Reporters who worked together, not in the middle of the news room. But on a floor, remote from anybody else. Exclusively went through the documents. And after that long process, then moved to the next phase which is trying to put them in some kind of context, to start reporting. In our case i thought, some of what we brought to the table, you know, were our reporters in Silicon Valley who had very good sources on all the companies that the guardian could see, this was a source of controversy within the companies themselves. They had been required to cooperate with the government but whether it was right to or not became a very live debate. We could add reporting fire power on that type of thing as well as inside the u. S. Government and in the intelligence community. Thats a terrific, i think almost sort of textual kind of background. You almost file like it was like to be in those rooms. I want to bring in david and then caas on these legal issues and the response, if you like, with the legal minds in the overnment. David, to you first. Youve been on the inside of these stories. Is something changing . Obviously the scales of stories have changed. What are the challenges legally and where does the First Amendment fit into this . It is a bit of a conundrum because in this country, as was mentioned in the opening segments, we dont have an official secrets act. We dont have clear laws about and you can argue its a very good thing we dont. But on one hand, the criminal liability, what we have primarily is an espionage act that was written during world war ii. 1917. 1917. It wasnt intended to cover the kind of disclosures that were talking about, through the press, to the public. It was to get spies. And for a long time it was thought that thats all it dealt with. That started to change. And in the 1980s, for the first time a source, not a reporter, but a source was prosecuted for leaking information to the press. It was a Navy Employee who was working as kind of a freelancer for a magazine in london, a defense magazine, with the knowledge of the navy. And the condition was that he could write for them as long as he didnt disclose classified information. And then at some point, as he was negotiating fulltime job to go work there, he secretly provided to the editor some highly classified spy photos that were considered very sensitive at the time because it disclosed to the soviet union the capabilities of our satellite cameras or our aerial cameras. And so he was prosecuted criminally. And there was a big debate at the time about whether the espionage act was intended to apply to this type of disclosure, not to a foreign government, but to a News Organization. And he attempted to defend the claim that the law doesnt apply to this kind of disclosure. And his conviction was upheld. But in a kind of interesting opinion, he was raising a essentially a Public Interest, his First Amendment defense, in part, he said, i did this to a journalist, not to a foreign government. Theres a Public Interest here. That was rejected but it was tied to the facts of the case. The court said, he was being paid for. This he knew what he was doing was wrong. He took off the classification before he turned it over. He provided it to them secretly. The way they linked him up was through fingerprints, the oldfashioned way. So they said because of the bad intent and the knowledge of the arm that it would cause, it was not a problem under the First Amendment to apply the espionage act to him. But two of the judges who decided that, two out of the three, said, if you make the same arguments against the press, we think there would be real First Amendment questions ere and it would raise different concerns. So on the one hand we have this very vague law and on the other hand we have this notion that the press is different, that there are First Amendment rights. A long line of cases that say that you cant prosecute the press, you cant punish them for publishing true newsworthy information. Thats kind of a settled principle in many areas. But its not an absolute right, as we learned in a case a few years ago. Theres a balance that has to be done, even with truly newsworthy information. And we dont know how the court will deal with that when the balance is the publics right to know something versus a National Security interest. Never been decided. So we dont know what the risks are. There is a real risk. Because what the espionage act says is that it is a violation, a criminal violation of the law for a person who has unauthorized access, a reporter, if you get National Defense information, its not even classified information, if you have possession of it, the mere possession, the failure to return it to the government, or the disclosure of that can lead to criminal violation, if it is reasonable to believe that the disclosure could harm the united states. So its a very broad law. The government takes the position it doesnt require an intent to harm, it doesnt even require actual harm. If the document on its face could reasonably be understood to possibly provide harm, and in fact, a document shouldnt be classified unless it meets that standard, so you know that if you have a classified document, at least in theory, the mere possession of it is a violation of the law. So it becomes sort of a tricky situation to advise a reporter or a journalist how to handle that. Ut on the other hand, thats the bad news. The good news is, since 1917 there has never been, almost 100 years, there has never been a prosecution of a journalist. We have a very strong tradition in this country of protecting the press. And so there is this uncertainty that thats the little dance we do. So dealing with the situation like this of course, you want to limit the number of people who have access to this so youre not putting people at risk and the basic advice is, if youre going to publish this information, it should be so important that the American People have a right to know and that could you convince a judge, if you had to, that this was something the public needed to know. But its still an unresolved question whether that even is defense. The government has taken the position theres no First Amendment defense to this law and no Public Interest defense. Its a gray area. I want to come back to that in a minute. First of all, lets bring cass in. In august, your approach of having to review this for one of the review panels, can you talk a little bit about how you set out to do that and what you looked at before we get into this . Great. So, we were constituted in late august and it was a Diverse Group with one of the leading First Amendment scholars, hes associated with the American Civil Liberties union, jeff stone. A prizewinning book on free speech, of which hes one of the nations strongest advocates. We also have one of the leading, maybe the leading privacy expert in the united states, a guy named peter swyer, who was the privacy person in the clinton administration. A long standing person in the c. I. A. Who had been acting director in the c. I. A. With hree decades of experience there. He also is strongly committed to a free press and civil liberty. And richard clark, who is counterterrorism specialist, who has very strong convictions about freedom of speech and privacy as well. And then a regulatory guy with some constitutional background, yours truly. So the first thing we really decided to do was to try to learn as much as we could from people in the country. So we did something quite unusual which is we asked for a Public Comment process in which we asked people, basically all over the world, made a global request for comments, and we got hundreds. And while some of them, as i recall, had to do with people wanting to sell us pencils and paper, which we already had pencils and paper, but most of them were substantive and about the issues at hand. Every word was read and they were incredibly valuable. We also had meetings, extensive eetings, with people all over, including people who are specialists in privacy and Civil Liberties, the rights of journalists, got a lot of information from that. It made an impact on our report. We ended up endorsing four principles and i wont do them in exact order because i think the first one im going to mention is maybe one thats most salient today. Which is, theres a lot of talk about balancing, about balancing National Security against privacy. We think in important respects thats misleading and actually harmful. There are some things that just dont count in the balance. So if theres an effort to suppress dissent, to go after people because of their religious convictions, to target people because of their political beliefs, to go after people because of their gender or ethnicity, thats not part of legitimate balance, thats just off limits. Very important to identify a set of impermissible reasons for surveillance or anything like surveillance. And we say in the report that that is a foundational principle that applies inside and outside our territorial boundaries. So the first idea is the limits of the balances metaphors, a way of approaching these issues. The second is by i think a happy coincidence of language. The word security actually has at least two meanings. Two which are crucial here. And they both have a latin root which means free from danger, safe. And that entails both not being blown up or at risk of being blown up and also feeling that your persons, papers, affects, etc. , are safe from government intrusion. Our view is that these two forms of security, which have the same linguistic root, can both be safeguarded and its a big mistake to think that in a free society one can be pursued at the expense of another. One thing were fighting for when we protect the National Security is the other form of security and it shouldnt be relegated to secondclass citizenship. The third idea is that there are multiple risks involved that surveillance calls up. And its a big error to think about only one. So National Security risks are one. And theyre very important to consider and theyre part of the mix. But risk to journalistic freedom re also one. And that has to be considered. Risks to our relations with foreign countries, including those who are friendly with us or were trying to cooperate, thats another. Economic and democratic risks that cut across territorial boundaries, thats another set of risks that might cut in a different direction from the National Security risk in terms of what policies to adopt. And of course risks to privacy which are a central feature of the overall calculus. The ideas were dealing with, Risk Management and the risks that involve operate along a number of different dimensions. The fourth and final principle has to do with the need consistently to focus on the consequences of what Government Policies are. Not only before the fact, but in an ongoing way. So if its the case that you have some policies that were adopted, lets suppose, in the aftermath of 9 11, or a year or two before 9 11, to decide in a way that reflects the best practices of newspapers and businesses, which is to reinvestigate your practices to see what actually are they doing to people . So you may have practices that at one point were thought necessary to protect National Security, but it turns out theyre really not doing much on that, but they are scaring people or they are chilling system of free expression. That has to be known and subject to continuing scrutiny, not just by the intelligence community, as important as it is to the scrutiny, but by a range of actors who include people who arent maybe principally concerned with National Security ut who have privacy or Civil Liberties as their mission or Internet Freedom as their mission. That last principle, that is balancing the human consequences, keeping your eye insistently on that ball, not only when you adopt the policies, but while you reassess hem, has institutional implications. E suggest important changes in the foreign intelligence urveillance court and also important changes in the structure of the executive branch where just to give one example we say there should be a designated official in the white house who has privacy and Civil Liberties as his charge. To have that person in the room, having a convening function and having a presence, can help ensure both that Risk Management operates along the full range of dimensions, and can also ensure the kind of continuing scrutiny that a free society needs. I can just ask at that point, though, the recommendations i think probably went further than some people were expecting you to go. Certainly not as far as other people wanted you to go. So, for instance, on metadata storage. You said it should go to third party or private kind of companies. It shouldnt be kept by the government. One of the other review panels had a slight different review which is that it couldnt be kept fullstop. I wonder why youd stop short on hat . To state our recommendation, we believe that the meta data, that is who the phone numbers are from, and whos calling whom and when, the government shouldnt be holding that data. In a free society, if were engaged in a Risk Management exercise, there are undue risks to privacy and civil liberty with the Government Holding that data. We think that the information should be held privately, which has a safeguard against the risks of abuse which in American History have not been absent. Not in the recent past, not in the last years, but under president nixon and president johnson there were risks from surveillance. And before. So we dont urge that the information should suddenly be held by the phone companies. Thats not what we urge. The phone companies have that information. They hold it for Consumer Protection reasons, in large art. Hey hold it because they dont want to be billing you for stuff that youre not responsible for. In fact, the federal communications commission, Whose Mission is not surveillance, requires that landlines at least, the phone records be kept for 18 months. They hold it either voluntarily or by f. C. C. Mandate. Like your bank has your Bank Accounts. We dont recommend, in fact we recommend the opposite, that the government should be holding bank account records. We are big against storage of all peoples metadata. In a free society thats not what were for. Were against that. But banks have the stuff. They just do. The government can get access to it through a warrant. Thats the system of free society designs. We dont urge that the banks should disassemble peoples Bank Accounts because its dangerous for them to have it. We urge that the government hould not get access to that information except in accordance with the standard legal forms. What we urge here is precisely parallel to whats always been the case in a fourth amendmentrespecting situation. Materials held in private hands and the government has access to it on the basis of an appropriate showing. There are many more recommendations. I wanted to bring back the whole panel. Were here to talk about journalism after snowden. Actually, theres a very important legal point. You touched on it, dave. Which is, you know, we have the director of National Intelligence yesterday saying, well, first of all, two things. He said, people with material should give it back. So, jill and janine. [laughter] do you have a response . Now that you say that. The other thing that he said was, he talked about Edward Snowden and his accomplices. And after a couple of calls, the clarification from his office was, accomplices could potentially mean journalists. Now, given what they were saying about the espionage act, do we even know what the policy is for the Obama Administration . The attorney general in the summer said that in the james rosen case, who is the fox eporter who was had his phone calls sorry, his email taken, he was actually described as a coconspirator in leaks. The attorney general stepped back from that. But theres a great deal of theres a lack of clarity, isnt there, here, about what the actual whether we even have a policy around this . I dont know whether you can respond to that. I can tell you a lot with the Obama Administrations policy with the paperwork reduction act which i was helping to oversee. I can tell you a good deal about our policies with respect to costbenefit analysis and environmental stuff. Apologies. The other i wasnt involved in so i dont have a view of the policy. Let me maybe tie a couple of points and throw some issues out. One of the points youre raising is that if you have a system of free expression, there has to be a basis for Confidential Communications between reporters and sources. Thats one of the things that the privacy and Civil LibertiesOversight Board underscored in their report that came out last week or the beginning of this week. And i think the concern, which is evidenced by all the interest in this, is that the snowden revelations kind of were a wakeup call. I mean, jill is right. We knew a lot of this was going on in 2005. And people have reported on it. But seeing that fisa order that said, give us everything it was the scale, thats whats different. And what were realizing now