through when something comes in and look through collected materials. and deal with what we have and move forward as expeditiously as possible. a new category of information is off limits. and pretend to fully understand the implications, the couple that come to mind will be delayed. you have additional processes you have to go through and some emergency carve out and so on. you have to factor in the reality to lay into the system. there is a gap, several types of gaps, the disinclination for people who don't have facts. -- some type of connection with the we have and look at normally

in this material and other types of material. and create a blind spot and intelligence collection. you have to think about the technical complexity you are suggesting so this is segregated in some way, treat it in some way. that could lead to a training issues. we actually do it in a way that would be different from other types the we handled. >> one brief point to this, the last decade and at half, they were set up to investigate after a variety of terrorism events 9/11, fort hood, the underwear bomber and so on, consistently everyone of those commissions has found that we need to eliminate barriers to making use

of information that is lawfully in our possession to better protect the nation and requiring some kind of additional process before we can query this information directly contrary to the recommendations of all those. >> i see my time is up. >> i never had a chance to introduce the panel to the benefits that they are familiar to us and benefit the audience. we have jim baker who is general counsel of the fbi, joan council of nsa, the general counsel and director of national intelligence, and brad wiegmann from the -- i thank you. >> thanks. thanks for the witnesses for being here. they are very well known to was. everybody should realize we now spent many days with these gentlemen and with many of their

colleagues and all their agencies going through this information and delving deeply into this. there has been a huge dedication of time on the part of the agencies to make sure we have everything we asked for and make shore all of questions are answered. all board members appreciate the amount of time you dedicated to talking with us and i think it is very important here to be 100% clear. there has been a lot of misunderstanding about 702 program and i do see issues for the program and things we are talking about but it is important to narrow the subjects of controversy or discussion or concern and i am afraid rajesh

de may have partly reinsert a problem when you said u.s. person selectors were not used for upstream collection or upstream searches, they are not used at all period at the collection stage. you are saying u.s. person identifiers or selectors are not used to search the required data base of communications that were otherwise acquired on a particular rise to basis under the upstream program. correct? >> correct. i would prefer not to introduce more ambiguity. let me be absolutely clear. section 702 collection of any flavor is only targeting non-u.s. persons to be located abroad. the topic i was discussing was in the realm of that lawfully collected targeted information once it is in the government's possession the secondary issue

arises as to how one can search through that data and the issue we were discussing was whether those searches can be conducted using personal identifiers in that collected data and the answer to that question is no with respect to upstream collection. >> when you are talking about search and collect and acquire, all of those terms you are using to mean in a colloquial sense when a government collects, obtains, puts into its database, acquires, you are not parsing those words from 702 purposes, there's not a distinction between the search, the collection, the acquisition, it is all -- you are using those things all to refer to the same activity. >> no pricing between acquisition and collection so there are some theories that when the government receives the

data doesn't count as collection or acquisition. acquisition and collection for these purposes are the same thing but the term search is a different term. search as we discussing means certain information that has already been lawfully acquired or collected. >> also the first -- now we have two meanings of search and it is hard to be clear on this. brad was explaining, the search occurs when you first collected or acquire. that is the fourth amendment search. >> he was speaking to the use of the term in the fourth amendment and not the use of the term -- >> querying you, second use of search, so you query your database. >> that is the term we typically use rather than search. >> in that case aquari query isa

search. >> persons reasonably believed to be outside the united states and there has been some talk about there may have been some slide somewhere, i don't know where this came from, some notion that it is 51% likelihood, therefore, 49% of the time we might be wrong, the person is not outside the united states and that is permitted under 702. can you comment on that? >> the bigger picture question that gets to is how a determination is made for purposes of the statute, that you are targeting a non-u.s. person recently believed to be located abroad. as bob articulated, sorry for repeating this but just for clarity statutes does not allow you to target a person, t omm1t

person, there how that means an analyst must take into account all available information, means an analyst cannot ignore any contrary information to suggest that is not the correct status of the person and also means naturally is that any such determination is fact specific to the facts at hand. i did a little checking and turns out in our internal

training materials we actually asked our analysts a question along the lines of if you have four pieces of information that suggests a person -- two pieces of information that suggests a person is domestic, given that it is 4-2 is that sufficient to establish? the correct answer is no is not sufficient because it is not a majority test, it is totality of the circumstances test. one must take into account strength, credibility and import of all available information but to add on to that to the bigger point about confidence in that determination analysts have an affirmative obligation to periodically revisit the point of determinations so it is not once and done system. targeting determination must be documented before any, action occurs. that documentation is reviewed, every determination is reviewed in 60 days increments for the

department of the director of national intelligence to determine if they agree with that. targeting procedures as we mentioned which account for a lot of this are reviewed annually by foreign intelligence and prove to be consistent with the court. >> if i could add from the doj perspective, we review those as the terminations and found an error rate of less than 0.1% basically, so that equates to less than one in a thousand cases where we are finding nsa making erroneous determinations. >> thank you. i think the nsa said in some of its information, information about u.s. persons is incidental to the 702 search that is targeted of an non-u.s. person,

and incremental information for u.s. persons found not have foreign intelligence value it will be, quote, perez to -- purge. tell me what purging means. does that mean it can subsequently not be used at all or subsequently used and retained for some purposes and at one point by whom could this decision, not intelligence value, be made? >> let me step back for a moment. information is determined -- >> speak a tiny bit louder. >> information is determined not to have foreign intelligence value, it is required to be purged. what purging means is removed from nsa systems in a way that it cannot be used, period. >> for any reason at all. >> correct.

there are extensive requirements we have gone for with the foreign intelligence surveillance court to ensure the best extent humanly possible that nsa's technical systems can purge data as required by minimization procedures in the foreign intelligence surveillance court. >> in your experience, is that to purge or not to purge decision made early in the process or is it kept in there until the analyst or whoever has the chance to do some more hunting around and see whether or not other things would suggest that does have intelligence -- in other words, if there is such a concern about as there is in outside groups about u.s. incidental information that is in the files and later possibility of being

query i wonder how extensive this purging operation really is. >> to purge or not to purge, that is the question. procedures require the determination about for intelligence value be made as early as possible -- is not something that by default can be ignored. that being said -- >> who makes that? >> intelligence value is made by foreign intelligence -- >> analysts are working on it. >> they would be the ones who have the most relevant information but that goes to a bigger point as to the nature of intelligence analysis. you all would appreciate that it is difficult to determine without context the 4 intelligence value of any piece of information. in fact that is why the intelligence community's in courage to connect the dots of pieces of disparate information so i think we would hope and expect analysts make that determination about for

intelligence value in the context of all available information. information is not reviewed, what is the default? this is a large reason we have default retention periods for data. for example for nsa the default for prison collection is a five year retention period. there's a reason that retention period is adjustable or at least tailored to the specific nature of the collection. for this collection the retention period is two years recognizing the nature of the unique nature of collection and it may have a greater implication. >> the president required -- required january directive that went to 215 that at least temporarily selectors in 215

were questioning the databank of u.s. telephone calls had to be approved by the fisa court. why wouldn't the similar requirement for 702 be appropriate in the case where u.s. person indicators are used to search the prism database? what big difference do you see? >> i think from a theoretical perspective the difference between the bulk collection and the targeted collection. >> sorry for interrupting. i would think the message from 702 actually got the content. >> the second point i was going to make is the operational burden in the context of 702 would be far greater -- if you recall, the number of actual telephone numbers as to which a reasonable like teachable suspicion determination was made under section 215 was very

small. the number of times we query the 702 database for information is considerably larger. i suspect the 4 intelligence surveillance court would be extremely unhappy if they were required -- >> i suppose the ultimate question for us is whether or not the inconvenience to the agency's or even the unhappiness of the fisa court would be the ultimate criteria. >> it is more than a question of inconvenience. it is a question of practical ability. >> i think one must also look at the underlying nature of the collection program at issue and so i think we should be clear not to conflate the 215 program with the 702 program. as you mentioned one deals with metadata and the other deals with content. the latter is directed at content collection targeting non

u.s. persons located abroad where as the 215 program although it deals with snick did not. >> if i may, the 215 program -- >> the judge's time is expired but i will have the opportunity on another round to continue that. i want to shift to a different topic about communication, searches and query switch is have you explain it basically that you are looking for other people's discussion of another selector or e-mail term but back to the definition here. what is a collector and what is the director if you could

explain those terms. >> tiger is the operative term others build on. a selector would be an e-mail account or phone-number that you are targeting so this is -- you get terrorist@google.com or whatever. that is the address you have information about that you have reasonable to believe that person is a terrorist and like to collect foreign intelligence information on that person's account so when you go up on that selector we say go up on or target that selector and collect information going to the provider and getting information related to that person's accounts intercepting real-time and collecting the story communications of that particular account. that is what we mean by targeting a selector. using that collector and providing that to the company and provided information or the phone number on that phone numbers so when we say selector

is an arcane term that people wouldn't understand and targeting is the when you are going to get. those are not the targeted numbers or accounts but others that are acquired with these communications. target is the one you are going after and the statute requires the target be a non-u.s. person located overseas. that is the determination we are talking about as we go through great lengths to make sure that target belongs to a non-u.s. person overseas. the other questions? tasking, when you are saying going to test this town, collect information from that account. so you are identifying this one is going to be approved. a terrorist or proliferators or cyberperson or whoever it is, we

get that information. and that is the overarching order that goes to the company. and complied with taskings. >> that asked my colleagues. >> the statutory term. and operational term to refer to something like an e-mail or phone number, legal process, tasking being internal government terms for how you started the collection on a particular sector. >> building on that what is the rationale for collections? if the target is the e-mail account or the phone number, what is the justification for gathering communications between two persons who were discussing the phone number or e-mail

address, there is no to or from their e-mail address or phone number. why is that targeting permissible under the statute? >> the conclusion in a typical case, if you are targeting bad guy@google.com, you are targeting that person's account, their communications. it is not necessarily communication to or from that bad guy but that selector and so what the court has concluded is when the statute uses the term targeting a person overseas, targeting that selector qualifies under the statute for targeting non-u.s. person overseas so it doesn't have to be targeting to or from but can target communication about that particular selector. >> the meeting of target earlier where you are focusing on an account and now you are discussing targeting discussion about that account to >> that is that selector. >> is always focused on that

account. the key is the misperceptions some may have that -- about collection, somehow about a keyword or persons that may be behind that account but all collection, section 702 whether it is upstream, a balance which is a subset of upstream or prism, based on the selectors of issue. >> my time is expired. >> following your own rules. just a follow-up on that, a good lighting query to make sure everyone understands, so you are saying if someone is e-mailing about rachel brand or explosives, that would not be a permissible about query under your explanation? >> i would like -- >> you could perhaps get it

about rachel brand -- >> this is an issue all of us, clarify query in from collection, we are discussing now the collection of information, the collection of information, all collection of information is based, focused on selectors, not keywords like terrorist or a a generic name along those lines. and the same selectors used for the prison program are used for collection. just a different way to effectuate the collection. >> part of a large part of the function of these hearings is public education, function, i thought david ask questions were great, meaning different terms and i am glad you are willing to bear with us asking about questions we have already discussed in private but it is hopeful for everyone to understand why we are talking about and along those lines

there was some discussion about purging data that doesn't turn out to be for an intelligence information. can you explain how on the front end you implement the requirement that the target, non-u.s. person reasonably believed to be abroad that you get for an intelligence information through the collection, a separate statutory requirement. how do you go about collecting that type of information? >> in our early discussion we switched to foreign determination that that is a seconds that. has to be a reason one actually wants to collect intelligence in the first place and then have to get to this type of question permitted in the statute so it has to be about 4 intelligence to be in that collection but beyond that it has to be about 4 intelligence within one of the certifications approved annually. certifications on things like counterterrorism, encountering

wm ds, weapons of mass destruction. when an analyst needs to make a determination as to be valid for intelligence purpose for which they want to effectuate collection they have to document that. that is documented in a targeting rationale document, those are also reviewed by the justice department and director of national intelligence every 60 days. >> an important point for non u.s. persons, think about once you conclude a non-u.s. person overseas and you collect everyone, that is not the case. is targeted not only based on the identity of the person and the location of the person but that you are trying to get foreign intelligence sell it is an important protection in the statute designed for non u.s. purchases. and not blanket collection for non-u.s. persons overseas the only people on foreign intelligence targets. growing up in that account, that will give you back information

that is foreign intelligence like terrorism or proliferation or whatever it might be. >> what can you tell us in an unclassified setting about documentation of foreign intelligence or oversight? we talked a little bit about that. can you give us anything more specific. >> they have to document that at nsa and essentially, tasking sheet and on that sheet they are documenting for intelligence purposes that they are trying to pursue by going after a party and a target and those are reviewed with foreign determination by the department of justice. >> for every selector. >> a review that rajesh de mentioned is under 30 days under these decisions you should say, foreign intelligence and foreign determination. >> the broader context, if the question is getting at the process within which that happened even before that

happened we had training for analysts as to how they should document this material, we have audits in our databases, comprehensive compliance program, spot check within nsa prior to the 60 day review by the department of justice and quarterly reports about compliance to the program, semiannual reports to congress and annual inspector general assessment, annual certification process. those decisions are granular aspect of the program and conducted in the context of this broader regime. >> i see that my time just ran out. >> i wanted to ask one additional question about, can you do about collection through prism? >> no. >> is limited to upstream. >> prism is a collection to or from. >> to a separate topic, one of

the things i have found concerning and frustrating through the process of our evaluation of programs is how do those articulate the advocacy of these programs, you had begun speaking about this in your prepared remarks. i would like to ask a couple of questions. one, how do you assess the advocacy of a particular program? how do you think we should be affecting the advocacy of a particular program? and it is not really a question but a comment which is please don't give me series of success stories and say that is how you advocate advocacy because that is an initial response from the government often in response to a question either from a body like ours or from the media. how do you assess the advocacy of the program?

how periodically do you do so? how would you encourage us to assess the advocacy? >> let me start on that and i will start by saying i completely agree with you that sort of individual success stories are not the way to evaluate collection program and utility. they way you evaluate collection programs is going to depend in part on what the particular program is for. insists case we have, in fact, the director of national intelligence has attempted part of our job is to try to determine resources are effectively allocated in the intelligence community budget so we have done studies to try to look at okay, what are our collection priorities, how much reporting is generated on these priorities and where do those reports come from? what collections force can we

identify? and that is one of the ways we determine sections 702 is relevant. another is by looking at the sheer nature of the information that we get and its utility to a whole variety of national priorities, that is a more impressionistic approach and yet you can see time and again, important intelligence reports provided to policymakers derived from section 702 so those are two ways that i would look at estimating the value of a particular collection. >> with respect to this program or any program i think intelligence professionals will tell you any tool must be evaluated in the context of the other tools for which it is utilized. all intelligence tools are used in a complementary fashion to isolate one particular tool and evaluate the second in isolation doesn't do us justice for what is valuable or what is not. it also depends on the type of

tool. different intelligence programs are used for different purposes. a program like section 702 is used for difficult purposes and the metadata program, one may be a discovery tool to provide more specific collection and others may be used as in fact the specific election that follows that. ..

i think you really in order to understand whether it's effective and useful you have to think about what your goals are with respect to this particular program and the goals for this program like many other programs are to obtain i think timely, accurate, informative, foreign intelligence information about the capabilities, plans, intentions of foreign powers, agents, actors and so on and so forth. really what your talking about is i think developing a good metric to understand whether this program is worth all of the costs associated with it. so i think you would want to look at the amount of information that we acquire but also then the quality of it, how good it is. i think you can slice that a lot of different ways at my colleagues have suggested. i think that's what i would recommend you be focused on but because this is a broad-based foreign intelligence collection program you have to look at not

only, you to look at counterterrorism but look more broadly than that because this program is not limited just to counterterrorism. >> i agree. i think the one point i should add is the review that bob mentioned happening within the executive branch, not limited to the executive branch, i think that's part of the rationale behind having some clauses of there is programs is that when the statutory provisions expire, after the two the king program twice in the last two years as well as 702, congress undertakes anybody wishing of the effectiveness of the programs. >> i fully agree that it is an effective and important program and i really want to emphasize the last point you made, this program should not be considered still with the counterterrorist program. the program has significant and exceedingly important utility in areas outside of counterterrorism.

>> trying to clear up another issue. in terms of the participation of service providers, the awareness of service providers, the 702 implementation, is 702 implemented, all seven of the invitation is done with the full knowledge and assistance of any company from which information is attained, is that correct? >> yes. the answer to that is yes. >> so early on in the debate, there were some statements by companies who may or may not have been involved in the program say we never heard of prism, but whether they ever heard of prism, any company that was from whom information was being obtained under 702 knew that he was being obtained. spent correct the prison is just

an interim government term that is result of the leaks became a public term but collection under this program was done consume a pursuant to legal process. >> and so they know that their data is being obtained? >> they would receive legal process in order to assess -- assist the government. >> one thing i read in one of the statements is under 702, you could target entire countries or regions are is that correct? >> so all collection under 702 is based on specific selectors, things like phone numbers or e-mail addresses. it is not a bulk collection program. >> a selector would not be an entire area code? >> correct. >> going down to the constitutional -- oh, one other set of questions. even i've lost track now of what

you've already said you're versus what you said elsewhere, but in terms of where you make a determination that a person is, a non-u.s. person outside, and then you later discover that that was good faith, wrong, the person was in the united states, or the person was a u.s. person, and do you track that quacks and what do you do when you discover that, and how often do you discover -- i'm not saying about bashing i'm talking just about we thought he was outside the united states and that was just wrong. or you thought he was a non-u.s. person and that was just wrong. how often does that occur? >> i'll defer to brad on the sort of overarching review but if i could make a point about what happens. yes, we keep track of every time

the information comes to our attention to suggest that a prior intelligence evaluation was incorrect even if it had met the legal stupid every such instance is a matter of compliance matter that has to be reported to the disk and ultimately semiannual reports reported to the congress. and third -- disc. that such an progress encouraging progress by which information they should not have been collected it had not met ththe legal standards needed for some nsa systems. i think brad can speak to the level of accuracy. >> the item is the past and the information is perched. >> suggested us to begin between two different types of blinds -- compliance issues. one is the rome example you mentioned to let's say we're up on a cell phone that we believe belongs to a bad guy was outside united states, a foreign person. then that person shows up in chicago. when that happens we ask the

cell phone, that means we no longer collect communications at the complaint it's that that's reported but it's not an erroneous determination based on the movement of the individual. so putting those cases aside, in cases where we get it wrong, we think the e-mail account with a focus located overseas but it turns out that's wrong or it turns out we think it's a non-u.s. person but it is a u.s. person, we review every single one. our review, as i mentioned, we think it is less than one in 1000 cases where they make that determination erroneously. >> it probably bears repeating, it's not a one thing done so there is an obligation for analysts to reaffirm the foreign determination on a periodic basis, which contribute to the ability to make sure that determination is, in fact, fresh and current which, of course, introduce the accuracy of that determination. >> going to the constitutional

issues, the fisa court has determined, and they must determine every year that the program is being emulated consistent with the fourth amendment, the 31st time they determined that, there was an opinion -- the very first time they determined that, and i write, not yet public? >> i think that's correct. >> isn't that a good candidate for declassification? >> we have a lot of good candidates for declassification. in all seriousness, we are -- there are a lot of documents that we have that we are reviewing for declassification that includes not only fisa court opinion but whole variety of other documents. >> fisa court in 2008 when the less considered the constitutionality of the program, the predecessor to 702, the court issued a redacted but

largely unclassified opinion conducting a relatively full fourth amendment analysis. and there's been some fourth amendment analysis conducted in this situation. and if you're sort of talking about, you know, the rosetta stone kind of document, then the very first court opinion should have been the most fulsome explanation of the constitutionality of the program. >> and i think, i mean i hear bob saying there's a lot of opinions out there, but to me this one seems to be one that would explicate at least one courts judgment on this because

it's been the basis of all, i assume all the rest of said nothing has changed that would merit us to reconsider our very first judgment? >> i think it's among the opinions we are committed to reviewing all of the opinions on the fisa court to determine which ones can be declassified in redacted form to imagine this would be among those that are reviewed. so absolutely. it will be among the opinions that will be reviewed. >> i don't want to leave folks with any mysterious impression. i think the board has access to anything so should have to assume anything about subsequent opinions. the board in fact has reviewed everything. i just don't want what i can be an unfortunate consequence would be for folks to take weight impression that there's a mysterious opinion that it's a secret analysis. and i don't think that's the case but i don't think you suggest that. >> the board has access but i think the question, the public should have access is part of the debate. >> just one other thing to add on that.

702 collection is now been challenged by a number of criminal defendants. 702 information is being used against some of the cases so we will be filing public breeze and we can expect samore decisions in that area as well. -- public briefs. that's the way the cost and jolly of 702 will be on the public record, the opinions on it and the breeze and everything will now be in that record. judge wald. >> my hope and under what substantive criteria is the initial decision to use a u.s. person selector for searching the prism base, who decides let's do that, what's the substantive criteria on which they make it quick you don't have to go into the review process. i know the decision will be reviewed up and down. how does that get made? what's the substantive basis?

>> i can speak for nsa, particulates be just to clarify, that means if it goes to one of the other agencies, not nsa or cia or fbi, they make their own substantive decisions for query speak with yes. the 702 program is one that all agencies operate on their own and have their own minimization procedures which would address topics like searches. nsa procedures in this regard, in his element have been made public. and so the standard in such a query needs to be briefly likely to return foreign intelligence information speak and who isn't made by initial? >> made by the analyst. >> the analyst is working on that particular case, okay. my other question is, the president did, i understand did

direct that there be some changes in the treatment of non-u.s. persons asked to the limits on and retention of the data to bring them more in line with those of u.s. persons, incidentally. where there is no foreign intelligence value. can you tell us a little more specifically, if anything has been done in that regard, or it is being contemplated, the city, 702? >> so i think first of all it's important to understand the point that somebody may have been bred made earlier, which is that there are already protections to some degree built into the system, protections for non-u.s. persons are not as great as those for u.s. persons because u.s. persons are protected by the fourth amendment. but there is a requirement that we can target a selector unless we have reason to believe it's a foreign intelligence value.

and they're sort of a general principle that intelligence agencies, their job is to collect, analyze and disseminate foreign intelligence information, not random information. i think what the president has directed us to go back and look at our procedures, not only with respect to 702 but with intelligence in general, assess whether the extent to which it's possible to provide limitations on collection, retention and dissemination that more closely track those for u.s. persons. for example, executive order 12333 provide specific categories of personal information about u.s. persons again appropriate be retained and disseminated. there's a list of them in executive order 12333 and the president has asked that we assess whether we can apply the same sorts of rules to personal identifiable information of non-u.s. persons. >> right now if you get

incidental information about a foreign person in the course of targeting another foreign person, and you look at it, do you use the same criteria and look at the same review and say, well, you know, he was talking to his grandmother or something, there isn't any foreign intelligence their and you purge it? >> anytime there's not foreign intelligence value to collecti collection, by definition, it would be purged. i think an important point to be made, as you articulate, judge, incidental collection just to explain the term a little bit, all communications have to end. one is the target and the other is presumably not a target. we don't know. one doesn't know ex-ante. and so by definition there would be incidental collection of non-u.s. persons as was the u.s. person. historically constitutional protections have only applied to u.s. persons.

>> can i make a comment about that? >> quickly. i found a very provocative when you're answering elisebeth question but if you're going to assess the efficacy of the program, you look at it in terms of the efficacy and the holistic view of all of the programs. i guess it's inevitable that i would ask the question but how can anybody except you people do that? because so many other programs, i think, are just unknown even to the fisa court. they are not all fisa supervis supervised. and serving the outside world doesn't know about many of them. so, you know, how in effect outside assessment be made? >> if i could address in response to my comment. certainly i think i would not suggest there should be a public violation of all intelligence

programs. i think, for example, this board has access to information about counterterrorism programs and so i would expect any if i wish will be in the context of the other cd programs. with congress as i mentioned they read by the programs that are periodically and i think the public record that indicates that there is a fairly robust exchange between the executive branch and the legislative branch on a variety of programs. and so i think that's where traditionally the violation has occurred. >> i was just going to say that we've managed, we've set the balance between public disclosure and the need for secrecy by empowering the congressional intelligence committees. we are required by statute to keep them informed of intelligence activities, and we do. they know about these programs, and they have the opportunity to evaluate them. and they do. in fact, they pass an intelligence authorization act

that includes a lengthy classified annex that is a prescriptive with respect both reports that requires of us and direction as to what, where we should be spending our money. so that is the external oversight and the way we said okay, we need a oversight of these but they still need remain classified. >> did you want to finish a vieu on foreign intelligence because i had several points but i think even in addition to congress having oversight, the course in certain circumstances, and then also the president and all executive branch officials. we have an obligation to make sure that in addition to adhering to the law, taking to the laws, to spend our time and our money on programs that are effective and not be wasting our time of things that are not. that flows from the president to the dni, attorney general, director of the nsa and so. we should be focused on things

that are useful and collecting information that produces the kind of intelligence information i was talking about before. the other, i want to make was with respect to fbi. our personal only have access to the databases when they would have received the proper training with appropriate oversight. and operating consistent with the approved standard administration procedures when they're doing their query activity. >> i wanted to shift to a different subject, attorney-client privilege. there was some press reports a couple weeks ago about collection information that may involve attorney-client communications. i want to focus particularly on the minimization procedures which i understand you exclude attorney-client communication only in a very narrow context where the client is under criminal indictment in the united states. i guess they saw federal, indictment. that seems like a very narrow interpretation of attorney-client privilege. i want to see if that is the

interpretation you apply. and if it is, what impact they will be it was expanded to more normally accepted definition of attorney-client privilege which is basically lawyers and clients consulting with each other. >> we written a letter to the aba and i commend the to the court and to the public. i think the public letter now -- but i think one fundamental premise is that analysts are under an obligation to identify for the office of general counsel anytime they encounter something that may be potentially privilege. and i think all of us who are lawyers think that encompasses everyone up on the stage knows, just because a committee patient is with cable or does not means it is, in fact, a privileged to mutation. so it's helpful to have a lawyer to determine that. while i can't speak to any particular instance that's been written and the press, i think there's a couple of big picture points that are worth making.

one is our office has historically provided a range of advice to minimize the extent possible the collection of attorney privilege material. >> privilege just whether it's a criminal indictment or -- >> beyond the criminal. the point i'm trying to make is that while there may be a specific provision in the 702 procedure that addresses the criminal context, there is a reason why we ask analysts to consult counsel because the vice can often be carried to the specifics of the circumstance. far outside the criminal realm. recognizing the import of attorney-client college material iencountered even outside of the criminal content. >> i want to talk about reverse targeting where you target someone overseas, potentially with the view of collecting information about the u.s. person in the united states. may be somewhat technical point

but there seems to be a quirk in the statute. it says that you can target people reasonably to be outside the united states. you cannot reverse a target some outside the united states for the purpose to target a particular known person reasonably believed to be in the united states your does that permit targeting of persons outside the united states with the intent of getting information about u.s. persons not in the united states? >> no. >> why not? >> there's a separate provision that bars targeting u.s. persons outside the united states. so if you were doing that, you were trying to target a u.s. person outside the united states, you couldn't do that spin reverse targeting procedure -- >> i don't know if you'd call that reverse targeting. >> there is another statutory provision under 702. spent on the talking, i agree, you can target a u.s. person outside attorney. but what if i find a non-u.s.

person i know is intimidation with the u.s. person is also outside the united states? is that permissible? >> no. >> because? >> because you would be targeting, if your real purpose is to target u.s. person come your targeting that person. >> reverse targeting is in your do the same as targeting? >> well, i mean, i think reverse targeting is a geographic issue essentially when your targeting let's see of a legitimate target overseas but you really want communications of u.s. person or non-u.s. person inside the united states by the statute says you can't do that -- >> right. >> i was explaining, if you have come together to his person your interest in overseas, you can use 702 to targeting either and -- >> you know that u.s. person is intimidation with a non-u.s. person both of whom are overseas. could you target the non-u.s. person to get the u.s. persons communicate and? >> you coul couldn't for that pe but if that person is a target

your interest in the to mutation, sure, you can target that person. that's okay. i would consider that reverse targeting but you don't have that legitimate target. i don't know if that answered your question. >> david, i don't want to take the time but take a look at section 704 and that made kind of address the concern you're focused on. or hats but perhaps not. >> i want to get back to the efficacy as a an art charge absolute about putting national security and privacy and civil liberties. followinfalling upon ms. cook's question, sorry, i'll hold out for the next round. >> wanted to go back to upstream collection a little bit. i've seen some statements in the public domain about the volume of upstream collection, vis-à-vis the volume of prison collection. what can you tell us in a public setting about that?

>> i think the best publicly available information is from the october 11201 11th 2011 opin that is now been declassified in which it was a rough estimate their, ma forgive me for not precise but about 10% of collection is upstream. on the order of magnitude. >> okay. so you said in an earlier round of questioning that upstream collection from upstream is held for a short time than prison. he said the reason for the distinction is potentially greater privacy concern with respect to upstream collection. can you elaborate on why, what are the additional privacy concerns that pertain to a chip? >> a lot of this is laid out in this court opinion that is now public. this is from the fall 2011. i think because of the nature of a balanced collection which we have discussed it is potentially a greater likelihood of implicating into the u.s. person, or inadvertently collecting holy domestic

indications that differ must be purged. for a variety of circumstances, the court the valley would the minimization procedures we have in place and as a consequence of that evaluation, government put forth a shorter retention period to ensure that the court could reach cover with the compliance of this prestigious with the fourth amendment. so two years as one element of the revised procedures that are now public. >> from what you just said, if using a legitimately tasked about term, a holy domestic communication is collected, it has to be purchased? >> if one recognizes that yes, yes. spent even if it has -- >> that are specific and awful top my head i can expand on the particular exceptions in the minimization procedures but there are and elaborate set of detailed procedures that are now public that discuss how upstream collection must be treated in

order to account for this concern. it has things like data must be segregated in certain ways where the risk of collecting the collection is not. there's a shorter retention period. holy domestic indications are not permitted under the statute so, therefore, the default role, yes, must be purged. >> i wanted to use the word collection there again. your definition earlier seem to be that by incidental you mean come by incidental u.s. person collection, you mean that the person on the other end of the phone from the non-u.s. person abroad is a u.s. person. that's your definition? is there another definition you are aware? i think there's been some frustration with the use of the term incidental in that context. because it's not accidental. it's intentional. it's unavoidable. so i just want to make sure that

we're all on the same page, by incidental you mean not accidental, not unintentional but this is actually what we're doing? >> it is incidental to the collection on the target. it is not accidental. it is not inadvertent. incidental is the appropriate term for it. >> i would say that term is been used far beyond this program and historically so that's a judgment intended. it's just a term that is used. >> okay, okay. i'll hold questions for another round. >> following up on david's question. i think it goes to a broader point which is there's a perception that this statute is fairly complicated. there's got to be loopholes or idiosyncrasies in there somewhere but let me just ask you, would it be the view of the united states government that it is appropriate to use 702 to intentionally target u.s. persons whether directly or through reverse targeting, whether they're inside the united states are outside the united states?

>> no. that is not permissible. >> i wanted to also follow up on a question about the about. and i apologize. again, just for folks understanding, we spent six and half hours talking with folks about just the oversight mechanisms in place and were unable to get through that entire conversation. so i apologize if you have said this before or today. the collection methods, procedures that you use with respect to about, those procedures, are the approved by the fisa court? >> yes. >> are those transparent to congress? >> yes. >> i think we haven't necessarily started to allude to this but can you talk a little bit about how, your impression of how the intel committee in particular view their obligations with respect to oversight of your programs and whether you have found that to

be pro forma or in any way lacking? >> and let the record reflect, not quite i roll but i think the response was no, they have not found this to be pro forma in anyway. >> i've been on this job now getting on towards five years, and i have done nothing about my interaction or our institutional interaction with the intelligence committees to be pro forma. they have fairly substantial staffs which have a lot of experience. some of them come from the community. they know that they dig very deeply into what we do. the dni occasionally using the term wire brushing, the interaction we have with the committee. so it's not a pro forma interaction in anyway. >> on programs like 702 that we're talking about today, for

example, we all lived through the reauthorization of section 702 in 2012. that process was not simply in connection with intelligence committees, but i can remember briefings where we would go up, for all member briefings being held in communities, committees would host before the congress. i don't want to leave the impression that it's only with this committee. particularly for program like 702 that needs be voted on by all members of congress on the basis of the contact clause. >> i want to make sure my colleagues have time for their last round of questions so i will save time. >> going back to the minimization question, and specifically, the incidental collection question, am i right that the rule is that whether

the information is inadvertently collected, that is, you were tasking other wrong selector or some mistake was made, you got something that you didn't intend to get, that's inadvertent, or you were critically targeting the right account and you collected communications to or from a u.s. person, that's incidental. the procedures say minimization rules say that if you never discovered that it was inadvertent and never discovered that it was incidental, you never realize it was a u.s. person collection, it's deleted after five years. the basic rule is you keep it for five years, you give everything for five years. two years on upstream, five

years on prism and then gets deleted. that's the basic rule, right? bright? >> correct. >> and then top of that the rule is that you discover through analysis, through reviewing it, that it was inadvertent or incidental collection on a u.s. person, you must immediately purge dashing bob is shaking his head no. >> there's a difference in the way, as you're using those terms, are very different concepts. inadvertent refers to a collection that was not authorized by law. that is purged your incidental -- >> purged unless -- >> and less -- rajesh mentioned there are certain exceptions to absorb and not able to recite them but they do exist. they are fairly narrow. incidental is collection that is authorized by law. and at that point the rules

relating to u.s. persons kick in, and if you determine that it has no foreign intelligence value, or -- you purge it. >> i mean, what's your response to the argument, well, fine, that just means that if you think it's valuable you keep it, if you don't think it's valuable, then you purge it. i mean, it's like -- >> that it's lawfully collected. >> fair enough. but you do, if it is of interest to you, you to keep it? >> if it's a potential foreign intelligence value -- if it can be useful to providing the intelligence that policymakers need or to protecting the nation against threat, then yes, we keep it for the required period. >> to make a more concrete, if it's a terrorist overseas, he's going to number in the united states that unlocks the u.s. person, we want to get the information to its incidental in fact we're getting the u.s. persons number, but he is calling minneapolis at we want

to keep that, that communication. it is of high interest to us. spent one point i would add is just the minimization refers to steps in the process. everything from collection to review the dissemination. and so i think we're talking about one element, retention. so they're different stages of process. to disseminate that information with a certain threshold would have to be met. >> i wish there were some way, i know it's embedded both in law and guideline and practice, but minimization means different things. and minimization means keep it for five years and then delete it. minimization means don't disseminate, identifying information. minimization means delete it unless its intelligence information. those are very different spent they all fall and the statutory definition of minimization essentially.

i'll mangle it a little bit but it's procedures that are designed to minimize the acquisition, retention, and dissemination of information about unconsenting united states persons, consistent with the need to produce foreign intelligence information. and so you're going to have different minimization rules based on the particular missions of the agency. you're going to different minimization rules depending on the nature of the activity. you will have different minimization rules depending upon the nature of the information, but minimization is that an entire category of rules spent but it is a little bit of a circular definition. which means different things in different context but sometimes it means -- >> i was it means different things in different content. >> it's a balance. >> if i could real quick emphasized, as bob was alluding to, the fbi does have its own standard minimization procedures with respect to the type of activity. i assume you have had access to those. anyway, there's a lot on the

table we just talked about with respect to minimization but i would direct you to those in terms of understanding the fbi's role. >> judge wald? >> when u.s. person information that's been quote incidentally acquired, kept for legitimate reasons or whatever in the base, is disseminated to foreign governments as permitted under certain circumstances, it's said that it's usually massed. i think would be useful for public consumption to no what the masking process entails and in what circumstances it isn't masked and whether or not the different agencies can use different criteria for masking or it's all centralized by the injustice or the attorney general's supervision? >> well, i can speak just for masking and general at nsa. abstracting from the second part issue for a moment is substituting a generic phrase like u.s. person for the name of

the u.s. person that is collected. that is a legal term. that is an individual or use company or firm. i don't think there's a centralized process. that's how we do it at nsa. i think that's the other agencies do it as well. >> different agencies decide how to interpret? >> again, -- >> asked what should be massed and what shouldn't? >> in the 70 to context is part of the minimization procedures. >> so what does that tell me? >> specifically as to whether or not and what circumstances it's not massed, that's up to each agency or not? >> it's done on an agency by agency bases. >> generally speaking i think the minimization rules of each agency generally would not permit you to disseminate u.s. person information where that is not a to foreign intelligence or necessary to understand that

foreign intelligence. so in other words, or evidence of a crime for fbi, so in other words, if it's joe smith and his name is necessary, if i'm passing it to the foreign government and its key vendors and that it is joe smith because that's relevant to understanding what the threat is or what information is complexities a cyber hacker or whatever and this kid is information than you might attach his name. if it was not, if antidote it was in the communicate but it is not pertinent to the information are trying to convey, then that would be deleted and which is a u.s. person. it would be blocked out. it which is the u.s. persons. that's essentially how it works more or less in all the agencies. isn't that a fair description? >> the basic parameter is articulate in the statute that his message to understand for intelligence or evidence of a crime and that is effectuated through the procedures.

that's a 12333 collection. >> with the last subpart, with those, just take this as an example, with those masked criterium also include foreigners, non-u.s. persons information? i mean, suppose the government of romania asks some question which might require a romanian nontargeted person that is in your prism basis. with the masking procedures, et cetera, apply there, too, or are they just for u.s. persons? >> in today's world masking procedures are for u.s. persons because they are derivatives of the constitutional requirements, the minimization procedures they need to conform with the constitutional requirements. >> so it would be up to the agency decide whether they thought it was right or wrong to give that information to foreign governments?

>> two points to mention. one, know a fresh would be disseminate unless it had foreign intelligence value. >> but having made that decision spent if i may continue to the second point is i think what the president directed us to examine is what protection could be extended to non-u.s. persons and that's the study. >> and that's what you're working on? >> that's the issue. >> one quick comment if i'm not mistaken, if you look at title one of fisa but i think also applies to section 702, it says you don't think it restricts it with respect to u.s. person or non-u.s. person, that no federal officer or employee can disclose continued or disclose information at all except for a lawful purpose pics of information could only only be disclosed for a lawful purpose. and i believe that cuts across the board. >> i don't have anything further. >> i wanted to make sure i understood judge wald's question and response. i understood her to be asking

what, under what circumstances this omission could be made to a foreign government. are there separate agreements and procedures might govern in that instance, or our analysts able to so we decided they would like to provide foreign intelligence information to foreign governments? >> at least our procedures are publicly available procedures have provisions that address sharing with second party partners. i don't have the details but i can sort we get back to you on that but they are now public and articulate the circumstances under which information can be shared with second party partners. those are proved by the fisc. >> i think the critical point is that these are part of the minimization procedures that have to be approved by the fisa court. to the extent we're talking again about section 702. >> the minimization procedures are only for u.s. persons, aren't they? >> yes, that's right. >> i was talking -- >> but there are general rules

about what you can share vice information. >> -- fisa information. >> i want to thank the panel for spending a fair amount of time for us today. we appreciate it, it will take a short break and resume at 11:00 with our second panel. thank you. [inaudible conversations] [inaudible conversations] >> a break now in this daylong public many of the privacy a civil liberties board, the panel

takeover scheduled to be about a 15 minute break so we will continue with our live coverage after the break. have a number of live events today on the c-span networks. on c-span for heritage foundation will be hosting a forum on the federal reserve 100 years after it was created. a former vice president of the federal reserve bank of atlanta, and heritage specials are among the speakers but that would be like at 1 p.m. eastern on c-span. at 2:30 p.m. the new fed chair janet yellen will hold her first news conference since taking over from ben bernanke. she's expected to talk about fed monetary policy. that conference will be live on c-span starting again at 2:30 p.m. coming about five also on c-span, the center for strategic and international studies associate form on russia. cbs bob schieffer, former national security advisor will all share their views about russian intervention in ukraine and crimea's vote to join russia. again that is at 5 p.m.

at 2:30 p.m. on c-span3, secretary-general and his restless and we'll talk about the future of that security organization. against that will be on c-span3 today. all of these life events coming up on the c-span networks. so while we wait for the privacy and civil liberties board to reconvene we will show you a this morning's "washington journal." >> host: our first guest of the american enterprise institute, senior fellow here to talk about gop efforts and outrages to millennials and minority. this stems from a top support which were talking about in the last segment what you think about the effort overall by the rnc and the progress so far? >> guest: they have made some progress. had a very long way to go. they had some seriously weaknesses with kids and particularly melendez, women and minorities and is going to take a long time to overcome.

>> host: let's break down the three dimension to millennials to which what's the issue? >> guest: millennials them are probably many issues about the republican party but what was interesting in a new research bold was half of them called themselves independents. i think republicans have an opportunity with a group that they may not have had in the past. they certainly voted for barackk obama twice. they are more democratic than republican of them in a group of independent but at the same time i think there's an opportunity for the gop. >> host: how to capitalize best of what's the best message to send specifically to millennials? >> guest: for the 2014th elections that are dissatisfied with president obama and there's a lot of dissatisfaction with obamacare. perhaps not as much but i think those are positive things the republicans will highlight. in terms of a much longer-term strategy i think they have to be concerned about positions on social issues were young people tend to be more liberal on issues such as gay marriage. they are not particularly different from their older

cohorts on abortion t but gay marriage is a big one for the mono generation. >> host: you highlighted minorities. why so? >> guest: again the population is changing. clearly minorities will be a larger share of the electorate as time goes on. right now hispanics are punching significantly below their demographic waste, and as they become this more become voters in the population they're going to carry out because the group is growing overall. clearly republican have to reach out to hispanics, to better average to the black population which is going very slowly into the asian population which is between 2000-2010 the fastest growing group in the country. >> host: some callers highlighted republican, when it comes to immigration, when it comes welfare, social programs. the caller said look, you can't take a look at these policies and then try to use it as recruitment our loose change

rent and try to recruit at the same time. >> guest: the compassion on all the issues you mention is one where the republicans have some work to do everything they're putting different people forward, talking in a different language than they have been in the past but again a long distance to go. >> host: trying to reach it to these people at that makes drastic change in velocity when it comes to specific policies like those traffic i don't think you need to make specific changes in philosophy but they do need to talk about the issues that they care about in a much different like. >> host: which wants traffic immigration but for the most important with the hispanic community. though it's not necessarily a top tier issue in the public sense, the economy and jobs in certain the most important problem facing the country. i think if the republicans talk up their discipline with president obama in that area at that will for them in 2014. >> host: what you think of the immigration reform at all transit it's hard to know what's happening.

speaker boehner has suggested it's not going anywhere in this congress. i think something has to be that at some point to take the issue off the table. >> host: , karlyn bowman is our guest here today to question as well. here's the phone lines. our first call this morning is karl from chicago under democrats line. >> caller: good morning. i would like to say to you, the republican outreach is nothing but a lot of propaganda. and i say this because they are taught about the want to be outreach. they want to do outreach for something that they don't believe them. let me give you a couple of examples. voting registration.

it does affect a lot of minority. currently, they are writing new laws to put new obstacles to restrict the time limit that voters can have to cast votes at election time, and metropolitan areas. primarily what they perceive as democratic areas. we're not going to ge give you s much time for early votes. second example, on women, you've got republican legislatures in states where they basically have made it almost impossible for women to have access to family planning. you've got one state that has only one family planning center. in texas, they put in the restriction just basically well, we don't want women to get abortions, which is legal but anything associated that they could possibly, have maybe, do with abortion, well, we're going to make it so restrictive that

they can have access to a. >> host: karl, thanks. >> guest: thank you very much for the corporate clearly republicans have been concerned about voter fraud. i think that explicit with their concerns about voter registration, legislation interest states but at the same time, i think that is an issue that is of concern to many voters and perhaps a deficit to the jupiter if you look at public opinion data on the issue of abortion which i have for many, many years you find that americans fully support first term abortions but there must more skeptical about second and third term abortion. so that's why you have seen the pro-life forces tried to advance the 20 week bans on abortion. because the public is a skeptical about it at the level. i don't think that's a big deficit for the gop going forward at the national level from the exit polls we don't have a lot of data on this point. abortion seems to work for the gop because the gop voters care more about it. >> host: this is a dave from

georgia, independent line. >> caller: yes. when obama first got elected, republicans got together to block, this congress, making it one time president and the worst president. the only way you can hurt the president is to hurt the person, correct? then you've got the affordable care act. you have paul ryan telling the republican party, confusion to. [inaudible] okay, you've got the kids, none of them left behind the republicans poppe, we need to put less money in public schools and more in private schools. more likely to succeed. that's about the only time they are looking for the future. poor kids, uneducated kids --

>> host: what would you like our guest to address? >> caller: don't you think that's the reason nobody is going to work is because the republicans are blocking everything? >> guest: clearly independent voters are going to be key to the 2014 and 2016 elections come and you've raised some concerns that many americans have. i think we have a two-party system and the republicans think they have better answers on the economy and the obama administration has picked it is clearly the central issue. people and local committees and states are concerned about the education issue but it doesn't register high as the top problem facing the country today. a dozen states and local areas and both republicans and democrats will have to address that overall. >> host: twitter, about foreign policy and conflict guesstimate millennials are at this point in time they are

very, very interested because usually they are the most supportive group of going to war. they like action but they are also very tired of what we call war weariness of the american involvement in iraq and afghanistan. so they tend to seem somewhat isolationist in the polls overall. if you look back at past conflict, it's just in contrast. initial support for the vietnam war and even for the iraq war but that tends to diminish very sharply. >> host: a poll asking questions about things and with the questions they asked about republican candidates and how they are generally amongst respondents, 20% among republicans said that republican candidates are too conservative. 32% said republican candidates are not conservative in the. 41% said they are about right. what you think about those numbers translate i look at those numbers and others in the poll and one of those interesting questions was asked about whether or not the

democratic party had your interest at heart or hav had the priority of the countries that are in the the party did very well. i think in terms of the response of that particular question, america is a center-right country, although more conservative and liberal thought not surprised by the response to the question is not the most a tea party, same question. 8% saying candidates are to conservatives, 50% they are not conserved in of and only 40% say they are about right. >> guest: the two-party people are the ones will go and knock on doors and conduct literature so they're still a very important part of the republican party including they don't think the party has been concerned enough, particularly on issues like the budget deficit and debt. >> host: what does the poll say about the tea party influence? >> guest: the number of people who say that they are part of the tea party movement come that has not changed since early 2010 when the pollsters first started asking the question. is ask the nation as whole how they feel about the tea party, negative has risen very, very sharply over that period of time.

national police there's much for opposition to the tea party than support at this point. >> host: democrat line, good morning. you're online with karlyn bowman. >> caller: thanks for taking my call to several colors in the present segment mentioned actions speak louder than words begin to look at what is happening in the recent past. this economy basically went, took a major hit. 2002-2006 when republicans have absolute control. they started changing all types of labor laws. i didn't realize until yesterday watching the program that they pretty much eliminated overtime for everything over $455 a week, that's incredible. their voting record is constantly to get rid of jobs. they hate unions. this is common knowledge. they hate the unions. they want to get as many jobs out as they can. they will put the american worker and a situation where he is going to work on their terms. the president has submitted a

jobs bill over three years ago the house refused to discuss it or the first provisions of that was to give tax breaks to american employers for keeping jobs in the u.s. whereas the republicans are paying the american employers and companies from moving jobs offshore. so again, actions speak louder than words. let's discuss the president's bill and bring that to the floor. >> guest: there's no question that the economy did suffer a big hit at the turn of the last century and then again after 2008 where the economy has been very, very weak consistently since that point the republicans and democrats have very different approaches to how to fix that problem overall and that's why you've seen the house rejected the bill that you discussed on the bill. i suspect that to continue. economy very weak, and right now

americans are so divided about which party would do a better job handling the economy and you think that economies -- the republicans would have a larger point. there's little confidence in washington to solve these problems. >> host: anthony from maryland, independent line, good morning. >> caller: good morning to you, sir. first, thank you for taking my call. you all do a great job here on c-span. i would like to say hello to ms. bowman. i'm independent, ma also a minority. i'm an african-american. i want to say to her i was listening to the republican party should concentrate more on the economy in which each party should because there's an issue that i think every issue is important and immigration as well as the health care which is much needed. but when you talk about republican party, focusing on the economy, in my mind with the furlough with the government workers which they push for the

furlough, hurt the government workers. .. trying to get some kind of control federal spending behemoth.

that is why the process was taken. people in the washington area were disproportionately hurt by furloughs overall. >> host: our guest is senior fellow at the american enterprise institute. one of the things she does is analyze polling data. what about the plan by the rnc, the autopsy, one point was to gather better data to use that as analysis. talk about that. is that a significant part of that outreach going forward? that was one of the bullet points as far as data battering and things like that. >> guest: both parties have pretty big apparatuses doing that. they are doing more sophisticated way. that is under wraps. that is not the kind of thing we in the public see. they're doing a lot of survey work. democrats are doing the same thing. to understand what kind of appeals can be and party candidates make appeals to voters. very big part of the postmortem as you mentioned. >> host: how are pubbings doing

republicans doing for data gathering and? >> guest: i think they're improving that the methods they used. democrats obviously did very well in 2012, harnessing big date too to make crow target voters in communities and both parties will do a lot of that in 2014 and 2016. >> host: from massachusetts bill, republican line. >> caller: good morning. today the federal government either prints or borrows 45 to 47 cents of every dollar it spends. in contrast, c-span, whose birthday is this week, 35 years. >> host: today. go ahead. >> caller: c-span, since c-span's birthday today, on the 19th of march in 1979, they have lived within a budget of 10 cents per viewer. and they have not only --

>> we are very pleased to be joined by laura donahue, professor of law at georgetown law school. jameel jaffer, director of legal at aclu. julian ku. rachel levinson waldman. liberty and national security program brennan center for justice. >> thank you very much for the opportunity to be here today. i'm looking forward to the discussion on 70. i would like to confine my remarks to four central areas, just my initial remarks and raise statutory and constitutional concerns. first with regard to targeting. i'm particularly concerned about four areas here. first is the inclusion of information about targets and not just to or from targets. second is the burden of proof regarding whether somebody is a u.s. person or not. third is with regard to the burden of proof regarding the location of the individual. that is if the nsa in either

instance does not confirm, does not actually know where they are, the assumption that is built into the minimization and targeting procedures it is neither a u.s. person nor are they domestically locate and there is no affirmative duty for due diligence for the nsa to actually check their databases to find out if that individual is or is not a u.s. person and is or is not in the united states of the implications for the right to privacy. in the second area on the post-targeting analysis, i'm particularly concerned about the role of fisc. that it is severely circumscribed that we have warrantless searches. the last panel, the moment the information is obtained and there is not search and there is exception for gathering that intelligence. when the information is used for criminal prosecution, at that point when the data is searched if it were a case, if i were say speaking with a mobster in the united states and they happen to overhear incidental to my communication that is i was engaged in other criminal

activity they would have to go to a court to obtain a warrant to put a wiretap on my phone and listen to the content of my communications. in this situation they don't do that and they find that individuals are implicated in criminal activity and refer it for criminal prosecution. and i would be happy to address the two foreign intelligence surveillance court of review opinion that addressed this aspect, with regard to title one which probable cause already has established a target was a foreign power and agent of a foreign power. in this particular case the individual is not a target of any investigation so the fourth amendment threshold has not been met. the third area is the retention -- >> please slow down. i can't keep up, thank you. >> we have a court reporter whose probably fingers are -- >> beg your pardon. i realize we only have a few minutes. i also have written remarks which i will be submitting following -- >> reviewed what you submitted thus far so. >> so i will be submitted on these particular points

following the hearing. on the third area, the retention and dissemination of data and this came up with judge walled's question on the previous panel -- wald. there have exceptions when the information has to be expunged. foreign intelligence information exception i would direct your attention to. not defined in 702 specifically or minimization or targeting procedures. it is however defined in fisa to include any information that would be helpful for foreign affairs which would include economic information, it would include political information. it would include a whole range of data. the retention dissemination for criminal prosecution i raised the fourth amendment concerns. we're starting to see now in courts what is called parallel construction where individuals, where information has come from intelligence agencies programs. it is then passed on to law enforcement who then must create a parallel trail for probable

cause but the actual tip or initial indication of criminal activity came from intelligence and it essentially covers the traces that this initially arose within fisa or within section 702 and i have increasing concerns certainly as scholarly matter about the growth of parallel construction. the client attorney privilege you already mentioned in the last panel. that continues to be i think an area of some concern. not just because, not just in the post-indictment stage but in terms of all communications with attorneys prior to and in the context of interception of content. the retention of encrypted communication was not mentioned in the last panel. all encrypted communications are retained according to nsa documents as well as the technical barriers. if there are technical barriers they also will simply keep the information. the other aspects of this have to do with multiple databases and cia access which i was surprised you didn't have the general counsel of the cia on the last panel.

we now understand from nsa document that is the cia has separate set of miniization procedures and uses section 702. i think that is important to take a look what the procedures are both the targeting and minimization. finally the fourth area that i would just like to raise is the first amendment concerns that i have as has been well-recognized in the judicial system, first and fourth amendments often travel hand in hand especially in national security when political matters are on the line. and in this particular instance not only do we have a general first amendment concern but we know that if individuals visit ip addresses for instance, that have been associated with particular targets then there are correspondence, communication, emails, et cetera, are an information is also retained. what is that ip address al jazeera i'll say? what if the ip address happens to be media or news site associated with a particular area of concern?

i think there are also first amendment implication that is follow from that. so in conclusion i would be happy to talk in more detail about each of these areas, the targeting, the post-targeting analysis, the retention and dissemination of data and final first amendment concerns. >> thank you very much. mr. javier. >> thanks. >> thanks for the opportunity to appear before the board. aclu view as you already know that section 702 is already unconstitutional. the statute violates the fourth amendment because it permits the government to conduct large-scale, warrantless surveillance of americans international communications. communications in which americans have a reasonable expectation of privacy. in our view the statute would be unconstitutional even if the warrant requirement didn't apply because the surveillance it authorizes is unreasonable. as i discussed at more length in my written testimony, the statute lacks any of the indicia of reasonableness that the

courts looked to in upholding other surveillance statutes including title three and fisa. but the point that i would like to emphasize today, even leaving the constitutionality of the statute to the side the government is claiming and exercising more authority than the statute actually gives it. i say that for three reasons. first, while the statute was intended to augment the government's authority to acquire international communications, the nsa's minimization and targeting procedures give the government broad authority to acquire purely domestic communications as well. that is because the nsa's procedures allow the agency to presume that its targets are foreign absent specific evidence to the contrary and because the procedures don't require the government to destroy purely domestic communications obtained inadvertently. instead they permit the agency to retain those communications when they're believed to contain

foreign intelligence information, a phrase that is defined very broadly. second, while the statute was intended to give the government authority to acquire communications to and from the government's targets, the ns aft's procedures also permit the government to obtain communications merely about those targets and that practice in my view find no support in the language of the statute or in the statute's legislative history but it's a practice that has profound implications for individual privacy. in order to identify the communications that are about its targets, the government has to inspect every communication. to endorse the practice of about surveillance is to say that the government can surveil literally everyone or at the very least that it can surveil every communication in and out of the country. finally while section 702 prohibits reverse targeting the nsa procedures authorize the government to conduct so-called back door searches, searches of communications already acquired

under the faa using selectors associated with particular known americans. given the absence of any meaningful limitation on the nsa's authority to acquire international communications under section 702 it's likely that the nsa's databases already include the communications of millions of americans. the nsa's procedures allow the nsa to search through those communications and to conduct the kind of targeted investigation that is in other contexts would be permitted only after judicial finding of probable cause. if i have 30 more seconds i would like to make one final point? today we're focused on section 702 but it's important to understand that section 702 is merely one expression of a broader philosophy. yesterday "the washington post" reported that the nsa built a surveillance system called mystic, capable of recording all of the country's phone calls, allowing the nsa to rewind and review conversations as long as a month after they take place. mystic is logical end point of

the argument that is the government is making here today. so the stakes in the conversation that we, that we're having today are very high. it's very difficult to believe that democratic freedom would survive for long in a system in which the government has permanent, as a permanent record of every citizen associations movements and communications. thank you. >> thank you. professor ku. >> thank you. thanks also for the opportunity to appear before the board today. i just want to remind, i have a different view i think from -- i apologize for not giving my remarks ahead of time. i want to remind the board of two underemphasized points of constitutional law that i think should frame our understanding of the u.s. government's surveillance practices under section 702. i mean first, it is important to remember that section 702, and fisa itself, need to be interpreted, understood bense the history and tradition and background of the president's brought inherent executive power

under the constitution to conduct electronic surveilance of foreign governments and foreign agents, especially overseas. second, although we often speak loosely of the fourth amendment's limitations on this foreign surveillance power it is worth noting that courts have repeatedly upheld wide-ranging, warrantless, u.s. government surveillance overseas even of u.s. citizens. so these two constitutional observations should frame any legal assessment of section 702. and fisa in general. if you keep in mind the background where we're coming from rather than where we are, 702 is not an ininefectual attempt to regular late lawless executive conduct as the critics would have it. in actuality, section 702 almost certainly requires more limitations than are actually required by the constitution. and may even, although i'm not taking that position today, but could in same circumstances encroach on the president's foreign affairs powers to

conduct foreign intelligence activities. so let me just briefly elaborate on these two claims about constitutional law which i'm sure some folks think -- with. this is not disputed. u.s. presidents long exercised the power under the constitution to conduct foreign intelligence and this power uncontroversially flows in the president's chief of foreign affairs under the constitution and almost every court considered the question has concluded that the, has agreed the president possesses an inherent constitutional authority to conduct foreign surveillance and this is undisputed by any court. in other words there does not need to be statutory authorization for the president to engage in foreign surveillance. prior to the enactment of fisa in 1978 the executive branch claimed and courts did not dispute it processed broad constitutional power to conduct surveillance for foreign intelligence purposes even inside the united states and usually without a warrant. prior to the enactment of 702

and its predecessors, the executive branch claim ad constitutional power to conduct warrantless surveillance in foreign countries for foreign intelligence purposes whether or not that surveillance include ad u.s. citizen who is physically overseas. so, given this history i would ask the board keep in mind that section 702 and its predecessors place more constraints on the executive branches's conduct of foreign overseas intelligence gathering than ever been imposed in prior, in the past. you might conclude we need even more constraints but we should not kid ourselves that existing constraints or even more constraints as oppressed by some other folks are consistent with historical practice and tradition and moves us further toward constraints. as my second point i do not believe the fourth amendment imposes limitations on foreign intelligence as those employed by section 702 and let me briefly explain the two reasons why. first it is very clear the fourth amendment does not apply

to non-u.s. citizens when they are outside the territory of the united states and supreme court confirmed this in 1990 decision of united states versus credo. so foreign citizens, surveilance of foreign citizens outside the united states is completely unconstrained bit fourth amendment. second, courts have confirmed highly unlikely the fourth amendment's warrant requirement applies to surveillance of u.s. citizens when they're outside the united states especially when the surveillance is conducted for foreign intelligence purposes. no court in the united states has held that a warrant is required for a search of a u.s. citizen when they are overseas if that search was conducted for foreign intelligence purposes. some courts like the second circuit have even held no warrant is ever required for an overseas search while others relied on a broader foreign intelligence exception. so there are further details here about the reasonableness. courts have generally interpreted the fourth amendment

reasonableness requirement very generously in favor of the government when conducting overseas searches again in light of this long history and tradition of the united states government conducting essentially unsupervised foreign intelligence gathering without any statutory authority. this is actually the tradition in the u.s. system prior to the enactment of fisa and more recently section 702. so just section, just to conclude, if you look at section 702 the government face as complete ban on the intentional targeting of any united states person reasonably believed to be outside the united states. and there are other procedural mechanisms as you know about. but i don't believe it actually, fourth amendment would require if there was no section 70, the fourth moment would require that the government could not intentionally target a u.s. citizen overseas in their communications. so, let me just conclude. i believe section 702 should be understood as a sensible compromise between privacy

interests an the continuing need to conduct aggressive foreign intelligence gathering. congress has given its blessing to broad based overseas surveillance that was already occurring pursuant to the president's inherent constitutional power. congress has now imposed limitations on his activities that go beyond what i believe the fourth amendment requires but i think that is small price to pay, many of us agree to minimize privacy intrusions to american's overseas communication. this is type of political compromise and cooperation between different parties and different branches of government that we always wish we always say we want. and so i think we should applaud it, rather than condemn it. >> thank you. miss levinson-waldman. >> thank you of course for having me here. i have a few brief comments and i hope we'll have a chance at some point to potentially respond to comments made during the first panel or during this panel. so i'm just going to focus

briefly on two primary issues reflected in my written submission for now. i know the board is particularly whether this about collection complies with the letter or spirit of section 702 and based on the structure of the statute we believe that it doesn't. briefly there are two main restrictions reflected in section 702 on the collection of communications. so that would be first, that the acquisition can not target u.s. persons or persons known to be within the united states. this is a geographic or nationality and residence restriction. and second that the purpose of the acquisition must be to acquire foreign intelligence information and that's basically a content restriction. what that means is that the content of the communications that can be picked up by electronic surveillance is regulated by the foreign intelligence restriction while the class of people who are subject to electronic surveillance is regulated by the targeting restrictions. when --

[no audio] >> we're having technical signals from the program we've been bringing you on government surveillance programs. the brought to you by privacy and civil liberties oversight board. we're working to correct the problem. we hope to return to live coverage in a moment here on c-span2.

[no audio] >> it appears we have fixed problem. we'll go back to the discussion on government surveillance programs. >> specific person, but anyone feel freel to jump in. professor ku, you talk about the limited applicability of fourth amendment to overseas collections and maybe, really no

warrant requirement and very generous reasonableness standard. one question i have is, the collections that we're talking about under 702 technically are happening in the united states. that is the electronic communications provider in the united states while admittedly the target is outside the united states. is that a distinction you think has any constitutional significance? >> that's a great question. i think it reflects the difficulty of this, which is the technology is changing our, the way the fourth amendment was interpreted in some of these older cases, right? so the in classic fourth amendment overseas case it was guy searching through the house or apartment physically overseas of the u.s. citizen or of the phone call that occurred in the foreign networks, right and the foreign country. here we have this kind of weird situation where you have phone or oral communications transiting through the united states. i do agree that might raise a harder fourth amendment issue but i do think that the larger thing to keep in mind is that the geography matters because if

there's a foreign person on the other side of the line, so to speak, that is i think in part the way, the communication is, international communication. it has a different implications for that perspective. i do agree that the fourth amendment, the territorial aspect of the fourth amendment would be less significant in that context. i think the broader point though is that the courts have been very generous both domestically and internationally about surveillance conducted for foreign intelligence purposes. and that is, so even, the territorial distinction was something that fisa created because prior to that i think fiz sachs before intelligence gathering occurred both domestically and internationally, it was foreign intelligence what mattered. fisa created this territorial division i think is becoming less important with the changes and types of communication we have. >> if i may add to that,

professor ku brings up the exception for foreign intelligence gathering for purposes of surveillance. that is very different from acquisition of the information for purposes of prosecution and here the courts have very clearly ruled even in cases of national security or domestic security a warrant is required. this is versus u.s. district court, a case handed down in 1972 where three individuals were conspiring to the bomb the cia the court said the executive brand of. quoting justice brown and others, the executive branle such not disinterested neutral observer and can not be put into the position determining whether a search will be reasonable. they have to seek a third opinion on that. in katz as well in 1967, some of the justices in that case, justice byron white went beyond the decision and dicta. we should not require warrants procedure for magistrate's judgement if the president of the united states or chief legal officer the attorney general has

considered the requirements of national security and authorized drone i can surveillance is reasonable. other justices responded very angrily to that statement. justice william brennan, and just william owe douglas, they said there was conflict of interest. neither the attorney general or is magistrate in matter where they believe national security are involved they are not detached and disinterested as a magistrate must be. court of review also considered whether or not information obtained from fisa warrants could be used in the event of a prosecution. in the indicates that brought down the wall in 2002, the court looked to title i of fisa where probable cause had been established that an individual was a target, sorry that the target was a foreign power or an agent of a foreign power and said in that case you have this review that has gone on specific to that target by the foreign intelligence surveillance court n section 70individuals who may be brought up on criminal charges are not themselves the target of any investigation.

no probable cause has been established for their involvement as a foreign power or agent of a foreign power. instead once the content of conversations are obtained then the government may go through and analyze the information and look for evidence of criminal activity which can then bring them into a courtroom to face criminal charges. and at no point is this warrant requirement which the court has held for domestic security cases. so here you have a u.s. person on u.s. soil, and the court has said in u.s. versus u.s. district courts you have to have a warrant in that situation. so to use the, the veneer of well, we're just collecting foreign intelligence and the executive branch has the right to do this under article ii, yes, perhaps executive branch can gather intelligence but if there are criminal penalties associated you also need to meet the requirements of the fourth amendment for u.s. persons. >> i would like to give professor ku a chance to respond although -- >> okay. well, i mean i'm not going through all the cases and, i

think that the way i understand this, it is foreign, the way you think about this is the foreign intelligence purpose, right? foreign intelligence purpose has been sort of, important part about whether there is exception to the warrant requirement, or if there is foreign tell against purpose, sometimes a primary purpose or a purpose, depending how you define it. then there is whether that goes to the question of reasonableness. whether legitimate government interest, goes to the question of reasonableness. the reason i'm emphasizing the significance of the foreign intelligence purpose aspect of this and territorial aspect of this because i do think it is relevant. this is in fact what is going on here is a collision between our law enforcement and intelligence both here, right? so the u.s. government is gathering a lot of information for foreign intelligence purposes. it is also using sometimes the information, some of that information, is although they're not i think so far frequently leaking into criminal prosecutions but if we start from the perspective of foreign intelligence gathering, right,

this is article ii. this is where we start and this is something that is largely been unregulated, right. what is changed the nature of communications have changed, so many communications were essentially gathered unsupervised for foreign intelligence purposes are being sort of routed in a different way so that it falls within technically speaking what we might consider a different sort of format which then looks like more like a classic fourth amendment case. but i think that the larger point i'm trying to emphasize here, there are real fourth amendment issues here with respect to law enforcement but this is also about foreign tell expense gathering. it is not just a total sham. it is not as if the government is claiming here that this whole thing is a scheme in order just to get, gather information for criminal prosecution. essentially they're are both interests part of this analysis. that legal analysis with respect to foreign intelligence gathering needs to be considered and, it should frame