>> there are consumer protection issues. i'll reserve my comments strictly to bit coin and decentralized currencies. when you look at bit coin especially, we haven't even released version 0.9 yet, so we're not on version 1.0, it's very much still an experimental currency, and it should be a high risk environment for consumers and investors at the moment. that's changing over time, as businesses like mr. olairs and others are coming into the space and building the service layers on top of the protocol, to make it safer for consumers to move in. those service layers are technological, bit coin is referred to as programmable money, you can build in layers of escrow and dispute mediation and things like that, right into your payment structure, which is a very interesting concept as most of the laws that exist for consumer protection and payment space were built around

traditional methods where those aren't possible. you don't need as much regulation on the consumer side in the long term to the midterm as the system grows up. in the short term, consumers should be aware this is a high risk environment, and it's not quite ready for mass adoption today. that time is it coming, but it's not here yet. >> thank you. >> mr. allen opinion. >> i don't think i have much to add, other than to say, one of the groups i met with are industry leaders. they view as the other panelists do, virtual currency akin to cash. there is no fdsc. there is not that level of protection. so i think it has to be viewed as high risk, and i think the points that the other pannists made about the fact that consumer protections are part of

a work in progress, but certainly something we need to be aware of. >> the -- in anticipation, this hearing is asking our staff -- tell me a little bit, who was the creator, who are the creators? and i'm told that the protocol was developed by -- either by a programmer or by a group of programmers, that go by the name toshinakamato. is that correct? and with all the money and attention that's been given to bit coin, it seems strange to me that this -- either this individual or group would choose to remain anonymous. what do we know about this person? what do we know about this group. does it matter that his or her or their identity remains a

mystery? who wants to go first? mr. murck. >> i'll field that one for everybody. so toshi nakamoto is the creator for they who develop the bit coin protocol into the world in addition to the code base, that was open sourced to the entire community. this person or group of people has since left the scene, at least if not more than half of the code base from the original code has already been rewritten. while i think everybody is grateful for that incredible contribution at this moment in time, who sitoshi is is a story of bit coin going-forward. that was intentional and

possibly why a pseudonym was chosen in the first place. >> i want to address, it is a little strange that bit coin, we don't know who the creator is, and so that often conjures up the idea that there's a risk that we have not seen -- >> you don't think it was al gore, do you? >> you know, he's never denied it. >> but i think the key thing to emphasize is open source. open and audible and available for anybody to look at. mr. murck said, more than half of the code base has been written by others. i'm confident that it's -- the software is what it says. >> we're just about to start voting over in the capitol, so i

think we'll wrap it up by -- i just want to say -- i'd love to quote albert einstein. he said some memorable things, one of the things he says, in adversity lies opportunity. but inadversity lies opportunity. god knows there's plenty of adversity with respect to these virtual opportunities we talked about. it's not just potential, it's not just possible, it's real. we need to be not just mindful of that, but make sure we contain it and eliminate it where we can. i know one quote attributed to mrs. einstein. i find it relates to my -- mr. einstein was asked if she

understands her husband's theory of relativity? she responded, i understand the words but not sentences. when i first started trying to understand what this was all about, i sort of felt like mrs. einstein, i understand the words but not the sentences, with the help of our first panel and all of you on the second panel, and with the help of my staff and a lot of other folks, i'm starting to understand more than just the words, but a few of the sentences too. that's why we wanted to hold this hearing, to understand the pitfalls that come from this technolo technology. i said earlier, i thought the first panel gave us a lot of

information. i thought they were thoughtful. it was encouraging and i find that that's been true here with this panel as well. on behalf of my colleagues who are not here, who are flying in from all over the country right now, in order to make this 5:30 vote. thank you. they don't know i'm thank you, but i'll thank you in their absence. >> we have a shared responsible aeblts in trying to make this work. with that, i think we'll wrap it up here, and i'm going to note that the hearing record will remain open for 15 days, that's until december third at 5:00 p.m. submission of statements and

others for the record. i would ask you respond to them promptly. our staff, especially months ago, i want to thank our staffs, both majority and minority staff, and for you and our first panel for joining us today. on that, we're adjourned and thank you so much.

>> we will be starting the final panel, which involves academics and former members of congress. i'm pleased to be joined by jane harman, a -- jane former member of congress. and a professor at george washington law school. and the principal with key strategies and former federal prosecutor. and eugene stafford, professor of computer science and insurance security at purdue university. the university.

we will do another round of five minute questioning after introductory comments. >> my apologies for being a few minutes late. but i'm glad to be here. i consider myself one of your grandmothers. i was a principal co-author of law of 2004,nce which established you. and one of the tragedies, i think history will record, is that you were not fully functioning until may of 2013. that is about 8.5 years lost of a very critical mission. let me just say that a goal in the law, certainly my personal goal was to have in the law certainty that liberty and security were reinforcing values in the policies and practices that we established under the

law. is -- if ever that function were needed, it is right now. me that youunate to were one of the best kept secrets in washington. i know you are making a massive effort to get out there and i commend you for it. urgenthink the need is and you, uniquely among the different groups in looking at arepolicies and practices, able to make sure from the inside that we are doing the right things. let me make two other points. germanyas in berlin, , a week ago today, at , dinner for top policy types think tank leaders, and business people. all of whom were shocked and horrified by the revolution -- europeanns revealed in

newspapers. when i told them that i was testifying next week, they looked stunned. and they said, gee, that is wonderful. i hope that a group like that will also be in touch with foreign governments. so i put that out there. i'm not sure if that is in the mandate or it is not, but it might be interesting to think about connecting to those folks and may be forming some common cause about ways to look at the practices and procedures of different countries. and finally i will offer my .bservation about this our government needs crisis management 101. it seems to me as a politician that when bad stuff is coming and i were just imagine that when some guy named snowden

is taking all of this information from the government and ruling it out, you get a frame in the context and you talk about what else can come .ut and what it means this is just free advice from someone who spent 17 years in the u.s. congress. some crisis management function from our government at the highest level could be helpful, along with a robust privacy and civil liberties board. i have been in this game for a long time and i passionately hope that things turn out well for our country, and that we have both security and liberty to look forward to. >> i am professor kerr. thank you for the invitation to testify this afternoon. the fisa statute is premised on a search warrant model, putting article three judges in the position of evaluating search warrant applications.

and that model is not working, because the search warrant model is premised on the judge serving essentially an admin -- and in role.erial the judge is not trying to conduct a conference of review of whether the statute is being abided by correctly, what it may determine, and what the consequences might be of the warrant is issued. that does not work in a high- technology area, because technology is simply changing too quickly. judges are, therefore being uses of resolve typical interpretation, which they are not equipped to answer in this antext, a context such as search warrant application. this was discussed earlier this ,fternoon at the earlier panel ways to restructure and make amendments to the war and model. a special advocate approach is one approach, encouraging

disclosure. encouraging interpretation is another approach. both of those are interesting and promising ideas for how to reform the foreign intelligence surveillance act to deal with new technology. let me suggest two other approaches, one which has been discussed and implemented and the other which has not been. one is content provision. having the government authority last for a certain number of years, and then expire putting the burden on the government to secretly love that power. sunset provisions were originally designed to have testing to see if the government a fewneeds that power years later. today, in light of technology, it is a way to make sure that government has to go back to congress to seek approval for any new interpretations of the law. combining sunset authority with disclosure of interpretation

that the fisk is taking is an important step. but another approach that has not been suggested so far is a rule of d for foreign -- rule ofleddity with in the context of the law. that judges should adopt the narrower interpretation of criminal law, and that implies that government should have a broader -- to have a broader interpretation of the law, they have to go to the legislature and enact it. the idea being that it is ultimately up to congress, not the court. this rule would serve a similar function. if it is a close call, the default should be for the fisa court to reject the interpretation and tell the executive branch that they have to go to congress to get approval for the interpretation

of the statute. branch tohe executive go to congress and not seek who are notm courts equipped to analyze the enormity of the questions and the sunsets, essentially a provision and the rule working together to force the executive branch to keep going back to congress as technology changes to have congress approve or disapprove any new surveillance programs. >> thank you to the members of the board for inviting me to testify today. it is quite an honor. as a formery hat congressional staff member, i would like to raise to transparency points that i think tol raise -- will relate some of the discussion on

earlier panels. we heard on a prior panel the idea that the fisk having had, or currently having a mechanism to seek review of an outside technical expert. i think that is an excellent idea, but it is an equally important resource for staff members and members of committee. my ex variants working on the electronic forms privacy act, which was not done under essentially working with classified information mama myself and my colleagues were able to contact outside experts, professors at universities, people who worked in the telecommunication industry for decades in order to get the view of current capabilities in where it was going in the future. it should not surprise anyone that the government's views did

not comport with the views of the outside expert. the government as an advocate. a very important mission to do and present the view of technology in a way that west represents its position. what outside experts could do, in addition to getting a different view from government was helping the committee look to the future to understand where the technology and its capabilities were going so that in the course of trying to write would not become obsolete with the new iphone model, we have the necessary information for forward projection. secondly, and this point goes more towards the discussion on 215 and something the judge raised on the first panel about things that have been said in

different press outlets by regarding therts fact that the government interpretation was perhaps novel or a little idiosyncratic, certainly not something that people who were perhaps experts and- surveillance law could read the statutes and say i could see how the bulk of authority would operate under the statute. what i would like to raise is a problem that occurs from a process level as a committee staff member, especially on the judiciary committee. certainly we hear classified information and often have three things behind closed -- three things behind closed doors but committee members interact with non-governmental state holders who have real interest in how these are written and how they

affect the privacy and interest of the general public. when you have a situation that a government legal interpretation is essentially hidden from , the dialogueure that must occur between the staff and committee members and these non--governmental constituencies, sickly can be very dysfunctional, because when you discuss why you want to make a change with a statute but are not able to talk about what you think the change will do, it can the the effects of having governmental constituencies argue for changes in the law or reject proposals that are not in their interest. i think that raises a very problematic process question calling into question the integrity of the legislative process with respect to legal thatpretations of statute

must remain hidden from public disclosure. law am not a scholar of the but of systems. find wayssystems and where they can be studied or bolstered. the first is we have heard about how carefully this is controlled. that it. the professor scrubbed the takemation we can perhaps that as given and relies we do have a number of people working very hard in the nation's defense and interest. privacy ised with the systems are constrained and controlled within a very small they can swing out of

control beyond what is intended. this is by no means unusual given the history. this was used for political games that were later rolled unconstitutional. what we need to do is look at where are the points in which this can be controlled? where are the points we can observe to make sure the system cannot be subverted. we are lacking in the transparency. the fact that people who have the order served against them cannot talk about them, cannot areg them up for a court

all considerable problems in terms of writing any wrongs or oversight. that should be addressed. in particular, we have heard how elected representatives are unable to hear all of the information about the programs, to engage the cleared staff and have conversations with each other about the issues involved. to my knowledge, we have not elected any terrorist to congress. we are not in a position where we have terrorists in the judiciary or operating isp's. from safeguarding those individuals, it is really counterproductive to the interest of the nation. i would suggest you look at that is one thing that might be considered. in general, i believe classification is overused. anything that is classified should be classified only to protect the safety of a party or for operational efficacy.

it not -- should not be used to hide things from the american public. things that are classified when the american -- when they come out, the american public should not be ashamed of what the government is doing, and we have seen instances of that in the past few months. won't makecomment i us more technical. i circulated a set of fair information privacy practices that have been put together by the u.s. public policy council. good privacyvern and databases. i would ask that you look at those as you consider possible changes. the more of those upheld, the better we protect the privacy of information. the more information we collect, the more likely we are to collect noise, particularly if it is stored for a long time. in any system, the more we try to avoid false negatives,

missing cases of things we are looking for, the more likely we are to generate false positives. there is a concern for the american public that in the process of trying to be sure we stop every care -- terrorist process, we cast the net that is likely to engage individuals that are involved in unusual but not illegal behavior. i will be happy to answer questions later. it is a pleasure to be here. brief.try to be very we have heard a lot today about the idea of a special advocate, so i thought i would focus my remarks on that proposal. i suspect members are familiar with a research report that was disclosed last week about constitutional concerns with the special advocate and thought i would briefly -- briefly address them. first, the report suggests a

special advocate would raise article to problems with regard to the appointments clause and how that is set up. i think this is perhaps a non sequitur. i do not think there is any current proposal that would actually constitute the special advocate a something resembling what the supreme court referred to as an office of the united states. i think this is a bit of a red herring. of issues iscket concerns about adverse miss -- ness.se mis this has been an effect. the judge raised this concern as a possible rejection to fisa. i am happy to elaborate more on why i am not convinced this is a problem. i think the only relevant point is a special advocate would not exacerbate any adverse concerns

that exist. that is to say, there may be concerns. having an adverse party only not make them worse. instead, i think the hardest issue raised and one i think that is the greatest head scratcher for the special advocate is the appeals question. the supreme court just said and proposition eight that a party must have a direct stake in the outcome in order to appeal an adverse decision by a lower court. i for one am pretty confident it is part of the article three court system. obviously, i think some of the current proposals would not invest with such a direct stake in the outcome. it seems to me there are two responses to the problem posed by the perry decision. the first is to create a direct stake. to have the special advocate. not representing a

undifferentiated interest but to represent u.s. persons who communications might be thercepted or so went to surveillance being authorized. that might raise policy questions difficult to think about. certainly we have precedents for such separated representation. class counsel. class action. even for example, habeas corpus -- -- lawyers. one possibility around the problem is to create the direct stake. the other is to avoid it. i suspect there has been some discussion among the board about aboutea of certification the possibility of having the fisa court certified. this could be modeled on the decision.urt this allows for circuit courts right now to certify questions to the supreme court at any time

and whether or not a party is asking for such certification. another possibility is to borrow a possibility from the bankruptcy context and bifurcate the decision into those that they are allowed to enter the final batter. in which case the court would be empowered to act finally. those in which it could issue a report and recommendation that fisao be confirmed by the court to review on appeal. that is how the bankruptcy court perceives right now. it is another way to get around the problem. the larger point is i think the appeal question should not distract from the advantages of having some kind of adversarial participation. even if we cannot ultimately solve how we will be allowed to proceed.

>> thank you for joining us today. you see it over time emma both risk respect to the judiciary committee as respect to receiving reports, exercises and oversight function in addition to the intel midis. do you think we are in the right place right now in terms of congressional oversight.

or should congress be taking a fresh look on how it exercises oversight capabilities. might make sense to go from i left to right. >> i think it is a great question and something that has to be revisited. i was there, working and the white house when it was passed in 1978. group thatart of the passed the bipartisan law but was impressed by the fact that the basis is robust functioning of all three branches of government. executive branch policy review the fisa court and overseen by the congress. that was the deal. that worked very well until 9/11 9/11 then the events of and the fear of ongoing 9/11

caused the bush administration to feel that we need a dramatically enhanced response .r aggressive approach they ignored fisa for a couple of years, which i found out afterwards. i was a member of the gang of eight and congress pushed back to catch up to technological change. fisa and other laws, patriot act and other things mentioned certainly executive board -- order 12 triple three are in place now. what is my basic answer to you? i think robust oversight is crucial. i think it should extend the on the intelligence committees although i think they have special roles because they have special understanding or are supposed to. i hope i did. of what the challenges are. of the reach of

the programs, all members of congress should have some role in oversight. i think the challenge is that the change is in tech knowledge he. others on the panel know more about that than i do. very hard to craft either at law or oversight regime that can iphoneate what ipad or six will look like and what capabilities it might have. but what else will be out there that we cannot imagine or i cannot imagine. i am the grand mall. these kits can probably imagine it. can probably imagine it. >> this is largely outside the area of my expertise. one area that i think matters a lot is what is the reference point that congress is looking at the question from? so if there is a sunset

provision or the pfizer board is taking conservative interpretation of the law, the executive branch has to go to congress and get something from congress, has to persuade. when the executive branch is an up position of needing to persuade, that is going to lead to better oversight than the opposite. if the fisa court is taking an aggressive interpretation of the difficult,relatively i think, for the legislative branch to get the kind of oversight it means. effectively trying to say what might be going wrong that has been approved by the fisa court? at difficult position to be in. one of the benefits of the sunset revision is it effectively means the executive branch has to go to the legislative branch and make the case of affirmatively. i think that will lead to better oversight. >> i will take the and of what

professor kerr said and when the toislative branch has to go the other branches, the legislative branch has to stay engaged. if the executive needs to ask congress for something on a regular basis, members will stay engaged, it is going to be a priority. i think it needs to be a priority. thank you. >> enqueue. just to follow up on the question of congressional oversight. those of you who are here for the previous panel heard me ask about the proposal to return requirements where's the government would have to tell what they were doing after-the- fact. it is not congressional oversight but judicial oversight. i have a cynical view that it is a fig leaf and not professional oversight.

so that was the reason for my question earlier. the same question about congressional oversight. very granule of -- granular. -- if it were increased to include very granular reporting, watch what congress do with the information, and does it enable a greater level of oversight the net are ready exist? are ready exist? >> if i were not an optimist i would not have served in congress for 17 years. i think it is a tragedy we seem to be basically in ordering the regular order of the committee process.

even the granular stuff, they are very smart people, sitting right here. there are members who care about getting it right. yes it will take a commitment of resources to get it right. i think the challenge will be keep moving.s that it will change because the of our technologies and what the bad guys can do are evolving and keeping on top of that and understanding what that means and understanding what the requirements are, not just what does the law say, but who should lead be focused on and how should we be doing this?

it might just in two years or 10 minutes not just be phone numbers and bad e-mail addresses, it could be something in the crowd that i cannot even imagine or something beyond the cloud. >> obviously you want reporting requirements for information to be useful, but without it, what can congress do? >> i found one of the most of theging aspects reform of criminal investigative authorities was just getting accurate information about how technology functions. often the government was using certain types of authorities. metrics forf dedicated staff and members, and they are there, is very useful, but if it is not there, where is the starting point? >> do you have a view on what

kind of information that could be provided that would be useful? >> i wanted to add to that that reporting is not sufficient. with the technology and complexity, i can craft a report that says everything and means nothing to the people who read it because they do not have background. unless we allow those with expertise in the area and time in office, and largely a staff function, the ability to ask questions to be brought out to either the court or to elected representatives, they will not be able to understand what is going on with some of the very complex technical issues. i come back. i have this concern that reports have cap staff from being able to be briefed or aware of these things or to discuss it with members. many of the members have

background in law where they do not understand the technology and depend on staff to help them get bits of information. >> i think there is also an incentive problem. everyone isgree working in the best interest of their constituent. the problem is when this all happens in the dark, i do not gow what the incentive is to down and spend hours and hours going through materials they may not even understand. last tuesday's hearing brought this out quite sharply. when you have the intelligence committee say it is not a violation of the privacy if you do not find out about it. the question is, how do we change that mentality among the members that are tasked with the oversight function? heart of that is not just underreporting and better opportunity to engage reporting but some mechanism to which it is more in their interest to exercise oversight, as opposed

to keeping things under the rug. your question was not just about reports, i thought it was about oversight. oversight is much more than reports. it can be offensive to. i am told back in the day, michael o'neill read every single fisa application. read every single one. that is pretty darn good oversight, assuming he it when he was reading and a pretty smart guy, still around. that would be impossible now. too much going on. it seems to me the right people motivated the right way with adequate resources and part of that is the determination to focus. do not sell members short.

some members are keenly interested in this. they can make it a priority to focus on this. i think we need a staffing pattern that enables members to do that. i think there are members that have been and are very conversant with oversight. >> earlier you said there was a concern that more information you collect to avoid may -- false negatives is the greater possibility of false positives. do you have an alternative for alternative -- accomplishing the same goals. access information at the provider level. using a federated search model or something similar to that. what are your thoughts on

technological solutions to avoid the problem he seemed to be concerned about. >> it is difficult to give specific examples without delving into specific systems. i will say from general of what press, theyof the collect all of the information in case it is useful and then mine all of that. the problem there is it is possible to collect huge amounts of information. introduces noise. an example of this is the analysis that uses the three hot collection for contacts. an analysis brings in car rental places and pizza places and

introduces more noise. it would reduce the amount of searching, data necessary. fundamentally it is hard. a question of where are our values here. the hopes of catching every last person who is harbored an in the know call thought. somewhere there needs to be more balance where we are willing to sae intelligence methods for guarding ourselves and not try to head everything off. >> thank you. earlier you talked about a potential model. how would you square that with

of havingce needs that nonvital order of having the government engage in surveillance could delay critical surveillance activities while the review process goes forward? >> i think it would not be that difficult. you could narrow it down to a preliminary injunction. the preliminary order by the fisa judge would be sufficient to allow the government to act on it interim basis, pending review and finalization. the idea is that with called both problems. it would allow for a subsequent retrospective review without running into this. the bankruptcy court has the pending review. >> when you have the supply? >> we have heard the vast

majority of the routine request that do not raise technological issues -- would you have the bankruptcy model approach at every single request, and if request this? you >> the whole idea is to divide it. corporate savings from non-core proceedings. in court proceedings, this is in regards to physical cases. the bankruptcy court has the power to act finally. it is only in the non-core proceedings that you have that review. it seems to me you could have a trigger. some of the proposals include any decision turning on a significant question of law or significant departure. there are ways to make the threshold work. whether it is a novel interpretation. whether it is application of a new set of facts. the devils in the details.

this would sort cases into one of those capitals. >> how do you get to the supreme court? the supreme -- the supreme court seems to raise the controversy question of going from the review because you do not have the lack of finality from the lower court. >> the supreme court issue is still a problem. you could presumably solve it not the same way but analogous in my opinion.

they could then send it to the supreme court. the supreme court could say we do not care. the supreme court has not answered a certified question since 1981. at least they would have the ability to try to get their attention. >> enqueue. -- thank you. >> there has been a lively debate from the commentators as to whether or not it is theicient to have representative democracy model for big bulk programs like 215. elected members of congress that if they set up a .ystem for review people just have to live with that.

that particular exit strategy is not worth that much. the deeper thing is is that the right model or the model we have written about that when we get that reallyam encompasses a large portion of and people who will not have any terrorists implications afterwards. even -- not necessary even at the cost to the risk of the type of security for that to be

disclosed and operational details but the fact that we have opal program that goes to xyz. i am wondering about your thoughts. we have known each other a long time. stephanie and anyone else who wants to. >> first of all, pat, decades of service to our country. certainly you are the gold standard. a course atng harvard law school a week ago and a young woman was talking about this and said why should governmenta or any agency to put the technical side of this together? why should we and then why do you trust them? i said i start with this, there are bad guys

out there trying to attack us. i want to know who they are and prevent and disrupt them before they do that. my assumption is most of them is in some foreign place and not u.s. persons. congress tried to design a system, and i think it is pretty well building in safeguards and congressional oversight. the system got a lot bigger since nine 11. i do not know if it is the right size. i know i am not the person or if i were a member of congress now or even the lowly beat up president and ceo of the wilton center -- just kidding, i am not the right person to decide what the size is. i am much better at designing the safeguards so there are not abuses. i am pretty decided we have to haystack.te --

what are the right things. more technical knowledge should decide that. subject to review by the fisa courts and may be the supreme court ultimately depending how we structure this. i am for supreme court review so there has to be standing that is decided for. maybe that is an oversimplified version of it. i trust our government subject to safeguards to do the right thing to keep our country safe. >> let me clarify or follow-up. in 215, 1 of the criticisms, even by some isolated members of congress is we did not even know it was meant to encompass bubble

selection. is but some people in congress did. i do not know whether an that this was told was a contemplated youth, so they knew it, but maybe not until it was passed. reauthorization from when they were set up at the department of justice explaining it. apparently not everyone read them even though they could have read it. theess i am getting to question. i only raise it because it is a philosophical question. some people call it a secret law. everyone does not debate in the what isebate about

really involved. i understand the security risk, they cannot debate about a lot of security but the question of whether there is some level at which they should know something you do not read the ordinary meaning into could encompass a very novel and expensive program. to debate this. when did i know it when we were debating the victory act? a lot of it was controversial. what the white house requested was cut back by congress. several sections were sunsetted as we just discussed. whether it is the best activism, i do not know but requires congressional review. 215 was one of those. controversy about the library provision. whether a grandma taking out a library book was kind of screwed et. -- but this was

debated. i do not view this as a secret law. what precisely was the process to get information was discoverable by members of congress. i think someone not a member of congress or on the judiciary committee who wanted to know how it worked could have found out. again, a lot of stuff going on and people it distracted. this was not the public issue it has become in recent time. that again is why there needs to be a robust privacy and civil liberties the mission. this commission, had it been 2000 whentioning in patriot was reauthorized or controversial provisions, you could have. , focusedd been there attention.

you could have influenced how the changes were made. if there was anything to add to this? will try to narrow it down to your specific question about an interpretation of a statute that authorizes a type of oak collection that would not be readily apparent to a surveillance expert that read the statute. former national security prosecutor have to, so much of intelligence oversight does, and a prop up -- probably doesn't have to happen behind closed doors.

we need to figure out how it is possible might -- not to hide interpretations of the law that are perhaps not idiosyncratic or novel. when i was thinking about this issue and preparing to testify, in terms ofd me dialogue and exchange between staff members and constituencies back in the 2009 time frame was the inability to explain to those constituencies, nongovernmental stakeholders what would happen to language if it was amended in a certain way. and you have the potential for constituencies who are very interested in these issues lobbying or supporting language that was not necessarily in their interest.

i think that is a broken process but a hard problem to cure. the executive branch is going to say there is going to be if the legalrity interpretation tells people that we are collecting bulk to collect new metadata. >> thank you very much to the witnesses for coming out today. professor kerr, any thoughts on the question of review or call it appeal? you have written extensively on appeals in the criminal context. in the fisa context here, there

is interest in creating the process for getting from the judge to the fisa court of review. could that restructured that is it least as constitutional as the rest of fisa? in part because the isstitutional question almost entirely unexplored in the case law. about and we think application for an expert a case order? is that like a case, in which case is an exercise of the judicial power and need to think of it in the traditional article

some sort or is that of an extra issue that goes does notjudge that require the additional -- traditional article three to be followed? we do not really know. it is really difficult to know what the constitutional parameters are in terms of what is permissible. there is a tremendous great area and do not think there will be defining one way or the other. i seem to be somewhat skeptical that the supreme court specifically could serve as role here, and part it does everything they are doing is on the record, all in all -- all in open court. difficult to have an oral argument where they are talking about hypotheticals in an area where there are a lot of classified issues.

i do not know procedurally how that will work. impart my idea of the rule of way of avoiding this entirely. i think if you have the initial court decision. , thee rule of lenity government would have the right to appeal still. you end up with a situation where you perpetuate the current system where you immediately go go back togress or the supreme court. >> i suppose you could have the er rathernd at the fisk o than go to the supreme court. i think you have the same problem with the supreme court trying to step in. so the supreme court has never been a position to review that.

i am more optimistic about about public disclosure the interpretation of the law combined with a sunset provision that forces this to be hashed out in congress. >> i think it is important to not generalize. i would draw a very sharp distinction in the original pfizer. congress expressly provided for diversity. in both statutes. the recipient of the 213 order. the directive has given me and expressed rights to participate at the cereal before the fisa court.

it is satisfied until we get to the appeal question that i was talking about before. in the war and on text, i am less circumspect only because of of whatave a hard time is considered an exocrine show duty. majesty, not just a neutral government officer of the big government description to sign off on a warrant. could you even go so far as to is it possible to say because of the fourth amendment that the case in controversy