT · source