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 wet the case in controversy

have said that judges do this. we have said this is appropriate for judges even in the absence of this. it is right there in the constitution. asked how ever really we get more in store for judges in the first place. katie that is the answer, but it is right there in the first amendment. >> i don't think so because the case law has suggested it does not test the neutral magistrate does not need to be a judge or lawyer. could be someone who is a court clerk. it could be someone inside the executive branch who could count as a judge for fourth amendment purposes. this goes back to the difficulty of figuring out how to categorize search warrant applications.

the fact that you can have a non-judge issue a search warrant takes it outside of the and suggestsystem that may not be a judicial function. is usually a gray area. there are extraordinary context where you can pursue, seek to challenge. >> traditionally the understanding has been no. there has been some disagreement and the title iii setting. that is another murky area. a gray zone. i would like to turn to a totally different topic. our statute requires us to specificthe need for

action taken to protect against terrorism and balance that need. one thing that i think is very difficult to articulate is what makes a program effective? cannot simply be the program has affect -- an effective it has thwarted five plots, 10 plots. open to thew panelists, what other types of metrics we should look to in determining whether specific actions or programs are effective? i do not inc. wording -- th is ag plots sufficient measure.

a lot of oversight of the program. oversight adds value, in to curbing abuses. it could enhance the program, point out deficiencies. i think the metrics have to be more complex than this. i superimpose something over this, one is the changing technology, which is very hard for the congress or courts or to keep onve branch top of, which is something that bad guys are keeping on top of. inis imperative to factor changing technology. they need to be sure the public supports what we are doing.

.hat is a role that you have i do not think privacy and security are a zero-sum game. that is your job to make sure we get both. i think it is unless it is perceived we are getting both there will be constant anger and second-guessing and drastic remedies proposed which at some point might take hold and then we lose both. >> i am not an intelligence answer to hesitate to the question but i do believe the gentlemen from the nsa made a very interesting statement, and that was the internet meta- data program was ended.

that had been public. he seemed to indicate it was ended because it was not seen as affected are providing a level that the other program was. i was very curious and do not expect the government to talk about this and public but what was the metric? picturesgetting better of terrorist groups or cells of activities because of what this program is doing first in what the internet program is doing? probably something you could acquire about -- inquire about behind closed doors. >> i think the change in collection had to do with the pfizer court. this is why it was cut back and what was collected what was destroyed.

i thought this was a great that is what i imagine he was talking about. >> there are things that can be measured, such as the cost of waldo storage necessary to hold of thee-year -- cost holdings door is necessary to hold the five-year data. there can be other types of costs calculated for protecting that. for instance, the nsa has spent a lot of money to build a large data center in utah. they can answer this in a classified setting. you can answer -- measure the

number of successes, failures, produce some measure of the number of false incidents they have investigated and spent time and effort on. how much has gone into that. can draw some copulation as to the cost per success in the cost per failure. they're after is a policy decision as to are we spending enough, too much for each one of these incidents? that requires a full accounting of what things have been prevented. apparently this collection is directed towards anti--terrorist activities. the number seems to be small relative to the number invested.

you have to get a policy decision that is certainly beyond my pay grade. court has an efficacy is not just a function of the and alsot success rate a function of the cost of the government to providing to the government and i think it is impossible to divorce her efficacy of particular surveillance programs from an attempt to figure out what the actual downside would be of adding additional safeguards and protection. it is not just accuracy but a lack of false positives on the actual positive side as well. i have a policy question that may or may not have policy implications for professor kerr and anyone else who wants to weigh in. ,t's respect to the advocate

there is an appeal to that. i think it is much more complicated in the implementation of most of the bills or proposals recognized. as i have been thinking through the many levels of details about how this would be implemented, to my mind, lots of sub questions turn on whether the advocate is someone with procedural rights in the advocate -- in the process or to give theed upon impression of law for the courts benefit. view about what it is like as they would have a in everyparticipate single aspect of the proceedings to see every single paper presented to the court? there was discussion about the back and forth that goes on between the lawyers and the government. should the advocate be privy to all of that communication like

they would in a regular political -- political process or what? do you think whether the person has political rights or not dictates there is an article three question? so on the policy question, it is not obvious to me that the details would make a major difference. part, that depends on what the role is of the special advocates and when they are brought into the case. assume we're thinking of once in a while there would be a particularly significant issue in which we would want a special counsel. >> you talk about those

challenges. once all of the facts are out there, at least for the council, it is not obvious to me is that much of a need for the procedural rights. that may be a question mark would be better able to answer. it is not clear to me giving procedural rights would make a difference in creating this. >> for example the government did not give access to the special advocate on special pieces of information. does the person have a right to it? rightare the kinds of that a party in litigation would have. what the person really be called for expertise but not

participate in truly adversarial way. that is one of the basic questions. i suppose there are questions to you have litigation over the right was fully complied with? the criminal setting like a brady violation. the litigation over the major issue leads to litigation over the sub issues. think is ad practical question of how likely that is to interfere with the core function of the council. i do not have a strong sense of what the right answer is. wherek it boils down to the judges of the pfizer court take this as a priority in make sure the special counsel is receiving the information or something that would not be a priority? i would imagine of establishing this is an important priority, something the council is entitled to might make sure the pfizer court judges do that

without requiring the issues. that may just depend on how it works. i can think of exit this just -- efficacy in aikens. this was sufficient to converse in because they could not undertake the responsibility without the information. seems like a similar procedural and without a direct. too think there are issues work out. it would depend on whatever you call this was -- this position. all of the issues become much more joint. i think there would be no be able that they would to appeal, for example, denial by the fisa court, or if you

don't, they just have abstract proceedings. and then it would be the courts response ability and the courts ability to hold the government to account. to return toke former congresswoman harman and ms. pell. the challenge of the authorization that authorizes secret activity, it almost seems like a contradiction. how do you address laws that we don't want to talk about in public? democraticke a fully function and the government will fully comply, but how do you write about things that the government doesn't want to talk about? >> we can talk about the purpose of the program in the framework for the program.

certainly, i recall very specifically in the debate on the fisa amendments in 2008, that is what we did. maybe members of congress for not paying much attention, but it was out there on the airwaves what the issues were. certainly, the telephone metadata had been disclosed by the "new york times" and then partially declassified by president bush in late 2005. there was conversation out there. congress can do that and that should happen. there could be public hearings as there are now public hearings about competing versions of the lawstial fixes for the that we have. yes, a portion of this is classified. exactly how it works is classified. why do we want to tip our playbook to the bad guys? that can be explained to the public, too. want show that americans

conflicting things. one thomas they want there -- but they really are not conflicting things. one, they want their privacy protector. secured also want to be and they want laws to catch the bad guys that have plans to hurt us. the debate about purposes and framework is properly in the public domain. it should be made clear in the of how the watch works will be kept classified because we don't want to tip our hand. but again, if there is adequate safeguards and there is transparency in disclosing, as has been proposed, how many searches have been made, how many americans were involved, what were the outcomes in a bold way and not compromising privacy, then people should be comforted. and one last point. if we don't do this.

if we blow up the collection program totally and we say we are going back to the law enforcement model and only after something happens are we going to go after folks, as in a something really bad happens -- and oh by the way, it could happen even with this program. the pendulum will be going the other direction. we will start collecting all kinds of stuff, possibly without the safeguards that we have else in properly now. any additional thoughts? >> one additional thought, and i will borrow from criminal investigative authorities. timentext, it took a long to be able to have a good conversation about how to amend the statute to deal with location data. part of that challenge was there were not a lot of opinions by courts at various levels discussing how government thought under what authorities

its ability was to collect data. nevertheless, after many opinions, analysis came out. there are five the court opinions that are declassified or someone eyes -- summarized. we have conversation with fax and legal analysis to have a dialogue. members can talk without disclosing classified information. and stakeholders can bring concerns based on what they have seen. it will take a little while, but that is one way forward. >> earlier, you mentioned in 702 providers ability to challenge the program, but not the specific tasking orders. do you give that as a shortcoming of the statute?

>> to be frank, because it has never been limit -- litigated, it can be argued both ways. i would have hoped that a provider would try to mitigate it from either direction. i do think any opportunity for more presentation of adversary argument in the fisa court, at least after the government has been able to obtain the authority is worth pursuing. and we did not hear anything contrary from the government this morning. whether you would put that on top of a provision for some kind of special advocate is an interesting question. you could potentially have a redundancy problem. but in the absence, i think it would be a relatively easy sell to congress to do that. i think a harder sell is to get recipients to actually use it.

that is a question we are pursuing as well. >> we've got 8-10 more minutes. is, forrst question professor kerr, i wonder if you of 250he present status was originally not known to us as an operation for many years before it became publicized. now it is a deal. we know it is there. there are several proposed reforms on the hill. and the question is still there -- at least one of the bills says, stop the program, moved to delay the bill, move to a different way of doing it. -- if you're two presets that you named out earlier, namely sunset and the rule of lane in the -- and the -- rule ofity

lace there.any >> there is no now. >> but is there a principle there that could apply e -- that could apply? and my substitution for sunsetted in 2015, i think. that provision will have to lead to a debate at some point over the next two years over whether this program is desirable or not and the government will have to make its case. we could wish that it is something that will happen in the next few months rather than two years from now because the debate, of course, is current now, and who knows what the picture will be then. but the sunset provision does lay a very important role over the next two years in figuring -- ultimately, congress answering this question of

whether to approve the bulk collection program, and if not, then what are the alternatives? >> your original explanation for the rule was, if the court got something that appeared to be a novel interpretation, or appeared to be at the extreme edges from an interpretation, they should tell government to go to congress and get a application. does that have any application to the present situation? i would think that the answer would be that they would not it under section 215. ,ven without a rule of lenity just considering it a 50-50 question. already, we have been putting the difficult burden on those who are trying to amend in this for some kind of

in place.nity >> as it comes up, do you think that is a point at which the rule of lenity might fly echoplex just to be clear -- might fly? >> just to be clear, that by default adopt a narrow interpretation of the statute rather than a broad interpretation of the statute. >> i thought you had suggested that when he came to fisk in the beginning -- and i'm just saying, does that have any application for reauthorization? , go toy would say congress to get a specific authorization. >> it could certainly enable the fisk to back off of an earlier interpretation if that is in place.

quick question. a quick one to professor vladek. 702 is kind of a competent a program. if you can speak for yourself or any of the ngo's you have had how would you characterize the main concern of outside groups about the way 702 operate? i think we all agree that they had congressional authorization to begin with, so it is not a 215. >> i would not speak for anyone other than myself. >> that is good enough. >> my biggest concern about section 702 is the volume of communications of u.s. persons that are, at least ostensibly available to be picked up. contemplate, based on my understanding of our technological capacities, the

collection of data that on a scale that makes the incidental u.s. communications acquisition not just likely, but certain. theiggest concern is that unintentional environment is a bit this ingenuous. >> how would you correct that? >> there are a couple of possibilities. they all get to the same place. one is, not to allow the government to file for a directive if they have reason to believe that a certain percentage of the intercepted mutations will actually involve u.s. persons. one is to not just require those requirement, but what those requirements are. the threshold issue is that it is just too likely that communications are being accidentally picked up, or it incidentally picked up even when the government cannot go back -- go after them. they need to scale that back.

professor, did i hear you correctly to say that you do not think section 702 bears the weight that has been put upon it in terms of authorizing the bulk collection program? did i catch that? referring to section 215. >> yes, section 215. that is your view? on the understanding of the current statute, i can say that when the news was disclosed that the bulk collection program had been authorized under section 215, i scratched my head on how on earth they had gotten their based on the statute as it was written, which is an understanding of the grand jury's subpoena power. and the understanding was that it was only power for subpoena for the grand jury documents.

and i imagine a prosecutor trying to defend a grand jury subpoena for every piece of information in the united states and not getting very far, to put it gently, before a judge if there was a case of a motion to quash file. possiblehink it is based on the arguments put forward so far. >> you have written about issues of minimization in the context of government acquisition of in the tech context. about have thoughts contexttion in the fisa voting on content collection? particularly in the context of reports -- have been

we alluded to them this morning, that the government collects stored data in transit. because it is being moved from server to server. how do we -- what are your thoughts about building a minimization structure that would be constitutionally sound side addressing stored content, either effectively in storage or cap stored while it is in motion? >> that is a difficult question because the meaning of minimization in a national security context is different than in a criminal setting. in a criminal setting, you are just making sure that them -- the information is never discussed by the government, never disclosed. and in the other context, it is

just a matter of how long it will be in the database. we are more comfortable with the idea of being in a database somewhere, subject to when the database is going to be queried. it strikes me as such a different question that it is not clear to me that the same principles should apply. i would also point out that, for the opinion by the judge in some of these issues in section 702, his constitutional analysis struck me as one possible way to approach it, but there are many other ways to interpret the same issues. there are a lot of complicated issues raised by how broad the surveillance is, how broadly you take the foreign intelligence exception -- assuming that is an established exception