>> please except my apologies, >> i think that is always the kind of issue we wrestle with, try to balance the need to protect the secrecy of some of these programs so they will be effective with the need to be as transparent as we can about it because that is the kind of society we live in where people participate in the decisions of government. it's a difficult balance to find. that is the one we're trying to find right now. >> the chair recommend -- recognizes the gentleman from idaho. >> more important than balancing those needs is balancing our liberties with our security. that is what we are all secured concerned about. we are creating a system that allows the government to collect everybody's metadata.

i was in a country that was a police state. i had heard that term my entire life. i never understood what it meant. i heard about the ussr and other nations that were surveilling people who visited the country. i felt, literally, like i was being observed in every place that i went. the place was very secure and very safe. there is very few crimes. but, it was because people had given up their liberty in exchange for security. that is what people are concerned about. we're going to give up our liberty in the name security. you said that the fisa courts were not a rubber stamp.

i had a hard time following your argument. you said that the judges are reading the material and it is not a rubber stamp. that seems to be a nonsensical argument. it doesn't seem to be a determination of whether or not somebody is rubberstamping. i was a criminal defense attorney, never a judge. it seems to me, there is always a check and balance on the government. when you go and get warrants, you have an abba can contest in -- adversary who can contest it in court. that is not happening in the

fisa courts. how do we address that? >> i have a couple of things to say. on your first point, the idea of a rubber stamp is that the do not think about it. my point is, that is not what happens. they read it. they push back. they do careful studies and analysis. >> on your second point, if i can get philosophical, what we have here is the oversight of intelligence activity. is not a litigation -- it is not a litigation. it is not a trial. >> i'm not so worried about section 702.

you are gathering my information. my personal data is held by the united states. i'm concerned about that. i'm concerned about you having the data of every single american and i think there should be some mechanism for us to counter whatever -- i have all respect for judges, i served as a lawyer for 15 years, they were usually right and i was usually wrong, at least i would tell them that -- i have a great respect for the legal system. i have a concern when you do not have somebody on the other side advocating for the rights of other citizens. let's go to smith versus maryland. you mentioned smith versus maryland. this is not an analogous case to what we are talking about.

what, in the fisa statute or the patriot act, allows you to collect the data of every single american? you're talking about one individual who is suspected of committing a crime. you're telling me that we are collecting the metadata of every single american. that concerns me. >> there are two different issues. smith versus maryland goes to the issue of whether or not the fourth amendment applies to this kind of data. not whether or not the fourth amendment allows the collection done under 215. that is done under 215. it requires that the court approves the collection that is being done.

the court must demonstrate that that is relevant. the relevance is found in accommodation of the two orders. there are limitations. the court says you cannot go through this at anytime you want, for any purpose you want, and anytime you want. that cannot be done. you must find reasonable and articulable suspicion that the number that you want to query is related to one of of these terrorist groups. >> my time is expired. i think that determination has to occur before you collect the data, not after. that is what is wrong with what you guys are doing at this time. >> thank you. i was listening to the steps that you outlined.

you are a query for the metadata. you're describing it as a way of showing what kind of constraints that you use on this information. it sounds to me like you have determined that the phone numbers of all of the american people are relevant. in order to query the database, you had to establish and articulatable suspicion. why have 22 people that empowered? they are acting like court judges. why are they doing the jobs that the fisa court was set up to do?

why are they retrieving data from third-party databases? who are these 22 people? >> the court has described that particular procedure. there are a number of people with that authority. those people are following court having order procedure -- court ordered procedure. the only issue that i would take some issue with how you described is that you have to describe that all of these records are relevant. as the combination of two different court orders that have to be read together as you look at this. it is not just one or the other.

it is a whole program that is put together and presented to the with limitations and oversight and restrictions on how it can be accessed. only then does the court make a determination. >> the may continue with the description that you gave, with regards to how you proceed along these lines. after they approve it, it appears that they have in audits and you file papers with the court on this audits. then, the department of justice reviews it. >> it is not exactly in this order. there is a documented reasonable suspicion that takes place at a time. it is reviewed to make sure that it is done properly and the standards are being applied properly.

the query is made. to the department of justice and the office of national intelligence, the inspector general, they all look at these things to make sure that they are being applied properly and it is being done properly and there are not any missed applications of it. we have to talk about getting renewed authority every 90 days. any problems that are discovered, they are reported to the intelligence and judiciary committees. there are checks and balances in audits that go on both before the query is made, as well as, after. whatever is collected -- >> it is retroactive.

more of the emphasis should be on the first half of what you're talking about. aren't those documents, with regards to the doj reviews, available to the committee? >> i would imagine those would be classified. i would have to go back and check. we will look at the facts that we get. my guess is that those would be classified. >> i think that there are reports that are made. briefings, and classified settings, can be arranged, as well. >> let me ask, also, about the issue of court documents. i understand that secrecy is essential when conducting

intelligence investigations but, we had to make sure that the efforts are done within the legal frameworks of the constitution. we learned that advise the court -- fisa court declassified documents from a 2008 case with yahoo. other requests have been filed by companies in similar situations. what is the harm of releasing this information question mark shouldn't the american people be informed as to how this information is used? >> you may answer the question. >> we all agree, that is something that should be done. frequently, the classified information is fully intertwined with the legal analysis. it is our obligation to make as much of this available to the public as we can. >> we recognize the

gentleman from texas. >> i have so many questions. do you see any limitations under the fourth amendment on the government's power to gather information on people? >> yes, sir, i see many limitations in the fourth amendment, the patriot act, and the fisa act. there are many limitations and checks and balances. >> let's go over a couple of those. the fisa court is one of those. can you go and argue that you have the right to obtain an individual or every americans couldeform -- tax forms? you argue that with a straight

face? i have a long list, yes, or no? >> any individual's tax returns, there are separate laws. >> you get records from school? >> if it was relevant -- >> can to get hotel records. >> if you can demonstrate to the core that is relevant -- >> can you get my visa and mastercard records -- >> if you can demonstrate to the court that it is relevant -- >> did you create a database of every single -- can you create a database of every single credit card transaction? >> is -- it is dependent on the relevance. >> could you get google >> it is not a simple yes or no, black or white are

and.- like were white area again, it would depends, i had to make a showing to the courts that that kind of information was relevant -- >> could you get all google searches and then come back later? >> it would depend on the way i would be able to search them and, again, under 215, if i can show that it is related to specific terrorist organizations >> you get data from my phone -- you could make an argument of getting the gps data out of my phone. >> there are limitations. only if it is specific to a terrorist organization. >> how is having every phone call that i made to my wife and daughter relevant to any care investigation? >> i don't know --

>> but, you have them. >> we do not have the information that we need to make that query. >> but, mr. snowden could query them without your knowledge. >> we don't believe that he could query those without our knowledge. >> that is slightly reassuring. the fourth amendment was designed to prohibit general warrants. how could this be perceived is anything but a general warrants? >> because, according to the supreme court, this is not something where citizens have a reasonable expedition of >> to have a reasonable

expectation of privacy and anything but maybe a letter i hand-deliver to my wife? >> those are dependent on the facts and circumstances of the documents that we are talking about. in the case in front of the supreme court, there is no reasonable expectation of privacy. >> i want to point out how concerned i am about this data being so easily available with a stroke of a pen. the president and congress can change the search criteria and change the definition of a terrorist. the fact that this data exists we've seen with the iressa done with tax returns. -- what the irs has done with why doesn't this violate the first amendment? my right to freedom of

association and freedom of speech. >> these are issues that are looked at by the court. we do not know who it is who has the specific phone number that is being called. >> i yield back. >> we recognize the gentleman from florida, mr. deutsch. >> i was shocked by the revelations that the nsa has been collecting data on millions of americans. many members of congress, myself included, were left in dark about the data mining programs. we are worried about the balance between national security needs and constitutional rights of all americans. the government has stockpiled data on an unprecedented scale.

the fisa court to serve as a rubber stamp. they're learning everything there is to know about american the american people have a right to know about this program. at the very least, they need to know this program is operating within our system of checks and balances. we need to protect individual privacy rights. it is time to re-examine the patriot act. we need greater visibility on the fisa courts. we need to make sure that these laws are not interpreted on the backs of the american people. and ensure our laws cannot be interpreted high in the backs of the american public. with this hearing, the committee has begun this important work of oversight and repair. thanks to the chairman and raking member calling the hearing and thanks to the witnesses for participating. i want to ask you about the october 2011 letter sent by ron are -- ronald whyte regarding section 215. information was classified and even most members of congress.

mr. white seemed to reply in his response that because congress, or at least a number of members of congress, anyway, received intelligence readings in accordance with the patriot act, there is no cause for alarm that the government was using a secret law to expand surveillance activities. the patriot act was passed in response to 9/11, bolstering security by expanding techniques used by government law enforcement individuals to hunt down terrorist. section 215 had a standard of relevance. you had to be concrete information linking a person to a terrorist organization before their information can be taken. the fisa court has rewritten the section to say any and all persons records may be considered relevant, allowing

the nsa to collect data on all americans. madefact is, in 2012, the 1789 request in the court approved 1788 and withdrew the other. the member of congress not pretty to the death privies to those, i had to extend that there was no secret law. in the aft or math, it seems there may be secret laws, not passed by congress, not publicly interpreted by the supreme court, but secret laws foreign born out of a classified interpretation of the patriot act by the fisa court. it was reported the fisa court has become almost a parallel supreme court, serving as the ultimate arbiter of surveillance issues, with only the arguments of the federal government alone to be considered. even a former judge has come

forward with concerns that it has become a de facto administrative industry, which makes and approves rules for others to follow. it has become public fisa groups have done this, is it still part of this that the government does not operate with a secret label? >> there is, as we discussed in many instances, a tension that exists between maintaining the integrity and secrecy of -- making sure people know about it. we have, in the course of the reauthorization of the patriot act, on several occasions, and

unclassified rethinks.>> let me broaden the question. i am's eking about the decisions -- i am speaking about the court and these laws. stepping back, does the panel understand why the american people may find this revelations shocking that secret court rulings could expand the power of the federal government beyond what was originally authorized by the law and then an entire chapter in our laws are being written outside the three branches of government altogether?>> again, this is an area where we are looking to see what kinds of opinions we can make public and they are things we are trying to go through. all significant opinions and pleadings that have been filed by the court have been made available to the committee, so they can see them. we are not trying to keep them

secret, just maintain the classified nature of some of these. these are the issues we are trying to grapple with and determine what we can let out so we can have this broader discussion. >> the gentleman from florida. the chair would now recognize mr. holding. >> thank you. and a different part national-- professional iapacity, i sit that's lee used can attest not only are they effective, but they are very high burdens and hurdles to use pfizer warns -- fisa warrants and they are significant. but i want to step, for the few moments i have, outside the prosecution of terrorism and investigation of terrorism and just talk about the use of telephone records and everyday

garden-variety terminal cases, whether they're public corruption cases, fraud cases, myg cases, and i will direct questions to you, if you could step through for us how the department of justice, prosecutors, and investigative agencies obtain telephone records just in garden-variety cases and how they are ultimately used. >> there are two different ways we do it. historical telephone records exist for prior calls. -- by can be issued i a aprosecutor, delivered to the telephone provider, and asked --r a range of data rate lacks >> so new judicial involvement? >> and the prosecutor defines

the scope, nature, and numbers >> so the prosecutor could request telephone records going back as long as i want to, the only limitation being, does the telephone company still have those records? >> one additional, the telephone company could challenge the subpoena as being overly burdensome and irrelevant in the court could take that up, which would be in a sealed proceeding because it is a grand jury proceeding, so it would not be public area of >> what with the standard of the judge be using to evaluate the motion to quash? >> generally what relevance to the investigation. >> the fourth amendment doesn't come into play. >> not for telephone records, it does not hurry at -- does not. this is available to federal prosecutors across the country. >> yes, it is. >> the only showing the have to make to the grand jury that it

is relevant is what? >> that it is relevant. >> once you have gotten the telephone records and it shows them and let say hits between the person, the subject you are and irrelevant other person in the investigation, then what you do to start listening to those telephone calls? >> if we wanted to listen did he telephone calls, and that would be telephone calls that would start happening into the future, we would have to go to the court and seek authorization under title three at of u.s. code to get him wiretap and show probable cause to believe that in fact the person talking on the phone was involved in criminal activity and that through that phone, they were discussing criminal activity and we would obtain evidence of that criminal activity by listing to the calls. >> would you hazard a guess as to how many wiretaps are in use on a daily basis? >> i could not

hazard a guess, but there are a fair number. >> hundreds? >> probably. as far as my friend mr. scott was talking about, if you find evidence of some other criminal conduct during an investigation, let's say during a title iii wiretap, your investigating one crime and you hear conversation that suggests another crime is being committed, are there any limitations on use? >> generally not other than the restrictions on how you can use wiretap information. there is the protection of innocent calls. but generally, you can use that information if it relates to other criminal conduct according to the rules of procedure in the law. >> so it might take away, having heard you describe in detail how the 215 program works and the 702 program works, the

restrictions and limitations on use from those two programs is much more restrictive and limited than what prosecutors and law-enforcement are using on a daily basis throughout the united states investigating argenbright he crimes being committed by u.s. citizens. >> there are some differences here and there, for example, the burden to get a wiretap may be a four -- 470n than two, but it would be different if we wanted to do pfizer for someone in the united states. that would be probable cause standard, but in for intelligence. >> thank you. >> thank you, the chair recognizes the gentlewoman from washington. >> thank you for being here today. last month when director mueller appeared before this committee, i stated that i agreed with those who believe that greater

transparency about the request of the government duties are making to internet companies and providers will help inform the discussion that we are having unbalancing national security with privacy rights and civil liberties. i'm one of the questions asked the director was how the fbi and the department of justice will respond to the request by google, that it be permitted to provide reports of the number of fisa national security requests it receives as well as their scope and at the time the director noted that this was being looked at and so i was wondering if you're able to share with us what the response is to this request? >> unfortunately, this is a matter curly before the courts in medication so i can't say too much about it other than to reiterate what director mueller said which is this is a matter that we are in fact looking at and take seriously we do have some data out there already because of march of this year, google worked with i believe

google worked with the doj and right strokes the letters that google received, correct? >> correct. >> do we know whether that information that was released has had any impact on national security? >> generally, it is hard to tell them that you have a substantial time afterwards as to whether or not it has an impact. we have not had enough time yet. >> thank you. the public now knows the telephone metadata collection is under section 215. the business records section of fisa that allows for the collection of digital things. we have also seen reports of a defunct program electing e-mail metadata. that program that is no longer being operated, can you confirm the authority used to collect that data was also section 215? >> it was not.

it was slightly different, but it amounts to the same kind of thing. it does not amount to can't -- it does not involve content. it is only the to and from, not information about identity. it is just e-mail addresses. it is similar, but not under the same provision. >> could you have used section 215 to collect that information? >> hard to tell, i would have to take a look at that. >> i think it is important for us to know whether or not there's any limitations on the types types of information within section 215 that prevent you from collecting whether it is e-mail metadata or gps information, etc., how broad is that authority? >> it is only as broad as what the courts can find under 215 that is relevant, but there are is different authorities so we would have to look to see how those all work together. say, it just going to is important remember to 15

authority allows you to acquire existing records and documents and it is limited to that. >> but you could argue geolocation information may also be existing and would you consider that to be metadata as well? >> i think the director of the national security agency has stated that we are not collecting that under section 215 and we have come to congress and consult with congress before any decision was made to do so. >> but you understand it is important for us to know the limitations as we look at policy and clearly, there is some confusion here right now, so we need to understand how it is being used and what information might be collected so we can make sure intent is delivered appropriately. agree with the president's view we need to set up a national conversation on balancing privacy and security, have thater to

conversation productively, we need information that will help feel that information like the breath of section 215, etc., so hope we can continue that and get access to more information so we can have a productive discussion going forward. thank you for your time. i yield back. >> the chair recognizes the gentleman from texas. >> thank you, mr. chairman. in answer to some of the , you have provided an adequate defense. the trouble is, we have seen the abuses of government, we have seen the gathering of data, and i can tell you from having been here not when the patriot act was passed originally, but when it was extended back in my first term in congress, it got down to where there were only two republicans demanding any type

of safeguards, i thought, and there were two of us that wanted sunsets. in ourd for 25 minutes 30 minute prehearing meeting, demanding sunsets. then my friend had the amendments. we got at least two sunsets on 206 and 215. the argument i made for 25 minutes that turned my colleagues, republicans, around in our meeting was, i have seen how there can be violations of due process if everyone is not very diligent. we need the safeguards in order to have proper oversight. what we have seen and what has been disclosed of the monitoring scares me. we have had hearings in this room, where people have argued governmentsof having too much information.

from my express as a judge and chief justice with state judges and federal judges and having practiced before a very conservative federal judge and a very liberal judge, i could not imagine anybody granting the kind of orders we have seen granted. just a blanket summary. i mean, go get all of these phone records. i understand the assurance is, no, we don't have names with them, but isn't it true that you can go on public or private data any individual and secure the names for different numbers? isn't that true? secure aims ways to for numbers, but maybe not ever single one. >> i recall back in 2002 as a chief justice of the conference getting into a debate with the cia lawyer who was arguing, look, banks have all of your financial records, why should the government? as a pointing out

conservative, it is because banks can't show up at your house, put you in handcuffs, throw you to the ground, and drag you off to jail which has been done by the government. so there is an important distinction and then we find out , though many of us posted, the consumer financial protection bureau has been gathering information on everybody's financial records, but they said the same thing that most of you are saying -- look, we are not putting the names with it. but isn't it true the federal -- that even the nsa can get access the information gathered by the consumer financial protection bureau? >> i imagine i can be true, but i would say we can't pull the telephone numbers from this database under any circumstances other than that prescribed by the courts. >> but you are entitled -- we have had this debate. you are

entitled to go on the internet or go to private sources that any private citizen could and gather that information without violating any constitutional rights. isn't that correct? >> certainly. match that would information, we don't have access to the telephone numbers and a sweep follow the prescribed rules of the court -- telephone numbers and as we go through the prescribed rules of the court. >> but you could couple that with information only the federal government we are now learning is gathering, it really constitutes a grave threat to privacy. by the way, the consumer financial protection bureau said this in testimony before congress amid the bureau has also issued regulations that limit the circumstance in which it may disseminate internally share with other agencies or disclose public confidential information, share with other agents.

so they know they can share with other agencies of another agency or they feel it is helpful. this begins to be a little scary. the justification we get seems to be, well, but look, there are a handful of cases where we have avoided terrorism by really gathering all of this private information and it makes me think, how many times could king george the third argue that? everyoneg officers and of of your homes that we were uncomfortable with, we ended up being able to avoid a couple of problems of violence. we don't want people in our homes, and that includes the federal government watching through a big eye through our computers. i appreciate you being here today. >> the chair will recognize the gentleman from new york. >> thank you. that it is your position in the position of everyone on the panel that the

a potentiallyrds hundreds of millions of americans in the form of metadata has been discussed nationalrelevant to a security investigation? >> they are relevant when they are only queried under the limitations that are described by the court, where you had to have reasonable, articulable suspicion that it is connected to some tourist matter. >> fundamentally, it is relevant and because the court, the fisa court, has articulated a set of criteria by which further inquiry can be undertaken, correct? >> they are. they are relevant because it is the old adage if you're looking for the needle in haystack, you have to have to have the entire haystack to look through. we're not allowed to look at haystack willy-nilly. >> in terms of looking through that haystack of these phone records that are acquired, based

on reasonable suspicion, and my correct it is 22 nsa individuals who are authorized to make the determination of reasonable, articulable suspicion? >> that is correct, sir. >> these individuals don't have to go back to the court in order to determine whether they can move forward a more invasive inspection of the phone records of the americans contained in the database you have acquired, correct? >> they use the court -- >> but they're making the determination, not the court, as to the invasiveness of the further inspection, correct? >> on a case-by-case basis. >> you have indicated in your fisa court is not a rubber stamp, correct? >> correct.

>> i think in response to this ding wished german from idaho, it is not a rubber stamp because a read, as questions, -- gentleman from idaho, it is not a rubber stamp because they read, ask questions. we just had the baseball all- nothing says american as baseball and apple pie. if you think back on the history of baseball, i just took a quick look and i'm a baseball fan myself, a great hitter from st. louis, his batting average lifetime was close to being in the top 25. .331. time, his 10th all lifetime batting average was .342. great lefty, the from the boston red sox, his lifetime batting average was.344 . ty cobb, the georgia peach -- i may agree with him on social justice issues but he was a great hitter -- the number one

hitter of all-time .366. pretty impressive. i'm still going to ask you questions. .ow, i took a look these are the greatest hitters of all times. what yourook at batting average is as it relates to the fisa court. i'm a little troubled by what we were able to determine. am i correct in terms of the total applications submitted 33,0009 79, there were 949 applications submitted -- 33,009 hundred 49 application submitted. >> i would not disagree with your number, but i just don't know it. of that total number of applications. 490 it appears were modified. as i correct? yet no reason to disagree.

>> i don't know. if i could just add -- >> let me make an observation. 1.4% of the total number of applications made were modified read what is even more troubling, since 1979, 11 applications were denied. is that correct? it. will take your word for >> your batting average was 99% of the time you have applied to acquire information that could possibly include communication from one american to another american. you're taking the position the fisa court is an independent check to protect the constitutional rights of americans. is that correct question mark -- ? >> we're not talking about about

baseball. imagine a situation where the kind of interaction we have with the fisa court is the fisa court throws a pitch and we don't hit it in the court says we want to pitch a little bit higher. they come back to tell us what we need to do. >> those modifications only took .lace 1.4% of the time thank you for your service and i yield back the balance of my time. >> if i could say one thing briefly, the number for modification i think does not reflect the full number of times in which the court asks russians and comes back -- asks questions and comes back to us.

that comes at the very end of the process. there's a substantial give-and- take before we get to that. it is not a full reflection. >> we recognize the gentleman from utah. >> i thank you for your service. i know how much you care for your country and we do as well and i appreciate the dialogue. is geolocation location information metadata or content? >> that is an area of the law i with the jones case and i think the courts are grappling with it. >> the courts did rule and the jones case nine to nothing. they were pretty clear. justice alito was clear that congress tended to grapple with this as well. has the department of justice issued any guidance of jones? >> jones was based mostly on a

trespass. >> have you issued any guidance on jones? >> we are in the process of looking through that. >> that is not an accurate answer. >> my understanding is there are at least two documents the department of justice has issued to the federal bureau of investigations, for instance. it was uncovered through a foia request. you have indeed issued guidance on jones, correct? >> i will stand to be corrected if you have those, yes. >> will the department of justice provide to this body, to this committee, the guidance on jones? >> that is something we will have to look into. >> i know there are law- enforcement issues. why would you not provide to the united states congress the committee on the judiciary? why would you not provide a copy of that guidance for this committee? >> if it discloses law-

enforcement sensitive information into banks on how we ond criminals -- techniques how we find criminals they would not disclose it. >> this is of one of the great concerns. is geolocation metadata or content? it is not content. it does not give you the content of calls just information about where they are. then you would classify geolocation is metadata? >> i'm not sure it is one or the other. there are times when things are in between. it is certainly not content. it probably tends more toward metadata, but this is an evolving area. how is it you evolving? this is what scares me about

what you're doing and how you're doing it. are you telling me that is not content? so the -- >> many other people may see you. >> but if i was standing on private property -- >> this is part of what jones talks about, the trespass. >> and they ruled it was an overstep, and overreach. are you collecting that data? rocks were not collecting that data. -- >> we are not collecting that data. >> is the nsa? rocks we are not collecting that data. we inc. it could be -- we think it could be. as indicated earlier, the director of nsa has given that information to the congress that before such time as we would

reconsider that information we would come back. you, what isk to this third category you're talking about? what is the right word for it? >> i'm not sure, it is just a third category. there is content, which is the actual conversations themselves that people have. there are any number of things that may follow between those. it is not just a third category, it is probably a continuum. >> what else would be in a continuum? i'm sorry? >> what else would be in a continuum? >> it is hard for me to

hypothesize. >> there is a report out today about license plates and that information that is being collected i thousands of camera readers and stored about specific locations. does that fall within this category? >> in which category? >> license plate readers. >> the whole issue comes down to the reasonable expectation of privacy. believe i have a reasonable expectation of privacy about my specific whereabouts? >> it depends on where you are and how many people see you. >> do i have a reasonable expectation of privacy on private property? >> in general, i think the courts are saying there is a trespass theory that gives you a reasonable expectation of privacy depending on whose property it is, whether it is your own or somebody else's, how many other people are there.

these are the types of issues that would go into that area and >> my time has expired, but this is something we have to much ,ore thoroughly understand chairman. i think this committee should be able to see the guidance. i yield back. >> there will be another hearing and you will be able to ask even more questions. we thank the gentleman and the chair recognizes the gentleman from south carolina and thanks them for presiding for a period of time as well. >> i was listening to my colleagues and our witnesses discussed these issues of what -- mr. chairman, my mind went to a guy by the name of joseph parks. prosecutor at a case called united states versus timothy mcveigh. i thought your presentation given years ago the role it

deserves -- business records played in his ability to prin prosecutor act of terrorism. we ask you to prosecute the crime after it took place. what if we challenged you with responsibility to prevent the next act of terrorism? what tools would you need to be able to prevent crime as opposed to prosecute it and its aftermath? and at some level this is a debate between privacy and public safety, to me, it is also a debate the between prosecuting something after it happens and then preventing it from happening in the first place. he used hotel records, business records where timothy mcveigh went and purchased certain materials.

it was a very tedious, difficult case to prosecute. and the role the business records played in it. this is what i would like to ask. i don't want to ask specific questions about the sections, i want to go to where the people of my district are you're not trained attorneys, for the most most part, train law-enforcement , you would agree the constitution kind of sets the minimum standard by which government must conduct itself. >> yes, sir. >> the minimum standard. >> and commerce has the power to set higher standards. >> the supreme court says you cannot put someone to death was under the age of 18 at the time they committed the offense that does not keep congress from saying, we're going to raise it to 21. >> correct. >> so who gets to decide whether or not our fellow citizens have a reasonable expectation of privacy? >> it depends upon the purpose

for which you are deciding it. on a forse of deciding the moment, the supreme court is the ultimate arbiter. for determining what is the appropriate behavior, how do you want to regulate the actions of government, that is congress. >> you say the supreme court is the ultimate arbiter. are they the exclusive arbiter? can the people weigh in on what they think that a reasonable expectation of privacy in? >> absolutely. >> the supreme court doesn't have the benefit of public input. >> generally speaking, the public manages to get its voice heard. weigh andob is not to balance, to jason's point, but there is a helicopter above.

of any expectation of privacy in your face, but that doesn't mean that people wanting to collect imagery data. >> that is the right way to frame it. the fourth amendment as interpreted by the courts sets the minimum constitutional standards, but the congress based on input from the people and whatever sources can determine, no, this is how we want to regulate the behavior of our government. >> and technology can impact that? >> i'm sorry? >> technology can impact some is reasonable -- >> absolutely. >> culture? >> yes, all of those factors come into play. unless you can get medical records for the subpoena. >> there are statutory restrictions on what you can get. >> that's right.

you have to go through an elaborate process. >> those are business records. so the notion that miller stands for the proposition that all visitors records you have no expectation of privacy because there was a third party involved in a we just came up with two examples where that is not the case. >> that was the case interpreting what the fourth amendment meant. >> there was a statue to play in miller. there was a banking statue. my point is this, all of us are asked back home, by people who are not as well trained in the and there is a growing skepticism about the conduct of government. and to the extent that people can weigh in on what they have an expectation of privacy in, you can accept -- you can expect to see that scale balanced back

toward privacy and a way for public safety -- unless we do a better job of regaining their trust in explaining why these programs are necessary. you could not agree with more. i think that is absolutely right. i think as the deputy director said earlier, we try very hard to keep in mind but the protection and the national security and a privacy and constitutional rights of americans. we think we struck that balance in the right place. if the people in congress determine we strike that balance in the wrong place, that is his discussion we need to have. >> the chair thanks the gentleman and on that note, we .hank this panel i think we got some answers. there are some that were not answered today, therefore, you might anticipate we would have subsequent hearing in a classified setting and ask additional questions. so whether it is you four were

others, i don't know, but i want to thank each one of you for helping us to engage in a very thorough examination of the issues related to these two sections of law and excuse you now. thank you again. >> next, "washington journal." then, newsmakers. it iris officials about the targeting of groups seeking tax- exempt status -- than irs officials about the targeting of groups seeking tax-exempt status. we will be joined by democratic strategist robert raben and

brian walsh. then a discussion about race in america with the institutes michael denzil smith and radio tv talkshow host and columnist armstrong williams. "washington journal" is next. ♪ host: morning. congress returns this week, the house is scheduled to take up a spending bill for the defense department, the senate is back on tuesday. a vote on the last week agreement over student loan rates. the president travels to missouri to talk about the economy. on thursday he makes -- we will put the weeks events into perspective on to sunday roundtables. we want to begin by looking at