Transcripts For CSPAN Privacy And Civil Liberties--Board 20131110

Think history will record, is that you were not fully functioning until may of 2013. That is about 8. 5 years lost of a very critical mission. Let me just say that a goal in the law, certainly my personal goal was to have in the law certainty that liberty and security were reinforcing values in the policies and practices that we established under the law. Is if ever that function were needed, it is right now. Me that youunate to were one of the best kept secrets in washington. I know you are making a massive effort to get out there and i commend you for it. Urgenthink the need is and you, uniquely among the different groups in looking at arepolicies and practices, able to make sure from the inside that we are doing the right things. Let me make two other points. Germanyas in berlin, a week ago today, at , dinner for top policy types think tank leaders, and business people. All of whom were shocked and horrified by the revolution europeanns revealed in newspapers. When i told them that i was testifying next week, they looked stunned. And they said, gee, that is wonderful. I hope that a group like that will also be in touch with foreign governments. So i put that out there. Im not sure if that is in the mandate or it is not, but it might be interesting to think about connecting to those folks and may be forming some common cause about ways to look at the practices and procedures of different countries. And finally i will offer my. Bservation about this our government needs Crisis Management 101. It seems to me as a politician that when bad stuff is coming and i were just imagine that when some guy named snowden is taking all of this information from the government and ruling it out, you get a frame in the context and you talk about what else can come. Ut and what it means this is just free advice from someone who spent 17 years in the u. S. Congress. Some Crisis Management function from our government at the highest level could be helpful, along with a robust privacy and Civil Liberties board. I have been in this game for a long time and i passionately hope that things turn out well for our country, and that we have both security and liberty to look forward to. I am professor kerr. Thank you for the invitation to testify this afternoon. The fisa statute is premised on a search warrant model, putting article three judges in the position of evaluating search warrant applications. And that model is not working, because the search warrant model is premised on the judge serving essentially an admin and in role. Erial the judge is not trying to conduct a conference of review of whether the statute is being abided by correctly, what it may determine, and what the consequences might be of the warrant is issued. That does not work in a High Technology area, because technology is simply changing too quickly. Judges are, therefore being uses of resolve typical interpretation, which they are not equipped to answer in this antext, a context such as search warrant application. This was discussed earlier this ,fternoon at the earlier panel ways to restructure and make amendments to the war and model. A special advocate approach is one approach, encouraging disclosure. Encouraging interpretation is another approach. Both of those are interesting and promising ideas for how to reform the Foreign Intelligence Surveillance Act to deal with new technology. Let me suggest two other approaches, one which has been discussed and implemented and the other which has not been. One is content provision. Having the Government Authority last for a certain number of years, and then expire putting the burden on the government to secretly love that power. Sunset provisions were originally designed to have testing to see if the government a fewneeds that power years later. Today, in light of technology, it is a way to make sure that government has to go back to congress to seek approval for any new interpretations of the law. Combining sunset authority with disclosure of interpretation that the fisk is taking is an important step. But another approach that has not been suggested so far is a rule of d for foreign rule ofleddity with in the context of the law. That judges should adopt the narrower interpretation of criminal law, and that implies that government should have a broader to have a broader interpretation of the law, they have to go to the legislature and enact it. The idea being that it is ultimately up to congress, not the court. This rule would serve a similar function. If it is a close call, the default should be for the fisa court to reject the interpretation and tell the executive branch that they have to go to congress to get approval for the interpretation of the statute. Branch tohe executive go to congress and not seek who are notm courts equipped to analyze the enormity of the questions and the sunsets, essentially a provision and the rule working together to force the executive branch to keep going back to congress as Technology Changes to have congress approve or disapprove any new surveillance programs. Thank you to the members of the board for inviting me to testify today. It is quite an honor. As a formery hat Congressional Staff member, i would like to raise to transparency points that i think tol raise will relate some of the discussion on earlier panels. We heard on a prior panel the idea that the fisk having had, or currently having a mechanism to seek review of an outside technical expert. I think that is an excellent idea, but it is an equally important resource for Staff Members and members of committee. My ex variants working on the electronic forms privacy act, which was not done under essentially working with classified information mama myself and my colleagues were able to contact outside experts, professors at universities, people who worked in the telecommunication industry for decades in order to get the view of current capabilities in where it was going in the future. It should not surprise anyone that the governments views did not comport with the views of the outside expert. The government as an advocate. A very Important Mission to do and present the view of technology in a way that west represents its position. What outside experts could do, in addition to getting a different view from government was helping the committee look to the future to understand where the technology and its capabilities were going so that in the course of trying to write would not become obsolete with the new iphone model, we have the necessary information for forward projection. Secondly, and this point goes more towards the discussion on 215 and something the judge raised on the first panel about things that have been said in different press outlets by regarding therts fact that the government interpretation was perhaps novel or a little idiosyncratic, certainly not something that people who were perhaps experts and surveillance law could read the statutes and say i could see how the bulk of authority would operate under the statute. What i would like to raise is a problem that occurs from a process level as a Committee Staff member, especially on the Judiciary Committee. Certainly we hear classified information and often have three things behind closed three things behind closed doors but Committee Members interact with nongovernmental state holders who have real interest in how these are written and how they affect the privacy and interest of the general public. When you have a situation that a government legal interpretation is essentially hidden from , the dialogueure that must occur between the staff and Committee Members and these nongovernmental constituencies, sickly can be very dysfunctional, because when you discuss why you want to make a change with a statute but are not able to talk about what you think the change will do, it can the the effects of having governmental constituencies argue for changes in the law or reject proposals that are not in their interest. I think that raises a very problematic process question calling into question the integrity of the legislative process with respect to legal thatpretations of statute must remain hidden from Public Disclosure. Law am not a scholar of the but of systems. Find wayssystems and where they can be studied or bolstered. The first is we have heard about how carefully this is controlled. That it. The professor scrubbed the takemation we can perhaps that as given and relies we do have a number of people working very hard in the Nations Defense and interest. Privacy ised with the systems are constrained and controlled within a very small they can swing out of control beyond what is intended. This is by no means unusual given the history. This was used for political games that were later rolled unconstitutional. What we need to do is look at where are the points in which this can be controlled . Where are the points we can observe to make sure the system cannot be subverted. We are lacking in the transparency. The fact that people who have the order served against them cannot talk about them, cannot areg them up for a court all considerable problems in terms of writing any wrongs or oversight. That should be addressed. In particular, we have heard how elected representatives are unable to hear all of the information about the programs, to engage the cleared staff and have conversations with each other about the issues involved. To my knowledge, we have not elected any terrorist to congress. We are not in a position where we have terrorists in the judiciary or operating isps. From safeguarding those individuals, it is really counterproductive to the interest of the nation. I would suggest you look at that is one thing that might be considered. In general, i believe classification is overused. Anything that is classified should be classified only to protect the safety of a party or for operational efficacy. It not should not be used to hide things from the American Public. Things that are classified when the american when they come out, the American Public should not be ashamed of what the government is doing, and we have seen instances of that in the past few months. Wont makecomment i us more technical. I circulated a set of fair Information Privacy practices that have been put together by the u. S. Public policy council. Good privacyvern and databases. I would ask that you look at those as you consider possible changes. The more of those upheld, the better we protect the privacy of information. The more information we collect, the more likely we are to collect noise, particularly if it is stored for a long time. In any system, the more we try to avoid false negatives, missing cases of things we are looking for, the more likely we are to generate false positives. There is a concern for the American Public that in the process of trying to be sure we stop every care terrorist process, we cast the net that is likely to engage individuals that are involved in unusual but not illegal behavior. I will be happy to answer questions later. It is a pleasure to be here. Brief. Try to be very we have heard a lot today about the idea of a special advocate, so i thought i would focus my remarks on that proposal. I suspect members are familiar with a Research Report that was disclosed last week about constitutional concerns with the special advocate and thought i would briefly briefly address them. First, the report suggests a special advocate would raise article to problems with regard to the appointments clause and how that is set up. I think this is perhaps a non sequitur. I do not think there is any current proposal that would actually constitute the special advocate a something resembling what the Supreme Court referred to as an office of the United States. I think this is a bit of a red herring. Of issues iscket concerns about adverse miss ness. Se mis this has been an effect. The judge raised this concern as a possible rejection to fisa. I am happy to elaborate more on why i am not convinced this is a problem. I think the only relevant point is a special advocate would not exacerbate any adverse concerns that exist. That is to say, there may be concerns. Having an Adverse Party only not make them worse. Instead, i think the hardest issue raised and one i think that is the greatest head scratcher for the special advocate is the appeals question. The Supreme Court just said and proposition eight that a party must have a direct stake in the outcome in order to appeal an adverse decision by a lower court. I for one am pretty confident it is part of the Article Three Court system. Obviously, i think some of the current proposals would not invest with such a direct stake in the outcome. It seems to me there are two responses to the problem posed by the perry decision. The first is to create a direct stake. To have the special advocate. Not representing a undifferentiated interest but to represent u. S. Persons who communications might be thercepted or so went to surveillance being authorized. That might raise policy questions difficult to think about. Certainly we have precedents for such separated representation. Class counsel. Class action. Even for example, habeas corpus lawyers. One possibility around the problem is to create the direct stake. The other is to avoid it. I suspect there has been some discussion among the board about aboutea of certification the possibility of having the fisa court certified. This could be modeled on the decision. Urt this allows for circuit courts right now to certify questions to the Supreme Court at any time and whether or not a party is asking for such certification. Another possibility is to borrow a possibility from the bankruptcy context and bifurcate the decision into those that they are allowed to enter the final batter. In which case the court would be empowered to act finally. Those in which it could issue a report and recommendation that fisao be confirmed by the court to review on appeal. That is how the Bankruptcy Court perceives right now. It is another way to get around the problem. The larger point is i think the appeal question should not distract from the advantages of having some kind of adversarial participation. Even if we cannot ultimately solve how we will be allowed to proceed. Thank you for joining us today. You see it over time emma both risk respect to the Judiciary Committee as respect to receiving reports, exercises and oversight function in addition to the intel midis. Do you think we are in the right place right now in terms of congressional oversight. Or should congress be taking a fresh look on how it exercises oversight capabilities. Might make sense to go from i left to right. I think it is a great question and something that has to be revisited. I was there, working and the white house when it was passed in 1978. Group thatart of the passed the bipartisan law but was impressed by the fact that the basis is robust functioning of all three branches of government. Executive Branch Policy review the fisa court and overseen by the congress. That was the deal. That worked very well until 9 11 9 11 then the events of and the fear of ongoing 9 11 caused the Bush Administration to feel that we need a dramatically enhanced response. R aggressive approach they ignored fisa for a couple of years, which i found out afterwards. I was a member of the gang of eight and congress pushed back to catch up to technological change. Fisa and other laws, patriot act and other things mentioned certainly executive board order 12 triple three are in place now. What is my basic answer to you . I think robust oversight is crucial. I think it should extend the on the Intelligence Committees although i think they have special roles because they have special understanding or are supposed to. I hope i did. Of what the challenges are. Of the reach of the programs, all members of congress should have some role in oversight. I think the challenge is that the change is in Tech Knowledge he. Others on the panel know more about that than i do. Very hard to craft either at law or oversight regime that can iphoneate what ipad or six will look like and what capabilities it might have. But what else will be out there that we cannot imagine or i cannot imagine. I am the grand mall. These kits can probably imagine it. Can probably imagine it. This is largely outside the area of my expertise. One area that i think matters a lot is what is the Reference Point that congress is looking at the question from . So if there is a sunset provision or the pfizer board is taking conservative interpretation of the law, the executive branch has to go to congress and get something from congress, has to persuade. When the executive branch is an up position of needing to persuade, that is going to lead to better oversight than the opposite. If the fisa court is taking an aggressive interpretation of the difficult,relatively i think, for the legislative branch to get the kind of oversight it means. Effectively trying to say what might be going wrong that has been approved by the fisa court . At difficult position to be in. One of the benefits of the sunset revision is it effectively means the executive branch has to go to the legislative branch and make the case of affirmatively. I think that will lead to better oversight. I will take the and of what professor kerr said and when the toislative branch has to go the other branches, the legislative branch has to stay engaged. If the executive needs to ask congress for something on a regular basis, members will stay engaged, it is going to be a priority. I think it needs to be a priority. Thank you. Enqueue. Just to follow up on the question of congressional oversight. Those of you who are here for the Previous Panel heard me ask about the proposal to return requirements wheres the government would have to tell what they were doing afterthe fact. It is not congressional oversight but judicial oversight. I have a cynical view that it is a fig leaf and not professional oversight. So that was the reason for my question earlier. The same question about congressional oversight. Very granule of granular. If it were increased to include very granular reporting, watch what congress do with the information, and does it enable a greater level of oversight the net are ready exist . Are ready exist . If i were not an optimist i would not have served in congress for 17 years. I think it is a tragedy we seem to be basically in ordering the regular order of the committee process. Even the granular stuff, they are very smart people, sitting right here. There are members who care about getting it right. Yes it will take a commitment of resources to get it right. I think the challenge will be keep moving. S that it will change because the of our technologies and what the bad guys can do are evolving and keeping on top of that and understanding what that means and understanding what the requirements are, not just what does the law say, but who should lead be focused on and how should we be doing this . It might just in two years or 10 minutes not just be phone numbers and bad email addresses, it could be something in the crowd that i cannot even imagine or something beyond the cloud. Obviously you want reporting requirements for information to be useful, but without it, what can congress do . I found one of the most of theging aspects reform of criminal investigative authorities was just getting Accurate Information about how technology functions. Often the government was using certain types of authorities. Metrics forf dedicated staff and members, and they are there, is very useful, but if it is not there, where is the starting point . Do you have a view on what kind of information that could be provided that would be useful . I wanted to add to that that reporting is not sufficient. With the technology and complexity, i can craft a report that says everything and Means Nothing to the people who read it because they do not have background. Unless we allow those with expertise in the area and time in office, and largely a staff function, the ability to ask questions to be brought out to either the court or to elected representatives, they will not be able to understand what is going on with some of the very complex technical issues. I come back. I have this concern that reports have cap staff from being able to be briefed or aware of these things or to discuss it with members. Many of the members have background in law where they do not understand the technology and depend on staff to help them get bits of information. I think there is also an incentive problem. Everyone isgree working in the best interest of their constituent. The problem is when this all happens in the dark, i do not gow what the incentive is to down and spend hours and hours going through materials they may not even understand. Last tuesdays hearing brought this out quite sharply. When you have the Intelligence Committee say it is not a violation of the privacy if you do not find out about it. The question is, how do we change that mentality among the members that are tasked with the oversight function . Heart of that is not just underreporting and better opportunity to engage reporting but some mechanism to which it is more in their interest to exercise oversight, as opposed to keeping things under the rug. Your question was not just about reports, i thought it was about oversight. Oversight is much more than reports. It can be offensive to. I am told back in the day, Michael Oneill read every single fisa application. Read every single one. That is pretty darn good oversight, assuming he it when he was reading and a pretty smart guy, still around. That would be impossible now. Too much going on. It seems to me the right people motivated the right way with adequate resources and part of that is the determination to focus. Do not sell members short. Some members are keenly interested in this. They can make it a priority to focus on this. I think we need a staffing pattern that enables members to do that. I think there are members that have been and are very conversant with oversight. Earlier you said there was a concern that more information you collect to avoid may false negatives is the greater possibility of false positives. Do you have an alternative for alternative accomplishing the same goals. Access information at the provider level. Using a federated search model or something similar to that. What are your thoughts on Technological Solutions to avoid the problem he seemed to be concerned about. It is difficult to give specific examples without delving into specific systems. I will say from general of what press, theyof the collect all of the information in case it is useful and then mine all of that. The problem there is it is possible to collect huge amounts of information. Introduces noise. An example of this is the analysis that uses the three hot collection for contacts. An analysis brings in car rental places and pizza places and introduces more noise. It would reduce the amount of searching, data necessary. Fundamentally it is hard. A question of where are our values here. The hopes of catching every last person who is harbored an in the know call thought. Somewhere there needs to be more balance where we are willing to use intelligence methods for safeguarding ourselves and not try to head everything off. Thank you. Earlier you talked about a potential model. How would you square that with of havingce needs that nonvital order of having the government engage in surveillance could delay critical surveillance activities while the review process goes forward . I think it would not be that difficult. You could narrow it down to a preliminary injunction. The preliminary order by the fisa judge would be sufficient to allow the government to act on it interim basis, pending review and finalization. The idea is that with called both problems. It would allow for a subsequent retrospective review without running into this. The Bankruptcy Court has the pending review. When you have the supply . We have heard the vast majority of the routine request that do not raise technological issues would you have the bankruptcy model approach at every single request, and if request this . You the whole idea is to divide it. Corporate savings from noncore proceedings. In court proceedings, this is in regards to physical cases. The Bankruptcy Court has the power to act finally. It is only in the noncore proceedings that you have that review. It seems to me you could have a trigger. Some of the proposals include any decision turning on a significant question of law or significant departure. There are ways to make the threshold work. Whether it is a novel interpretation. Whether it is application of a new set of facts. The devils in the details. This would sort cases into one of those capitals. How do you get to the Supreme Court . The supreme the Supreme Court seems to raise the controversy question of going from the review because you do not have the lack of finality from the lower court. The Supreme Court issue is still a problem. You could presumably solve it not the same way but analogous in my opinion. They could then send it to the Supreme Court. The Supreme Court could say we do not care. The Supreme Court has not answered a certified question since 1981. At least they would have the ability to try to get their attention. Enqueue. Thank you. There has been a lively debate from the commentators as to whether or not it is theicient to have Representative Democracy model for big bulk programs like 215. Elected members of congress that if they set up a. Ystem for review people just have to live with that. That particular exit strategy is not worth that much. The deeper thing is is that the right model or the model we have written about that when we get that reallyam encompasses a large portion of and people who will not have any terrorists implications afterwards. Even not necessary even at the cost to the risk of the type of security for that to be disclosed and operational details but the fact that we have opal program that goes to xyz. I am wondering about your thoughts. We have known each other a long time. Stephanie and anyone else who wants to. First of all, pat, decades of service to our country. Certainly you are the gold standard. A course atng Harvard Law School a week ago and a young woman was talking about this and said why should governmenta or any agency to put the technical side of this together . Why should we and then why do you trust them . I said i start with this, there are bad guys out there trying to attack us. I want to know who they are and prevent and disrupt them before they do that. My assumption is most of them is in some Foreign Place and not u. S. Persons. Congress tried to design a system, and i think it is pretty well building in safeguards and congressional oversight. The system got a lot bigger since nine 11. I do not know if it is the right size. I know i am not the person or if i were a member of congress now or even the lowly beat up president and ceo of the Wilton Center just kidding, i am not the right person to decide what the size is. I am much better at designing the safeguards so there are not abuses. I am pretty decided we have to haystack. Te what are the right things. More Technical Knowledge should decide that. Subject to review by the fisa courts and may be the Supreme Court ultimately depending how we structure this. I am for Supreme Court review so there has to be standing that is decided for. Maybe that is an oversimplified version of it. I trust our government subject to safeguards to do the right thing to keep our country safe. Let me clarify or followup. In 215, 1 of the criticisms, even by some isolated members of congress is we did not even know it was meant to encompass bubble selection. Is but some people in congress did. I do not know whether an that this was told was a contemplated youth, so they knew it, but maybe not until it was passed. Reauthorization from when they were set up at the department of justice explaining it. Apparently not everyone read them even though they could have read it. Theess i am getting to question. I only raise it because it is a philosophical question. Some people call it a secret law. Everyone does not debate in the what isebate about really involved. I understand the security risk, they cannot debate about a lot of security but the question of whether there is some level at which they should know something you do not read the ordinary meaning into could encompass a very novel and expensive program. To debate this. When did i know it when we were debating the victory act . A lot of it was controversial. What the white house requested was cut back by congress. Several sections were sunsetted as we just discussed. Whether it is the best activism, i do not know but requires congressional review. 215 was one of those. Controversy about the library provision. Whether a grandma taking out a library book was kind of screwed et. But this was debated. I do not view this as a secret law. What precisely was the process to get information was discoverable by members of congress. I think someone not a member of congress or on the Judiciary Committee who wanted to know how it worked could have found out. Again, a lot of stuff going on and people it distracted. This was not the public issue it has become in recent time. That again is why there needs to be a robust privacy and Civil Liberties the mission. This commission, had it been 2000 whentioning in patriot was reauthorized or controversial provisions, you could have. , focusedd been there attention. You could have influenced how the changes were made. If there was anything to add to this . Will try to narrow it down to your specific question about an interpretation of a statute that authorizes a type of oak collection that would not be readily apparent to a surveillance expert that read the statute. Former National Security prosecutor have to, so much of intelligence oversight does, and a prop up probably doesnt have to happen behind closed doors. We need to figure out how it is possible might not to hide interpretations of the law that are perhaps not idiosyncratic or novel. When i was thinking about this issue and preparing to testify, in terms ofd me dialogue and exchange between Staff Members and constituencies back in the 2009 time frame was the inability to explain to those constituencies, nongovernmental stakeholders what would happen to language if it was amended in a certain way. And you have the potential for constituencies who are very interested in these issues lobbying or supporting language that was not necessarily in their interest. I think that is a broken process but a hard problem to cure. The executive branch is going to say there is going to be if the legalrity interpretation tells people that we are collecting bulk to collect new metadata. Thank you very much to the witnesses for coming out today. Professor kerr, any thoughts on the question of review or call it appeal . You have written extensively on appeals in the criminal context. In the fisa context here, there is interest in creating the process for getting from the judge to the fisa court of review. Could that restructured that is it least as constitutional as the rest of fisa . In part because the isstitutional question almost entirely unexplored in the case law. About and we think application for an expert a case order . Is that like a case, in which case is an exercise of the judicial power and need to think of it in the traditional article some sort or is that of an extra issue that goes does notjudge that require the additional traditional article three to be followed . We do not really know. It is really difficult to know what the constitutional parameters are in terms of what is permissible. There is a tremendous great area and do not think there will be defining one way or the other. I seem to be somewhat skeptical that the Supreme Court specifically could serve as role here, and part it does everything they are doing is on the record, all in all all in open court. Difficult to have an oral argument where they are talking about hypotheticals in an area where there are a lot of classified issues. I do not know procedurally how that will work. Impart my idea of the rule of way of avoiding this entirely. I think if you have the initial court decision. , thee rule of lenity government would have the right to appeal still. You end up with a situation where you perpetuate the Current System where you immediately go go back togress or the Supreme Court. I suppose you could have the er rathernd at the fisk o than go to the Supreme Court. I think you have the same problem with the Supreme Court trying to step in. So the Supreme Court has never been a position to review that. I am more optimistic about about Public Disclosure the interpretation of the law combined with a sunset provision that forces this to be hashed out in congress. I think it is important to not generalize. I would draw a very sharp distinction in the original pfizer. Congress expressly provided for diversity. In both statutes. The recipient of the 213 order. The directive has given me and expressed rights to participate at the cereal before the fisa court. It is satisfied until we get to the appeal question that i was talking about before. In the war and on text, i am less circumspect only because of of whatave a hard time is considered an exocrine show duty. Majesty, not just a neutral government officer of the Big Government description to sign off on a warrant. Could you even go so far as to is it possible to say because of the Fourth Amendment wet the case in controversy have said that judges do this. We have said this is appropriate for judges even in the absence of this. It is right there in the constitution. Asked how ever really we get more in store for judges in the first place. Katie that is the answer, but it is right there in the first amendment. I dont think so because the case law has suggested it does not test the neutral magistrate does not need to be a judge or lawyer. Could be someone who is a court clerk. It could be someone inside the executive branch who could count as a judge for Fourth Amendment purposes. This goes back to the difficulty of figuring out how to categorize search warrant applications. The fact that you can have a nonjudge issue a search warrant takes it outside of the and suggestsystem that may not be a judicial function. Is usually a gray area. There are extraordinary context where you can pursue, seek to challenge. Traditionally the understanding has been no. There has been some disagreement and the title iii setting. That is another murky area. A gray zone. I would like to turn to a totally different topic. Our statute requires us to specificthe need for action taken to protect against terrorism and balance that need. One thing that i think is very difficult to articulate is what makes a Program Effective . Cannot simply be the program has affect an effective it has thwarted five plots, 10 plots. Open to thew panelists, what other types of metrics we should look to in determining whether specific actions or programs are effective . I do not inc. Wording th is ag plots sufficient measure. A lot of oversight of the program. Oversight adds value, in to curbing abuses. It could enhance the program, point out deficiencies. I think the metrics have to be more complex than this. I superimpose something over this, one is the changing technology, which is very hard for the congress or courts or to keep onve branch top of, which is something that bad guys are keeping on top of. Inis imperative to factor changing technology. They need to be sure the public supports what we are doing. Hat is a role that you have i do not think privacy and security are a zerosum game. That is your job to make sure we get both. I think it is unless it is perceived we are getting both there will be constant anger and secondguessing and drastic remedies proposed which at some point might take hold and then we lose both. I am not an intelligence answer to hesitate to the question but i do believe the gentlemen from the nsa made a very interesting statement, and that was the internet meta data program was ended. That had been public. He seemed to indicate it was ended because it was not seen as affected are providing a level that the other program was. I was very curious and do not expect the government to talk about this and public but what was the metric . Picturesgetting better of terrorist groups or cells of activities because of what this program is doing first in what the Internet Program is doing . Probably something you could acquire about inquire about behind closed doors. I think the change in collection had to do with the pfizer court. This is why it was cut back and what was collected what was destroyed. I thought this was a great that is what i imagine he was talking about. There are things that can be measured, such as the cost of waldo storage necessary to hold of theeyear cost holdings door is necessary to hold the fiveyear data. There can be other types of costs calculated for protecting that. For instance, the nsa has spent a lot of money to build a Large Data Center in utah. They can answer this in a classified setting. You can answer measure the number of successes, failures, produce some measure of the number of false incidents they have investigated and spent time and effort on. How much has gone into that. Can draw some copulation as to the cost per success in the cost per failure. Theyre after is a policy decision as to are we spending enough, too much for each one of these incidents . That requires a full accounting of what things have been prevented. Apparently this collection is directed towards antiterrorist activities. The number seems to be small relative to the number invested. You have to get a policy decision that is certainly beyond my pay grade. Court has an efficacy is not just a function of the and alsot success rate a function of the cost of the government to providing to the government and i think it is impossible to divorce her efficacy of particular surveillance programs from an attempt to figure out what the actual downside would be of adding additional safeguards and protection. It is not just accuracy but a lack of false positives on the actual Positive Side as well. I have a policy question that may or may not have policy implications for professor kerr and anyone else who wants to weigh in. ,ts respect to the advocate there is an appeal to that. I think it is much more complicated in the implementation of most of the bills or proposals recognized. As i have been thinking through the many levels of details about how this would be implemented, to my mind, lots of sub questions turn on whether the advocate is someone with procedural rights in the advocate in the process or to give theed upon impression of law for the courts benefit. View about what it is like as they would have a in everyparticipate single aspect of the proceedings to see every single paper presented to the court . There was discussion about the back and forth that goes on between the lawyers and the government. Should the advocate be privy to all of that communication like they would in a regular political political process or what . Do you think whether the person has Political Rights or not dictates there is an article three question . So on the policy question, it is not obvious to me that the details would make a major difference. Part, that depends on what the role is of the special advocates and when they are brought into the case. Assume were thinking of once in a while there would be a particularly significant issue in which we would want a special counsel. You talk about those challenges. Once all of the facts are out there, at least for the council, it is not obvious to me is that much of a need for the procedural rights. That may be a question mark would be better able to answer. It is not clear to me giving procedural rights would make a difference in creating this. For example the government did not give access to the special advocate on special pieces of information. Does the person have a right to it . Rightare the kinds of that a party in litigation would have. What the person really be called for expertise but not participate in truly adversarial way. That is one of the basic questions. I suppose there are questions to you have litigation over the right was fully complied with . The criminal setting like a brady violation. The litigation over the major issue leads to litigation over the sub issues. Think is ad practical question of how likely that is to interfere with the core function of the council. I do not have a strong sense of what the right answer is. Wherek it boils down to the judges of the pfizer court take this as a priority in make sure the special counsel is receiving the information or something that would not be a priority . I would imagine of establishing this is an important priority, something the council is entitled to might make sure the pfizer court judges do that without requiring the issues. That may just depend on how it works. I can think of exit this just efficacy in aikens. This was sufficient to converse in because they could not undertake the responsibility without the information. Seems like a similar procedural and without a direct. Too think there are issues work out. It would depend on whatever you call this was this position. All of the issues become much more joint. I think there would be no be able that they would to appeal, for example, denial by the fisa court, or if you dont, they just have abstract proceedings. And then it would be the courts response ability and the courts ability to hold the government to account. To return toke former congresswoman harman and ms. Pell. The challenge of the authorization that authorizes secret activity, it almost seems like a contradiction. How do you address laws that we dont want to talk about in public . Democraticke a fully function and the government will fully comply, but how do you write about things that the government doesnt want to talk about . We can talk about the purpose of the program in the framework for the program. Certainly, i recall very specifically in the debate on the fisa amendments in 2008, that is what we did. Maybe members of congress for not paying much attention, but it was out there on the airwaves what the issues were. Certainly, the telephone metadata had been disclosed by the New York Times and then partially declassified by president bush in late 2005. There was conversation out there. Congress can do that and that should happen. There could be public hearings as there are now public hearings about competing versions of the lawstial fixes for the that we have. Yes, a portion of this is classified. Exactly how it works is classified. Why do we want to tip our playbook to the bad guys . That can be explained to the public, too. Want show that americans conflicting things. One thomas they want there but they really are not conflicting things. One, they want their privacy protector. Secured also want to be and they want laws to catch the bad guys that have plans to hurt us. The debate about purposes and framework is properly in the public domain. It should be made clear in the of how the watch works will be kept classified because we dont want to tip our hand. But again, if there is adequate safeguards and there is transparency in disclosing, as has been proposed, how many searches have been made, how Many Americans were involved, what were the outcomes in a bold way and not compromising privacy, then people should be comforted. And one last point. If we dont do this. If we blow up the Collection Program totally and we say we are going back to the Law Enforcement model and only after something happens are we going to go after folks, as in a something really bad happens and oh by the way, it could happen even with this program. The pendulum will be going the other direction. We will start collecting all kinds of stuff, possibly without the safeguards that we have else in properly now. Any additional thoughts . One additional thought, and i will borrow from criminal investigative authorities. Timentext, it took a long to be able to have a good conversation about how to amend the statute to deal with location data. Part of that challenge was there were not a lot of opinions by courts at various levels discussing how government thought under what authorities its ability was to collect data. Nevertheless, after many opinions, analysis came out. There are five the Court Opinions that are declassified or someone eyes summarized. We have conversation with fax and legal analysis to have a dialogue. Members can talk without disclosing classified information. And stakeholders can bring concerns based on what they have seen. It will take a little while, but that is one way forward. Earlier, you mentioned in 702 providers ability to challenge the program, but not the specific tasking orders. Do you give that as a shortcoming of the statute . To be frank, because it has never been limit litigated, it can be argued both ways. I would have hoped that a provider would try to mitigate it from either direction. I do think any opportunity for more presentation of adversary argument in the fisa court, at least after the government has been able to obtain the authority is worth pursuing. And we did not hear anything contrary from the government this morning. Whether you would put that on top of a provision for some kind of special advocate is an interesting question. You could potentially have a redundancy problem. But in the absence, i think it would be a relatively easy sell to congress to do that. I think a harder sell is to get recipients to actually use it. That is a question we are pursuing as well. Weve got 810 more minutes. Is, forrst question professor kerr, i wonder if you of 250he present status was originally not known to us as an operation for many years before it became publicized. Now it is a deal. We know it is there. There are several proposed reforms on the hill. And the question is still there at least one of the bills says, stop the program, moved to delay the bill, move to a different way of doing it. If youre two presets that you named out earlier, namely sunset and the rule of lane in the and the rule ofity lace there. Any there is no now. But is there a principle there that could apply e that could apply . And my substitution for sunsetted in 2015, i think. That provision will have to lead to a debate at some point over the next two years over whether this program is desirable or not and the government will have to make its case. We could wish that it is something that will happen in the next few months rather than two years from now because the debate, of course, is current now, and who knows what the picture will be then. But the sunset provision does lay a very Important Role over the next two years in figuring ultimately, Congress Answering this question of whether to approve the bulk Collection Program, and if not, then what are the alternatives . Your original explanation for the rule was, if the court got something that appeared to be a novel interpretation, or appeared to be at the extreme edges from an interpretation, they should tell government to go to congress and get a application. Does that have any application to the present situation . I would think that the answer would be that they would not it under section 215. ,ven without a rule of lenity just considering it a 5050 question. Already, we have been putting the difficult burden on those who are trying to amend in this for some kind of in place. Nity as it comes up, do you think that is a point at which the rule of lenity might fly echoplex just to be clear might fly . Just to be clear, that by default adopt a narrow interpretation of the statute rather than a broad interpretation of the statute. I thought you had suggested that when he came to fisk in the beginning and im just saying, does that have any application for reauthorization . , go toy would say congress to get a specific authorization. It could certainly enable the fisk to back off of an earlier interpretation if that is in place. Quick question. A quick one to professor vladek. 702 is kind of a competent a program. If you can speak for yourself or any of the ngos you have had how would you characterize the main concern of outside groups about the way 702 operate . I think we all agree that they had congressional authorization to begin with, so it is not a 215. I would not speak for anyone other than myself. That is good enough. My biggest concern about section 702 is the volume of communications of u. S. Persons that are, at least ostensibly available to be picked up. Contemplate, based on my understanding of our technological capacities, the collection of data that on a scale that makes the incidental u. S. Communications acquisition not just likely, but certain. Theiggest concern is that unintentional environment is a bit this ingenuous. How would you correct that . There are a couple of possibilities. They all get to the same place. One is, not to allow the government to file for a directive if they have reason to believe that a certain percentage of the intercepted mutations will actually involve u. S. Persons. One is to not just require those requirement, but what those requirements are. The threshold issue is that it is just too likely that communications are being accidentally picked up, or it incidentally picked up even when the government cannot go back go after them. They need to scale that back. Professor, did i hear you correctly to say that you do not think section 702 bears the weight that has been put upon it in terms of authorizing the bulk Collection Program . Did i catch that . Referring to section 215. Yes, section 215. That is your view . On the understanding of the current statute, i can say that when the news was disclosed that the bulk Collection Program had been authorized under section 215, i scratched my head on how on earth they had gotten their based on the statute as it was written, which is an understanding of the grand jurys subpoena power. And the understanding was that it was only power for subpoena for the grand jury documents. And i imagine a prosecutor trying to defend a grand jury subpoena for every piece of information in the United States and not getting very far, to put it gently, before a judge if there was a case of a motion to quash file. Possiblehink it is based on the arguments put forward so far. You have written about issues of minimization in the context of government acquisition of in the tech context. About have thoughts contexttion in the fisa voting on content collection . Particularly in the context of reports have been we alluded to them this morning, that the government collects stored data in transit. Because it is being moved from server to server. How do we what are your thoughts about building a minimization structure that would be constitutionally sound side addressing stored content, either effectively in storage or cap stored while it is in motion . That is a difficult question because the meaning of minimization in a National Security context is different than in a criminal setting. In a criminal setting, you are just making sure that them the information is never discussed by the government, never disclosed. And in the other context, it is just a matter of how long it will be in the database. We are more comfortable with the idea of being in a database somewhere, subject to when the database is going to be queried. It strikes me as such a different question that it is not clear to me that the same principles should apply. I would also point out that, for the opinion by the judge in some of these issues in section 702, his constitutional analysis struck me as one possible way to approach it, but there are many other ways to interpret the same issues. There are a lot of complicated issues raised by how broad the surveillance is, how broadly you take the foreign intelligence exception assuming that is an established exception. There are a lot of murky questions that would regulate that. It is much more complicated than in a similar criminal setting. Go would you say that we are possibly bumping up against constitutional limits if there is such a different minimization in a criminal context is constitutionally premise. It flows from the scope of particular requirement. Constitutionally based, could we be running up against