Subpoenas without Court Approval for documents relevant to an authorized inquiry. In addition, grand juries have authority to subpoena the records potentially relevant whether a crime has occurred and the grand jury also dont require Court Approval. In addition to for the amendment doesnt require a warrant when the government seeks purely transactional information or medved ai as the states content of communications. This information is voluntarily made available to the phone company to compete the call and for billing purposes and for the courts have therefore said a reasonable expectation as private. I would stress however section 215 is more restrictive than the constitution demands because it requires the approval of the federal judge. While the medellin is extraordinary in terms of the amount of data required its also extraordinarily protective in terms of the strict limitations placed on accessing the data. For these reasons i think the program is entirely conducted in a manner that appropriately respect the privacy and the Civil Liberties of americans. Thank you. Thanks for the invitation to participate. Since these programs were disclosed much of the public debate has focused on issues of policy and i think thats understandable. No government has ever trained this kind of surveillance power on its own citizens. Until quite recently none had the technological capacity to do that. We need to think carefully about how the exploitation of the technologies could affect liberties that generations of americans have fought to protect. What i would like to underscore today is the surveillance programs are not just on why is the but they are unconstitutional as well and i would like to focus principally on the 215 program with the hope we will be able to return to the seven note to leader on a. Under the program the nsa collect the data about every phone call me or received by a resident of the United States. They are collecting the medved data as well making the notes of every email he or she receives. The program is a massive dragnet, one that raises many of the concerns associated with general warrants that is many of the concerns have led to the adoption of the Fourth Amendment in the first place. You might say that the orders are general warrants for the digital age. The president and the dni emphasized the government is collecting medved data, not content. But the suggestion that the content is beyond the reach of the constitution is wrong. For Fourth Amendment purposes the crucial question is and whether the government is collecting dennett data or content but whether it is invading the reasonable expectations of privacy. And here it clearly is. The recent decision is instructive. In that case a Unanimous Court held that longterm surveillance of an individual location constituted a search under the Fourth Amendment. The justice has concluded in Different Reasons at least five justices viewed the surveillance and french and reasonable expectation of privacy. Justice ensured trekking in and Vegetables Movement over a period of time allows them to generate and quote a precise comprehensive record that reflect the wealth of the detail about her political professional religious and sexual associations. They are taking place under the section 215. The records can reveal personal relationships, metal issues, political and religious organizations. The data may be more revealing allowing the government to learn which websites a person visited, precisely which article she read, who she corresponds with and who those people correspond with. The surveillance constitute a search for the same reason the longterm surveillance of the location was found to constitute in jones. It was found unconstitutional in jones was narrow and shallow than the surveillance taking place under the section 215. It was meant to further a specific criminal investigation into the specific crime and the government collected information about one persons location is a period of less than a month. Its an indiscriminate program that is already set up the communications of millions of people over a period of seven years. Some argued section 215 the program under section 215 days lawful which upheld the criminal investigation. But the pen register in smith was very primitive and attract the numbers being dialed but it didnt indicate which calls were completed alone the duration and the surveillance was directed at someone to the cussing will criminal suspect. The police or not casting a net over the country. Another argument offered in defense of the program is that the nsa collected immense amount of information, it examines only a tiny fraction. But the Fourth Amendment is triggered by the collection of information not simply by the clearing above it. The same is true of the First Amendment because the Chilling Effect of government surveillance stems from the collection of information not nearly the analysis of it read the constitution isnt indifferent to the governments accumulation of the quantities of Sensitive Information about americans lives. Neither should the board be. Its worth remembering in the context of that other countries have inspired a total awareness of their citizens associations, movements and believes. The experience of those countries serve as a caution, not as a road map. Thank you for inviting me to participate. I look forward to the questions. Thank you. Thank you for inviting me and giving me the opportunity to participate today. I want to take this opportunity to raise some overarching concern is i hope the board will address before making specific recommendations about the necessary changes to the section 702 or 215 and begin by quoting the senator who in 1974 as the author of the privacy act noted that the more the government knows about us, the more power it has over us when the government knows all of the secrets we stand naked before official power the bill of rights then becomes just so many words. I think it is not debatable secrecy increases the danger that the government will over reach. Nor is it debatable but the foreign intelligence activities depend to some degree on the secrecy and that a democracy must continually work to figure out ways to provide for the National Defence while respecting Civil Liberties and preserving the constitutional government. The increase in technological surveillance capabilities, global connectedness and reliance on Electronic Communications of daily life has made during this more complex and even more important. I want to ask, however, whether or not the expansion of the government surveillance and secret legal authorities especially in the last 12 years requires us to ask whether we are witnessing the serious erosion of our constitutional system of checks and balances and the system of the secret law decreed by the courts, carried out in secret, enabling the creation of massive secret government databases on americans personal and political lives. As you know quite well the system of checks and balances relies upon first the existence of the conference which engages in and is influenced by a public debate. It relies upon the existence of courts, which have to slides to the question and know their opinions are subject to appeal and subject to public critique. And the executive branch who will be called to account should they ignore or violate the law. Fundamentally all of this depends upon the existence of an informed and engaged press and public. So why does it matter . I think it matters fundamentally for two reasons. First the system is set up in order to prevent the government from breaking all and to ensure that if it does so that will become known and the executive branch will be held to account for doing so. Second, the system is meant to prevent the government from using its surveillance capabilities to target its political opponents, to kill the political dissent and limit the political debate and options in this country. This is not a theoretical concern of course in my lifetime. It has happened many times already in this country. Perhaps later on i could detail what i found to be the shocking revelation of the history of the programs beginning in 2001 and resulting in where we are today. We only learned from unauthorized leaks that there is at least one secret opinion authorizing the massive collection of telephone that the data and we still dont know what the secret list all ages about the collection of the massive amounts of internet mehdi the although we know that presumably this Administration Stopped that. We have no idea whether or not the law would permit that to resume. I think the question we need to ask is whether or not the system of checks and balances needs to be reaffirmed so that it acts as a safeguard to these harms. There is the history of the date on the issues over the past few years demonstrate the debate has been incomplete. Its been informed by inaccurate information about the government. Its not deliberately. Finally, i just want to know that ive worked on these issues for almost a quarter of a century. And i think that probably of the many Civil Liberties and voices that have been raised to the programs i am maybe one of the least likely to be labeled an alarmist. I know that you had more you want to get to that any of the panelists and in the public can submit written comments to the board so if you like to submit, you are welcome to do that. Judge robert some . Thank you. I should probably first state that i am a member i am now and have been a member of the Security Committee of the constitution project which wrote a report in september of 2012 expressing some alarm about these programs and i signed the report and stand by it. But its not primarily what i want to talk about today. I did sit on the court for a few years. I asked to be appointed by the court frankly to see what it was up to. And i came away from it deeply impressed by the careful scrupulous work that the Justice Department people and the nsa and the fbi agents involved with it did. The fisa court is not a rubber stamp. The number of how many warrants get approved do not tell you how many were sent back for more work before they were approved. So i know firsthand, and i wish i could assure the American People that the project process has integrity and that the idea of targeting americans with surveillance is anathema to the judges of the court to which they call the fiske. But i have a couple of related points to make to the first, the process is ex party which means it is onesided. And that is not a good thing. Second, it now includes programmatic surveillance, and that i submit and will discuss for a few minutes i do not consider to be a judicial function. Now, judges are learned in all and all that. But anybody who has been a judge will tell you that a judge needs to hear both sides of the case before deciding. Its quite common in fact it is the norm to read one sides argument and think that sounds right until we read the other side. Judging is choosing between adversaries. I read the other day that one of my Court Colleagues resisted the suggestion that the approval process accommodated the executive or maybe the word was cooperated. Not so, the judge replied. The judge said the process was at adjudicated. I very respectfully take issue with that use of the word. The ex Party Process here is only one side. And what the fisa process does is not at adjudication. It is approval which brings me to my second and closer related point. The approval process works just fine when it deals with individuals applications for surveillance warrants. Because approving search warrants and wiretap orders and trap and trace orders and foreign Intelligence Surveillance one at a time is familiar ground for judges. Not only that but at some point a search warrant or wiretap order if it leads on to the prosecution or some other consequence it is usually reviewed by another court. But what happened after the revelations in late 2005 about the nsa circumventing the fisa process was the Congress Passed the Amendment Act of 2008 and introduced a new role for the fisk for the surveillance programs. That change in my view turned the fisa court and Something Like an Administrative Agency which makes and approves rules for others to follow. Again, that isnt the work of judges. Judges dont make policies. Ave review policy determinations for compliance with statutory law, but they do so in the context once again of the adversary process. Now, the great paradox of the Intelligence Surveillance process of course is the undeniable need for security. Secrecy, especially to protect the National SecurityCommunity Calls sources and methods. That is why the Supreme Court had to refuse to hear Amnesty International. The plaintiffs couldnt prove the communications would likely be monitored so they had no standing. That is a classic catch22 of the Supreme Court jurisprudence. But i submit that the process needs an adversary. Its what the aclu or Amnesty International perhaps itself could have a role as a kind of institutional adversary to challenge and take the other side of anything that is presented to the court. I would like to focus my remarks today on when the authority of section 02. I would like to focus my remarks on the act and section 702 that was described earlier. The recent disclosures regarding the program have raised questions in some quarters about the appropriateness and the legality of the international with the Internet Communications traffic. With some expressing surprise the collection of that type and scale is taking place. In the view of the Amendment Act and as the record reveals however that the internet collection appears to be exactly what was contemplated when the Congress Passed the statute in 2008. I would like to take a moment to remind ourselves about the act and the reason it came into being in the first place. In 1970 to congress created a process by which electronic surveillance of the foreign powers and agents must first be approved by the court to be in doing so the congress recognized it had to balance the need for the judicial review process for domestic surveillance against the governments need to conduct them overseas for a constitutional protections do not apply. They sought to accomplish this by opposing the statute surveillance directly against persons within the u. S. And leading the Intelligence Community free without the undue burden of the court process. With the changing technology over the years since of this past however that foreign domestic distinction started to break down and the government found self expending significant manpower and the applications for the surveillance against persons outside of the United States the category the congress intended to exclude when it imposed the process requirement in 1978. As the problem got worse particularly after the 9 11 attacks, the government assault increasingly unable to cover its surveillance needs. Congress to its credit took up this issue in the spring of 2007 and over the next 15 months or so the numerous of officials including steve, rather bury myself and others spent hours testifying meeting with members and staff on the hill. And after a thorough analysis and deliberations the congress provided relief in the form of the Amendment Act which passed in the summer of 2008. Section 702 created a new process. The new process by which categories of support and surveillance targets can be improved for surveillance. Under the process the attorney general and the dni provided and will certifications identifying the target categories and certifying that all statutory requirements for surveillance of the targets have been met. The government intern designs procedures which are the operational steps that it takes to determine whether each individual surveillance target is outside of the United States as well as the procedures david described that limit the handling and dissemination of any information relating to u. S. Persons. The government then submits the certification as well as the targeting procedures for review by the court and the Court Confirms what theyre all stitch it really required steps have been taken in compliance with the Fourth Amendment. This process succeeds bring the operation back into line with its original intent. It supervises the use on many u. S. Person here or abroad or targeting any person believed to be inside of the United States to be conducted pursuant to an individualized court order. However it allows the government to conduct surveillance of the target overseas without the need to secure a individualized Court Approval. And it does so at the same time giving the court and Important Role in assuring the authority is used only against those persons who reasonably believe to be located outside of the u. S. In addition, the faa tasks various levels of conducting significant and meaningful oversight over this authority. The Authority Procedures and oversight preside have been in