happy to sign your books. [applause] [inaudible conversations] >> i have a leg to welcome you here tonight to the enthusiasm for issues of our importance to our country that we find of interest we're glad to hear hitler dash have you here sweltered over to the moderator. >> my name is jim and i teach at northwestern university school of journalism and i will do the moderating. and the co-director for the national security journalism initiative. and the chief operating officer of the new zealand institute. founder of redbridge security and is a former senior official in part of home and security. and harvey is part of the american bar association national task force. so whistle-blowers leaks and the media. with american bar association in collaboration the first is the national security law of a guide for journalists and scholars the three of us were coeditors were written by lawyers that are experts in their field of national security. and over the last six years. and to give you some definition of what the panel is discussing today. in government or private matters with corruption or a threat to the public interest such as fraud or safety violations. and they make allocations since internally or externality to regulators to the groups concerned about those issues. whistle-blowers are protected but can face reprisals under others. i want to be exact about the definitions. is to have access to information that they are not authorized to disclose publicly to the media. due to the need for speedy publication or because it would not have been made public. there are many motivations leaks can be intentional or unintentional but they our efforts to manipulate coverage and there is the third category that we will not talk about today that is buying. a spy is a person employed used by one government to obtain secret or confidential information to the detriment of another government or industry and that is beyond our brief here. this is whistle-blowers and weeks of the american media. there will be-- fox available and the authors will stick around to sign them after the session today. and we will have time for questions after we have a discussion. . . so, the pentagon papers pulled a lot by the news media as a standard for the proposition that the government cannot restrain the media prior to publication even classified material. however, one of the lessons that we also can take is that the news media can be prosecuted post-publication. now we are going to move to 1985. a naval analyst named samuel morrison was convicted under the espionage act and at the time he was the only government official ever convicted under the act for giving classified information to the press. he had been an analyst at the naval intelligence support center was also a freelancer for the defense weekly, british publication. he gave the defense weekly photographs of the soviet aircraft carrier having removed a secret label from the photos. the magazine published the photos. it was convicted under the espionage act. his conviction was upheld making it clear that the release of classified information to the news media could be punished to the same degree as the release of classified information to a foreign enemy government. president clinton pardoned morrison at the end of his presidency. moving into 2000, another kind of important case involved an analyst named lawrence franklin. as part of a plea deal on the charges, he helped the fbi with investigations of two people to whom he had provided information , to employees two employees of the american israeli public affairs committee. their names are steven rosen and keith. they were the first civilians that didn't work for the government to be charged under the espionage act. some of the information that was released related to the potential attack by u.s. troops on iraq, al qaeda terrorism in central asia and other similar information given from franklin the employees would convey the information to members of the media and to the israeli officials. they were accused of aspiring to obtain classified information and disseminate it to the media and the government and that was in 2005. a federal judge the federal judge had to examine to what extent individuals could be charged under the espionage act when they were not government employees. the judge found that the prosecution would have to show the information was potentially harmful to the national security and the defendants knew that. eventually the case collapsed. one of the more important cases that is ongoing is a case that started in 2006 with a publication by "the new york times" reporter who i might know he published in his book the plan to sabotage iran's nuclear program. the federal government tried to find out who the source of his information was. to this day he is publicly not disclosing though it is known that the cia officer that gave him the information was jeffrey sterling. he was arrested in 2011 for leaking the information. despite the fact that the information is now known, james is still a feeling this code appealing his conviction for not revealing his source and that is kind of an ongoing press controversy. moving to the kind of close we end with another case that involves another named james rosen of fox news. and this involves the prosecution of another state department contractor named stephen kim. he pleaded guilty in february to one count of disclosing to the national defense information to james. what kim disclosed was information about u.s. intelligence related to north korea. it was responded to the un security council resolution by conducting a nuclear test. the case got a lot of attention in 2013 when it was revealed that the justice department has told the judge that he might be liable for conspiring to espionage the act. the government did not intend to prosecute under the espionage act, but instead he was using the allegation that he was a conspirator as a technical staff to get his records. when the law was clear that the government shouldn't have been able to do so the prosecutors realized that they couldn't use the various electronic privacy acts, so instead they set about creating a scenario in which he was an aide and a debtor under the espionage act. one of the things that's interesting about this particular case is that the fbi affidavit in the case makes it clear that the fbi has the ability to track and extensive amount of information about federal employees directly into the reporters that interact with them. the prosecution clearly had overwhelming evidence that kim had released the information that it wanted more i guess i would argue. the affidavit was submitted to justify the search of the e-mail on what seems clear with a fishing expedition. this information about james came to light after a much bigger sweep of journalists on records were revealed in an unrelated case involving an associated press story. you may remember this about a plot in yemen. in hunting for the source of that information, the fbi obtained records covering a two-month period made from the phones that more than 22 for numbers but the bureau's and down the east coast including the reporters phones and cell phones. after an outcry from the news media, the attorney general holder said his office doesn't plan to prosecute journalists as co-conspirators in the cases. then we move into the edward snowden and that brings us down to the world of the weeks. and i think that we are all familiar enough in the case that i don't have to go for the history of it but i would be happy to if anybody wants a quick review. >> thank you. >> the people involved in this are either heroes and patriots or the lens and traders. i'm sure that you have your own opinions about each of these cases. now i would like to go to jean and talk about the first amendment as well. >> i'm glad you didn't pin me down to which of those i'm sitting in. but we take a different attack to be able to follow the history in the definition to be able to take a look at the attention that i think has always existed in our society between the free press and the legitimate national security concerns of the government and for the most the american public. it's not anything new. we saw it at the beginning even before it was a republican republican would was being disclosed about the operations of the crown in the colonies. it was disclosing the source of information for the new york herald he was questioned on the source of information about the draft of the treaty on the end of the war with mexico and actually that wasn't an exact parallel because that was the senate trying to find who among them leaked because that kind of tension in 1848 and that carries through. it was wisely prevented in my contribution. that is really the answer to why nobody has ever been brought to bear. there were some legal matters in the issue of the public opinion but in truth if you just read the words of the statute there is no exclusion for the media or the reporter who has first-hand knowledge and there firsthand knowledge and there is no exclusion for the reporter who is forced down the line and it simply says if you do this, this results but in truth that isn't how it works. part of it goes back to the case that was brought clear and then there is a play in the joint statute at least in the interpretation on the ultimate intent to harm that there is a sort of you can do this if you don't intend to harm the interest of the united states and i think the press either formally or informally relied on the part of the defense and then frankly i think there is the presence of those to whom we are all ultimately responsible and that is the american public. if you look back and i may draw some challenge from the leader speakers at the collisions over the disclosures of information that's been deemed classified or not known for the national security purposes and the ultimate harm of the republic at least as far as we know some come up at the greater good of the public in knowing the knowing of the existence or the history in some cases and in the disclosure of the free press. i'm not unmindful nor do i wish to be in the threat that can happen from the disclosure of information and the many years in the many years that was defined in very hard terms in terms of easy to understand. it's what they call the free press if you look we look at the current history and i will start in the contrary and views by saying the equation tilts in favor of the disclosure as far as we know. it's much of what we know them not to have known it on a policy level. if the technical procedure to allow the process to records from the press side of the other defenses that has been double work if you will it really comes out of a cell phone case has been if you are not the instigator or the party to obtaining the documents come you didn't hold the door open for the person to go around the desk. you didn't offer the money to get them, but they came in for those of you in the program what this is but over the transit to the small window. but if it came over coming to essentially were not subject to the obtaining of the documents. now the espionage act again black-and-white might allow for the prosecution simply by having them, but that's not been done. it was the court of law and public opinion. too much of the american public in this whole recent kerfuffle has been but that is now widely acknowledged as a fishing expedition on the associated press in which a vast amount of knowledge or information from a third party tracking phones and other kind of material were obtained into the government broke the rule if there is a reason for skepticism throughout our history, the healthy skepticism of cynicism but skepticism, there is this a cynicism and when the justice department in the wake of watergate and the pentagon papers set up with the knowledge of the press certain guidelines of the law were the statute but the guidelines on how to proceed to obtain information they they want to they went ahead and violated them. succumbing to have a sort of gathering storm in the sense of those of us that are advocates for the press saying we start getting towards this prosecution under this co-conspirator lets take away some of the defense. without the warrant and the guidelines you begin to feel this encirclement. i know it's hard to find the press so i will stop there, it's hard to define the press because it isn't a brick and mortar but there is a substantial free press that exists and i will simply say those don't meet my test of journalism. we want a limited government but effective government and so paul might address that next. >> first thanks for having us here. it's great to be able to bring a book like this to the museum. a second of course there's a. and artificiality to the debate. if you want a good summary that gives you all of the law and both sides of the argument is that the book this is the book for you when you are expressing. it's already been discussed in the case first. the james rosen case involved at the disclosure of the ability of the state department and the intelligence community to know the intentions inside of the bureau of north korea. the news report was a report that if the united nations engaged in a particular action in front of the security council that north korea would respond by detonating another nuclear weapon. this is obviously very high quality information from a source or sources deeply inside of the bureau. it's never been disclosed whether that was the signal intelligence or human intelligence that the intelligence community has told us is a sense mr. kennedy v-victor mr. rosen and felt the value of publishing this in the press has gone dead and we no longer have that insight into the actions of the bureau. has anybody died because of that? may be the source if it was a human intelligence source in the concentration camp in north korea, but no. can you imagine any number of situations down the road we would welcome such a force inside of the bureau say on the brink of the north korean invasion of south korea next year or the year after that, you can. and we now no longer have that. that i think is a really great expression of the fundamental tension between the need for secrecy and the need for transparency. it isn't resolvable because except for the very clear cases of troops in dating -- the press report forgot that we were going after osama bin laden and brought it back tomorrow, nobody would publish that. they would hold back into probably try to trade it for an exclusive but nobody would publish that for a day. but those cases are few and far between and very clear. what we do not understand very well is the collateral consequences of disclosing things like the existence of the source. and we can't because it is putting the counterfactual of what would have happened but for this disclosure. what would have happened about four the disclosure of the capability to listen into the chinese computers. we don't know the answers to those. so that brings me to the second point is i think worth discussing and it's the one that fundamentally who gets to make the decision and the judgment of whether the transparency plus the value is greater than the likely collateral consequences of disclosure at first to the national security down the road. is it government or the press likes for three years we've had this tension between the two and it's been a tension that was played by the firm set of rules in the brick and mortar with kind of traditional understandings of their obligations and the traditional understanding of secrecy. they said ten years ago the rules were simple. the press would take this information and make an independent judgment of whether or not it demonstrates the david sent by the government and if it didn't meet any of those if it was just a secret disclosed, they wouldn't print it. today we have changed the paradigm into the large degree that is a function not so much of the brick and mortar press that the democratization of the information distribution function through the internet means like that's so now instead of who gets to decide if the government or "the new york times" where we could have an interesting discussion and everybody reaches their own decision we are faced with a situation that person gets to decide as an individual actor. it's anybody else that feels grieved by whatever action is being undertaken and that is a very destabilizing kind of situation. i often think of this as the context in my own personal example i write for a blog we have about 3,000 readers for that's not a big outfit led by the a couple of times people have given me information on the condition that i do not disclose that i am sort of thinking what qualifies me to be a journalist to be in the position to promise that sort of confidentiality. i didn't sign up for journalism school. i'm a lawyer by training. the only thing that does is that i own the key to a blog which means the password in of a user name and that all of a sudden gives me or at least appears to give me a panoply of power over the question of whether or not this information and happily none of what i'm being given as classified or chop and change we should be publicly disclosed or not. and when the dynamic of the situation changes in that way it becomes hard to change the traditional rules and the espionage act and the whistleblower laws and even the first amendment and apply it in this new context where the freedom of the press that is so revered in this country in the first amendment it's very hard to understand when the question is above the law. it's who is the news out what outlet and how to redefine what the press is. i will close by saying what about the best exemplifies is the destructiveness of the existing paradigm both of the government secrecy end of the traditional newsgathering is and we see it in the intersection of her time we don't know the answer as well as we would like any more. >> some people would define a journalist as someone that engages an act of journalism. so i suppose you could qualify. >> anybody with a blog as a journalist and we produced it to the entire world population. >> and some would argue that. but besides the question of who's a who is a journalist, there's the question of technology about the big data and smart data. >> i am just a simple attorney. first i want to thank jean and the president and ink you guys for doing this and i want to thank paul and tim because this started out as the chair of the standing committee on law and the national security and we were the oldest standing committee and we started by some that some of you might remember as justice powell that turned out before the justice and was a member of the military intelligence and was actually involved in the na, which would bring the information to the officers in the field in world war ii. he was very fond of making it clear and he broke a quote in the constitution, article one, section five, paragraph number three that states each house shall keep a journal of his proceedings in from time to time publish the same accepting such parts. very deep in the constitution is the notion that the government would require secrecy and the founding fathers. they had a lot of the coding as it was in paris so the concept of the government having to be secret. i think what we are living through is an information data resolution. they had a strong sense. we do not have a similar firm of understanding of the press per se. i sort of come from the government side and she was coming from the journalist side. how you understand the smart data and the smart analytics and how we are redefining what we call micro- targeting come into this phenomena is transforming not only journalism, but the example that we get is that during the olympics, the chinese were very concerned about air quality that was making public to the way of the world that they had this under control. so the journalists, but they did is they took some spaces and put them on the back of bicycles about 30 or 40 people and have them ride to different directions and then they got independent data separate from the government and then produced their own stories predicated on that information. so, one of the logix leads to say certain we used to say certain people were able to control the information. the government is to be able to control information and journalism used to be able to control information. i think "the new york times" has all of the news that fits. [laughter] but it was only -- if it didn't make it into decline i was growing up than it was not a bona fide big story. if it didn't make it on cbs and walter cronkite it wasn't a big story. there was an incredible amount of power and control in the press and an incredible amount of control in the government our thesis in our chapter is big data is changing the phenomena. and it's hard to control that information and that you were giving up the information willingly. how many of you did a search in the last week raised your hand. so it is almost like 95%. how many of you bought something on amazon in the last week? about half. when i used to be in the government, what we found very interesting is as long as we had a subpoena, the amount of information that you were giving it to yourself, the amount of information controlled by the private sector is moving forward to the extent of the state on our chapter which is that both the public and the private are now going to be pushing for the interest. so how often you go on a website and get extraordinary number of requests for information or add for things you might be related to. the famous story is that there was a young woman doing a search on google looking at a variety of products and after she started receiving ads for pregnancy. and her father was very upset about this. it went to google and said this is inappropriate. then about a week later the individual came back and said i bother is pregnant. one can't help so much about what you do on the web so our position is about what's going on with the journalist and the government and it's actually changing in a different way. when we forget the american bar association and we had a small book with a couple of years ago which was with the director of the national counterintelligence joint effort, and the title of the book was no worse it. you can get it at national security which is our website. and our contention was it's harder and harder to keep a secret because of the digital signature left on so much of our activity. it's hard for us to be able to hide things so we think that there is a time value on secrets and that we know a certain secret loses their value after a certain amount of time. some you keep because they are in their thing. the current debate over section 702 of the foreign surveillance act which if you are a foreigner we go up on foreigners as we used to say i'm shocked there's gambling going on or the effect of the accumulation would constitute information. so the large debate that we are now engaged in this issue is does the metadata of the privacy rights. it's defined by a number of cases in this case on third-party information. think of all the bills you receive on all of your activities and realize that these are all held by third parties and with an appropriate subpoena, we the government can gather that information and put together a composite of not only our time and space notion. would you feel uncomfortable if i wasn't able to go and look at how much it took you to go from the passport from section one, two, three, four and find out the only way that you could have made it as if you were exceeding the speed limit and i should be able to give you a speeding ticket for many of you think that would be okay raise your hand? [applause] one believes that if they broke the law they should play to the co-pay for it. you could have anonymity and have a good time. this phenomena of where we are going if we talk about the whistleblower speaks to the media, we think in our chapter we help doctor paul who is another writer here is actually a revolution going on and we have to rethink how we understand privacy, and we also have to rethink who should be liable when they violate the privacy. in the recent period of the notion of banning the kind of fascinated from our side of the government the first had to go through an entity, and that entity was then able to broker that information with the so-called press. he brokered his own deal by directly in number of the press. the next person is going to say here it is in our concern is if the target of the pentagon papers you had to wait into the data date printed in the book and get the book. this is a physicality to that issue is now the ability for hundreds of thousands i will say to you when i visited government and we started funding these issues with somewhat unprecedented the actual nature because the volume that was cut across him through so many sectors and industries people forget that it was just the dod. it was across the board. so with our sense of real engagement conversations about how the new brave world that we are living in turns on the data and how we are going to be able to respond responsibly that it is good for the government and for the government. >> we are going to go to your questions so please identify yourselves and who you would like to ask the question to. >> we have one on both sides. spike when you have 450,000 documents, what is the role of the traditional press because i would suspect may be no one in this room read 100,000 of those documents were maybe 10,000 or maybe two. >> what we are speculating is that there is so much data that what the press does is searchable so if there is an event coming up they just typing the g-8. then there are 45 documents which is an interesting issue. so that's why this has been a slow leaking of information as every couple of months a new extraordinary scoop is made because they actually found them. >> and the technology advances all the time. >> retired journalist and educator. you did an excellent job of setting up i think that is the biggest problem. you have the constitution which has served us well but then you have this 1917 document and you used to quote shakespeare which gives the government unlimited access to things. where do you start, what is the first step in raining again and understanding that the debate has gone on as well as you pointed out in the beginning. where do you go with that? there is a transport of the volume because after another you couldn't physically carry out the printed equivalent of what they disclosed that you would get the money fund drive so we have to address to it first to the government has to do a better job of defining what is truly classified information or not. one of the things that i think encourages is the state of the distressed incomprehensibly classified. we are talking about more whistleblowers but if you look at a kind of disclosures and i go back they were being purchased and somebody discovered that in iraq and afghanistan because of that but there was just -- i isn't it classified information there's no debate over shipping them earlier because of the cost, so we have to do that. we have we have to stop this overclassification. and then frankly the institutions that have the data have to move out of the century but it's not the 21st in terms of protection of the data. one of the great revolutions had nothing to do with the fact that somebody at that rank the circumstance overseas that much information. if you look at the contractor. but they again have access to this data. so to say you fix it, part of me says wait a minute the problem here is my heels of a comprehensive and then you don't even have a handle on it because you have this data. >> that is a great question. we have a chapter. this us back one of the chapters was used. i think that we would all agree that we need new legislation. i think as you all know congress hasn't been at the forefront over the last few years but that is their constitutional role. but we need new legislation and the world i come from a very much agree there was overclassification but now in the new world and it's a valley in seattle but it's scaring me the amount that we can do by putting together an rsi mounds of data and then with those enormous amounts of data find a slight anomalies which we then can exploit. the example that i will give you sophisticated adversaries use mathematical numbers to orchestrate their attacks so that it will only take place over an extended period of time for times that if you saw these from the same internet protocol address and they were done in a way that was inhuman and with the leave the league could give you unbelievable information to the tag line is people used to hide the data. we are now using the big data to find you. so the overclassification if you understood the travel records of a significant number of senior officials in the usg and you gave the travel records over an extended period of time you would be stunned at what you could discern. under the current administration that is public record. so you would be amazed how many people are having meetings that starbucks because officials may be due not want it known that they are going to the white house. it's not important for them to do it or not. the other thing that is dramatic when i look at the audience how many of you play games on computers the age cohort difference of what of my children and grandchildren think of as privacy versus what you think as privacy is driven. so, we are having a transformation of what we think you should generally known or unknown i doubt there's a facebook picture of you have dressed on top of the bar. >> you would be stunned what people put on. this is what is really changing. so we need the commission to start advising the congress and how to rethink the boundaries on this issue. >> i want to go over to this person. i take it that we have changed a great deal and the facebook era has changed. meeting with people outside of the white house has always been the better source. attorney general, first my understanding as part of the legal purposes are concerned about what i did to give legal advice but what is the definition as it pertains to the government to be defined in the fourth amendment unless that amendment is amended later. she said he was on stage with antonin scalia and he asked him cut into her devices be construed as a personal effect and be covered by the fourth amendment and furthermore, that is one question. another thing that i would point out is in the private companies getting the metadata there is a level of consent that i could opt out of the private sector that i could not opt out of pragmatically in relations with united its government being a u.s. citizen. i can't just pick up and get citizenship somewhere else pretty easily were pretty cheaply. that is another issue i can opt out so there are the two. the last thing that i went on as if i do not have a proper understanding of issues where there might be a contradiction between the espionage act and the first amendment what is the premise the most first amendment about that or am i misunderstanding that? spinnaker may be >> there may be several chapters involved here. >> i will answer the last which is one which is the supreme court decided that there wasn't a absolute journalist privilege in 1972. so, the conflict that you've received is at least not one that the courts have perceived. with respect to the personal effects and your personal data testing court decided that one as well is called riley versus california and they said you did have a privacy and it couldn't be examined without a warrant but then i guess the fundamental answer that i would give you is the fourth amendment doesn't express an absolute privacy value. it expresses a contingent privacy value based upon the reasonableness of the intrusion which is an appropriate way of balancing in the same context if they use different language than we talked about the balancing the conflict in the national interest and civil liberties and the courts have spent 200 years trying to figure out the contours of what is or isn't reasonable and i think one of the things we are seeing now is that the rapidly changing technology is kind of getting ahead of the courts keeping up with the understanding of what the reasonableness intrusion is. >> or want to give the audience people a chance to respond to ask a question. but afterwards we will be allowed to talk some more about this. >> i'm the editor of the nonpartisan investigative site in the integrity project here at washington. i'm also an attorney that began my career with 14 years at the current which is the oldest newspaper still in business. i have got to brief factual questions for both sides of the panel that go to the acquirement that need to be vetted and forgive me for using your first name for simplicity but isn't it true that edwards was in fact a former cia and nsa employee who was working for bruce allen in the group? my second question for paul and harvey is here in the historical museum you seem to be creating any to go to journalism school and the publishers didn't go to journalism school. thomas payne didn't go to college. they put out pamphlets that are exactly equivalent. i'm interested in your responses >> when i'm talking about that circumstance we are talking about the function that he was fulfilling at the time and the expectation of the function if you look at the betting that was going on for the contractors versus the active service personnel whose expectations were different. i would also like to say in terms of the journalism and the free press free press i think that it is something larger and the definition that you talked about being able to be under the definition versus the journalist who is somebody that is in the craft of journalism there is a little shorthand going on its good to distinguish but i think that there is a larger ability of americans can anybody by the virtue of saying they are to perform that function and that is never more true than it is here. >> that is the point. i would agree completely that thomas payne didn't go to journalism because we didn't have to be all and the end-all. on the other hand, there were historically barriers to entry into the function of journalism both physical of access to information, capital intensive. her's in terms of getting people to print your stuff, finding printers. all of those are gone right now. the one that i would best expressed is how many express is how many of you own an apple iphone five? everyone of every one of you has more computing power in your hands than the supercomputer ever purchased by the united states of america. it costs $26 million for costs 199 for your apple. that is a resolution in the data processing capacity ability and its transition to which not every motivated person can publish a pamphlet, but they can collect information from anywhere and distribute it globally in a way that is different. >> do you think that it is a profession? >> i don't think there are very your century significantly, so no. >> you just eliminated the need because what costs the profession i have to teach the military colleges the military profession. what is is their alleged expertise and corporate. but the issue of the subject the person that we focus on is the leaking. they never signed documents of that nature so there is an interesting question about our focus on the individual who makes its public. >> i would say that's the whole point of this book is actually focusing on the recipient of the week. this book is intended to one of its main audiences is to make journalists well aware of the law that governs them and the whistleblowers so that they don't put someone in a position that they didn't mean to them in. so, and if i could just get back to the definition of journalists. i think that it's too easy. i think it is a muddy definition these days. and it may be true that as long as the would as the would have a cell phone, you have the opportunity to be a journalist. but public opinion polls and common sense tells you that not everybody wants to be just because you have a cell phone doesn't mean you want to be a journalist or have any inclination to or that you d't

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