. .

say there is an attack or a bombing in a major american city, during a marathon. so, the boston bombing.

within a few days of that you have a suspect or two suspects identified. you have a cell phone that relates to one of those suspects. the question is -- can the government take the cell phone number and query the metadata to see the phone calls that number has made and the calls made to it? you could go to each of the providers and ask them individually for that information and hope that they kept that information for long enough to be relevant to provide the information you need,whether that is three months, six months, one year. we have tried to do this using the 215 program, which is to collect that data, limit the circumstances that one can use it and have a database that can be searched under strict control, to see what number that number has had called or has been called from when time is of

the essence -- are there other bombs, perpetrators, associates as part of a broader investigation. the 215 program can be useful to achieve the speed and agility from a counterterrorism perspective. >> a quick question on 402. why was this ended if this is helpful? what would you like to see with regard to that? >> i would have to look and see with the document said. i haven't had a chance to see the documents that have been released. >> the metadata program, the internet metadata program has been ended because nsa determined the benefits of it were not sufficient to justify the continuation of the program. >> does that include the e-mail? >> yes. >> it is all internet and e- mail.

>> internet metadata is how we characterize it. i want to pick up on mark's marc's thoughtful analysis. i think it is the right way to frame the question which is -- how do we accommodate oversight, number one, with the need for secrecy? american people have the right to know what is being done in their name. if you take that literally, it would shut down the intelligence community. we cannot conduct activities to protect the nation if it is done in public. no other nation has the degree of transparency or judicial oversight that we do. you also need to take into account the different nature of foreign intelligence collection and criminal wiretaps in the title iii context.

you are investigating a known suspect's activity. foreign intelligence, by its nature, consists of gathering a lot of data and trying to analyze it and trying to find the things that you do not know yet. marc is right. we need to think about what is the right degree of oversight, but you have to take into account that what you do in criminal context is not going to translate directly into what you do in foreign intelligence context. >> i will take issue with something that matt said just a moment ago. i do not think there is a real dispute about the need to have a separate procedure for foreign intelligence collection as opposed to routine criminal investigation. i guess i agree with what bob just said. as much as i hate the phrase, "strike the balance," i think

congress struck the appropriate balance in 1978 with the passage of the national foreign intelligence surveillance act. they constructed a framework with some judicial oversight, some public reporting. very minimal as a special circumstance. i think the reality, in post- 9/11 america, is a special case has swallowed the rule. if you track the number of title iii warrants that are issued each year, as well as the number of fisa orders, you will see that there is a crossover point in 2003. that was the year in which there were more fisa orders issued than title iii warrants. the comparison is imperfect, but

respects, is, in some accurate. we understood the use of surveillance authority in the u.s. moved from the much higher standards established in the 1968 act to the lower standards that congress created in 1978 for the special circumstance of fisa. if we need further evidence of how far we have come from 1978 -- i hope we will have time to talk about it -- you look at the order signed by judge vincent, issued under the foreign intelligence surveillance act for the collection of foreign intelligence, it is directed at a u.s. telephone company for telephone records on u.s. customers concerning solely domestic communication. you cannot imagine a greater

distance between the intents of the framers of the 1978 act and the current use of that authority. >> marc said a lot of what i was going to say. to take it one more step -- there was this deal struck in 1978 which, perhaps made sense , given what types of surveillance before -- people were contemplating at that time and what kinds of questions people were contemplating the fisa courts would address. the idea at that time was that the fisa court, when evaluating individualized applications for surveillance, the government would identify suspected foreign agent within the united states and the court would evaluate whether the government had shown probable cause with respect to the prospective person.

-- that particular person. that kind of analysis, that kind of task, is very different from what the court is doing now. if you look at the opinions that have been released over the last few months, the court is not saying this person is a foreign agent and you can wiretap his phone. they are issuing broad interpretations of federal statutes of the constitution and authorizing these dragnet programs that implicate the privacy of foreign agents and of everybody. it is a jarring and sobering fact that, over the last decade, some of the most significant judicial opinions have been issued by a court that meets in secret and allows only the government to appear before it and does not publish decisions. that is a world apart from what anybody had in mind in 1978. if you accept the 1978 deal was the right one, we are in a different world.

it is time to ask whether we need to -- if this is the right metaphor -- strike a different balance. >> are the current structures sufficient or not? what are your thoughts on this, in light of the opinions that have come out? you're looking at the makeup of the court. what is your position on how the court is constructed and changes that could be put into place to ensure this oversight that you emphasize? >> i think it is odd that people can say the foreign intelligence court meets in secret and only hears from the government and then can point to the opinions of the foreign intelligent court and how they wire brushed nsa for its compliance activities. i am not going to ask matt to comment on what it is like to appear before the judges of the

court, but the way the court is structured now, they have their own legal advisory staff. there is back-and-forth between the government and the court. athink judge walton wrote letter to either chairman leahy or someone else in which he said approximately 25% of the applications that the government submits gets returned by the court for supplementation or modification. that includes the bulk of the workload of the court which is still the original title i individual target fisas. i think they do provide effective oversight in an area that is -- we're talking about the collection of foreign intelligence that is

historically, prior to 1978 was not subject to oversight at all. having said that, there is a sense that the public would be more comforted there was an opportunity for another voice to be heard before the court. we can support a proposal to to go outside, get a cleared lawyer, and argue the other side or support it as the case may be. >> this is the position of the obama administration. the president has said that he would support a special advocate, although he has not endorsed one bill over another in terms of the various ways this is presented.

perhaps you can comment on what it is like to practice before the court so we can move forward on discussing how that may be addressed. >> i was a prosecutor for 12 years in d.c. and handled a lot of cases before the district court here. i did, particularly, title iii wiretap and search warrant applications. there are a lot of similarities. there are a lot of similarities, and in fact a lot of the procedures and standards are similar between article three criminal courts and the fisa court. there are some differences. all of the fisa courts are -- fisa court proceedings are

classified. there is a sense of a heightened responsibility and duty of candor to the court beyond which a government prosecutor might feel. this is an ongoing relationship that exists over time. the lawyers in the division always present both sides of an issue. one check on that -- one aspect of the fisa court practice that makes it a little more like an adversarial proceeding is that the court has advisers to our professional staff members who are well steeped in fisa and they serve as a check on the government perspective. it is a very vigorous practice.

the judges are very demanding. this is now being revealed in opinions that have been released at this point. >> i wanted to make a couple of points -- bob mentioned the letter from judge reggie walton, which was to senator leahy about the pushback which the fisa court does give to the authorities. he also noted there had been no opposition from any party among who an order had been served in the history of the fisa court. we think that is significant. there's the one opportunity provided by the statute by an adversary to raise a question as to whether or not the government is seeking exceeds the statutory authority.

that provision has never been in exercise. when a criminal prosecutor goes ex parte to discuss title iii or a warrant, there are obvious reasons why you do not want to tip off a target. the key to that structure is that there is a particular target. you have someone in mind. you have met some probable cause standard and you're trying to gather evidence against the person. what is so problematic about analogizing that strategy to the fisa court is that you have programmatic authorities. there is not a particular person you have in mind, you are simply saying to the court -- i believe we have met the legal standard to gather these telephone records from verizon and we cannot let people know we are doing that. my question is, why? who are you investigating that you are afraid you're going to tip off?

the analogy collapses with respect to programmatic collection. >> you don't have to believe that government lawyers are intentionally misleading the court to come to the conclusion that an ex parte process is inadequate. if you look at the rulings that have been released by the administration over the last few months, the rulings are riddled with claims by the government, accepted by the court, that would not have been accepted had there been an adversarial process or the very least would have been tested more vigorously had there been an adversarial process. the government told the court in 2006 and in 2008, and in the time between 2008 and 2013, that metadata was not sensitive. there is a debate to be had about how sensitive metadata is. the idea that metadata is

categorically not sensitive is not true. if there had been a party on the other side to say to the court, it is not that simple, you would have had an analysis of that issue in the court's decisions. the government told the court that the call records issue was governed by smith versus maryland, this 40-year-old case in which the supreme court upheld the installation of a pen register on a criminal suspect over a two day period. at the very least, if someone had been on the other side, the court would have to grapple with the chasm between individualized, short-term metadata surveillance and the kind of dragnet, seven year program that the government is engaged in right now. finally, if you look at this decision that judge walton issued in 2008, the program had

been in place for three years. a government attorney figured out there was a statute that, on its face, prohibited the government from using section 215 to get call records. the government went back to the court and said we have just identified the statute that presents a hurdle on what we asked you to authorize three years ago and what we have been doing for the last three years. they said to the court, there is a way to read the statute to allow us to keep doing what we are doing. by the time they went to the courts, it had been in place for three years. to ask judge walton to find that statute -- was asking judge walton to say that he was wrong three years ago. the court was invested in the program by the time the government raised that argument. maybe those issues would have come out the other way, maybe they wouldn't. the point is they would have been tested more vigorously had there been an adversary.

>> do you see any changes that could or should be made to the court in order to account for this? >> we could support the idea of a proposal for someone to come in in individual cases. i am not sure what idea you have -- i am not sure what more you have in mind. when you're talking about programmatic activities, there is no reason to keep it secret because you're not tipping anybody off. that is not correct. we are able to conduct programmatic surveillance because of the fact that people use communication facilities that they do not -- that they are not focusing on the fact that we can intercept those communication facilities. they are focusing on it now because of what has been leaked. we see that in the communications we intercept.

there is a story where someone was asked what they thought of the french revolution and he said, it is too soon to tell. are people going to change communication patterns? we don't know. they are thinking about it. the fisa court is going to have to operate in secrecy. there's no way we can disclose what we are collecting, where we are collecting, how we are collecting, and whom we are collecting against and maintain an effective intelligence agency. >> there is always a bit of a risk when what becomes an unbounded rationale if we accept bob's argument. i don't see why they can't make the same claims with the regards to financial records or travel records.

we need to be able to draw some lines. it was a line that was crossed in the fisa amendments act to authorize programmatic surveillance. it was contested. it went forward, not over the -- it went forward, not only over the objection of civil liberties group, but members of congress as to its application. to the extent that the government is engaged in those types of surveillance activities, the secrecy claim has to be diminished. the alternative is that the secrecy claim can go as far as the government chooses to press it. >> the fisa amendment act was

something -- when you talked about challenges to what is being done before the fisa court, that does not include the amendment act. it has been disclosed that there was a provider that challenged the protect america act which is a predecessor to the fisa amendment act. it includes the same types of provisions to allow the government to target non-us persons overseas. a challenge was taken before the and then it was challenged at the fisa court of and it was declassified back in 2009, i believe. amendmentt the fourth and statutory basis for the collection. the government went before congress and said we want to

restore fisa to its original intent. that is essentially what the 1978 law allowed. they went to the court, in the law was passed. it was challenged and it was upheld by a district court within the fisa court structure. here's a case where there was transparency. congress and the courts will was revealed,nd that was that prism, there was nothing new as to what the government was doing. there was transparency there. i would take issue with the notion that was done secretly or

without the understanding of congress or the courts. marc, a response? no? >> can i have one thing? marc has gotten to the point. matt noted that in the late 1970's there was a sense that there needed to be greater oversight. that was set up through the intelligence committees. under fisa, we are required to report decisions to the intelligence committee and judiciary committees. i am sorry if members of the judiciary committees feel they cannot attend classified meetings. that is the structure through which we determined is most effective to conduct oversight activities that must necessarily

be secret. that is through the intelligence and judiciary committee. placenot that they take out of view, it is that we have determined the best way to enable necessary classified activities to take place while ensuring their watch over is through the intelligence and judiciary committees. determined way we this ought to be done. that has been followed. >> i think bob and matt have to get on the same page. i hear matt saying there is transparency -- >> i agree with everything that says. matt says.ng >> bob says we cannot tell you how these things are going to be used. if we tell you, they cannot be effective. 702 question, it is not

was that the government above board with how the statute was going to be used. there was a lot of smoke and mirrors in 2008 when the statue was passed. only challenged the constitutionality of the law and said this was a statue that can be used for dragnet surveillance of international communication, -- government's response was you guys are paranoid. you have no proof we're going to use it this way. you cannot even show it to be used this way because you do not know the technology. that was their position up to the supreme court. forou read the decision five members of the court who ,oined the majority opinion they accept a statement that the aclu's contention that the law could be used for dragnet surveillance was too speculative

to justify standing. they kicked the case out. a few weeks after that, edward snowden released this information to "the guardian." engaged inent was this all along, but the government denied the aclu -- >> how do you define dragnet surveillance? it is not what we do under 702. fishing net that sweeps everything up in it. you pick out the fish that you want and you throw everything else back. that is not what we do under 702. i am not sure what you are talking about. >> maybe you can explain what you do under 702. i think the story out there is that the government engages in precisely that under 702.

if it is not true, you should correct the record. allows us to target non- us persons outside the u.s. for foreign intelligence. that is what we do. the distinction is non-us persons versus u.s. persons. >> it is not dragnet surveillance. we did a brief in support of jameel's case. brief.an imperial court it was not a legal argument. in theexperts capabilities of the national security agency. we outlined in support of the aclu's contention that people had reason to believe their communications were subject to intersection.

we provided what we could detail about the nsa's capabilities. took notice of our brief. we do not have access to the documents that mr. snowden made available. end toheading to the talk about the significance of the order that established how that authority was being used. bob'sed to come back to use of the term dragnet. -- it strikes me correct in the application to do whenause what you you go to the telephone companies is you collect all of the data that you are able to gather. you go to the data that you have acquired under stringent procedures, but nonetheless,

post-collection, and determine what is of interest to you. ifguess my question on 215 -- that is not dragnet surveillance, what is? jameel'sresponding to comment on 702. 215 is a different program. we do collect in bulk under 215. it was accepted by the fisa court that that is the only way we can get the information that is relevant. it is not an approach that we use in exercising authority under fisa. it is based on a particular showing and particular set of restrictions approved by fisa court. the notion that they do not

grapple with these issues -- i can attest to the grappling that goes on by the court. have takenent -- we the position that we would be open to looking at ways to increase public confidence. is, judges, an extraordinarily good faith, grapple with these issues. since this debate has come to light, another judge of the fisa , reaffirmed the collection as constitutional and consistent with the statute. >> of the bills before congress, we have not addressed the nomination of judges to the court.

would you like to comment on some of these proposals, whether it should be done by the chief justice, the president, whether it should be nominated from the circuits, should it be 11 or 13 judges? >> i will make a brief comment. this thesis that was published by princeton senior back in 1971 on the right to privacy in america. this was seven years before the enactment ofhe fisa. he talked about the need for national security warrants. he talked about the legal standard in the necessary showing and about the composition of the court and he suggested it would be appropriate for the president nominations to make to the court of national security warrants. i think it is a good proposal from a college student.

that was samuel alito. >> other comments on it? >> i don't have a perspective on this question. all of these judges have been nominated and confirmed by the senate. adon't have a perspective on different way to select the judges. >> 10 of the 11 kirsten's are republican appointees. 10 of the 11 persons are republican appointees. there has been attention to the low rate of denials of the applications in the last 10 years of 18,000 some odd applications. these have given some momentum

considering reform of the court how it is appointed. i am not sure the current selection process makes a lot of sense. i think it would serve the government's interest to have a process that was seen as a more fair one and that resulted in more representative court. i would not put this problem at the top of the list. i do not think the fundamental problem is that we have the wrong judges on the fisa court. i think the problem is structural. it is the way the fisa court operates. questionskinds of that the fisa court is now addressing which are not the questions that the fisa question -- the fisa courts were supposed to address when it was set up in 1978. all the secrecy has allowed of

this entire body of law to build up without the kind of rigorous oversight that usually happens with ordinary judicial opinions of ordinary courts. if a court in the southern district of new york issues a ndaag that construes the to allow the government to detain people that are suspected terrorists, that opinion is splashed over the pages of the national newspapers. people can debate it. congress can debate it. and the fisaring court's decisions are like these mushrooms that grow up in these dark forests. no one sees them until eight years later when they are -- irown and they have have probably taken that too far already. fisa court opinions do not get that kind of oversight.

get opinions like last night. there was genuine surprise across the political spectrum among the legal theorists and academics about the courts fourth amendment analysis. spectrumom across the thought this was not an analysis that makes sense. even people that support what the government is doing. that is the result of secrecy. that secrecy is unnecessary. i think everybody agrees that some degree of secrecy is necessary if you're going to have foreign intelligence surveillance at all. not -- i think jameel's respective -- perspective is a fair one. the question is -- how much can we afford to provide?

how much transparency can we afford and still maintain operational effectiveness of the programs? i agree that it was not contemplated that courts would be looking at programs like 215. the record that has been revealed as convincing that the court approaches these questions with a degree of seriousness and anl familiarity and does impressive job of dealing with these issues. >> the statute is set up for them to serve for staggered seven-year terms. you cannot serve again. there are other protections built into the statute. anything else on this? >> no. >> litigation. uitsave a number of s

that are working their way through the courts. denied it --.urt if you would like to comment about the suit? >> i wanted to thank the justices for their timing. they turned down a petition the day before our conference today so that we could talk about it. i thought that was very thoughtful. we are grateful for that. a little bit more seriously -- i that was petition brought to the supreme court teed up almost exactly the right issue. we gave this a lot of thought. the defining moment was the public release of judgment advisings order

verizon to turn over its records. i read that order multiple times. i said i can find it. is this provision, right here. -- it is this provision, right here. and i realized it was an order from the fisa court. could toerything we bring this issue to the one court that we believe can overturn that order. advocacy thank our council who has done a lot of work on this case. we have openings for clerkships. these follow-up for alan.

-- please follow up with alan. clear as the legal argument, there are two simple points here. we do not believe that section such a broads document production authority, as the core believe it has. we do not believe it is logical for many of the same reasons that congressman sensenbrenner made. as to the question of why did you go to the supreme court first -- we look very carefully at every other court and concluded this was the only basis tot we had a bring this matter to. did a to thank laura, who

great job gathering up legal scholars and former members of the committee that act -- that argued that we were right. we were joined by experts in national security law, randy .arnett think, i know there are other challenges being pursued thehe court, but i think u.s. supreme court will need to answer the question as to this inferior court's application of law and precedents. time int a strange american legal history where are coming out of the fisa court, interpreting

statutes, constitutional law, almost as final judgments because no one else would know about them. ado not think you can sustain judicial system in that way. i think the court will hear this. turn to you.will there are 16 cases live. one has been submitted to the foreign intelligence surveillance court. friday.ing on can you argue -- can you comment on these questions of jurisdiction? >> a lot of the issues are dried. i will not address those. the standing question is actually crucially important. in the case i was referring to earlier, the one we took to the supreme court this year, it is amnesty.apper v. it was a challenge to 702.

said our clients lacked standing because they could not show that their committee case and had been collected under the law. we made the argument allow the collection of our client's communication and they had to take costly measures to protect their communications from surveillance. that was an argument that the court rejected. the important point of that case is that the government's argument was the plaintiffs lacked standing because they could not show collection. arguing the call records program is unconstitutional and we have a court order that shows our communications were collected because the aclu is a verizon subscriber. that court order says to verizon, turn over all of your records. there's no doubt our records were collected.

the government has developed a new theory which is that, it is not enough to show collection. you have to show the government reviewed your records. that basis, they say we do not have standing to challenge his program. this program.e it shows the kind of litigation games the government is paying to insulate its surveillance activity from judicial review. thinking through the implications of that theory. if you accept government surveillance is immune from judicial review until someone can show their communications were reviewed, if you accept that collection is not enough, that review is necessary, nothing will stop the government from recording every phone call, from copying every single e- mail, from creating a huge database of information of

location on the theory that it may one day be relevant. on the day that it becomes relevant, the government will become answerable to a court for its activities. you would be excepting a whole lot of government surveillance. you would be excepting that -- accepting that surveillance without any oversight by the court. surveillance that is not cause injury, that is the government's arguments about surveillance is not reviewed, it does not create a case for controversy under article three. it is a radical theory under the dry rubric of standing. that is the government's argument. bob, do you want to comment? government lawyers have a

practice of not talking about matters that are in litigation. jameel'sagree with characterizations of the government's arguments. it would be best if we sat on that. yesterday, judge leon was very reluctant to find a district court had jurisdiction over the foreign intelligence surveillance court. how are you answering this challenge? >> we are not asking the court to review the order of the foreign intelligence surveillance court. marc brought that case. it is a case where they were asking the supreme court to review what the fisa court had done. what we are asking for is an order in joining executive

action. in joiningder executive action and government in conducting this program. there are lots of propositions that federal courts have jurisdiction or authority to review the constitutionality of government surveillance, even when the surveillance has been authorized by the fisa court. federal courts around the country review the constitutionality of fisa court rulings. one of the responses was that marc should have done with the districtand got to the courts in the first place.

i am not expecting that is going to be the hurdle. >> matt? >> i will pick up on bob's points. i cannot and would not comment on legation. point id make -- one would make, i don't want to be left with the idea that short of civil liberties at -- civil litigation, we are talking about all the ways government surveillance is bounded by the ,xecutive branch structures oversized through congress in a number of ways. the executive branch follows the law. toil litigation is one way enforce, but it is not the only way. you, we're going to open it to questions from audience members.

klees come to the microphone and if you will state your name and affiliation, that -- please come to the mic and if you would state your name and affiliation. >> i am an attorney in washington, d.c. you taking tore ensure that data collection is revealed to the defense? the fisa statute itself requires the disclosure of information and certain types of proceedings, particularly criminal proceedings. where it is to be used in a criminal prosecution, there is an obligation to disclose that. >> matt has it right. it might be worth noting that between 2008 and about a week

ago, the government never gave notice to any criminal defendant, even though it now appears that faa fisa amendment acts were used in criminal prosecutions. aboutwas a great story this by charlie savage about the ,act that the solicitor general when he argued to the supreme court represented to the that fisa amendments act removal defendants to receive notice when the government is prosecuting them on the basis of evidence derived from the fisa amendments act. it turns out not to have been the justice department's policy. their policy was to deny defendants notice, even in circumstances in which they were

entitled to it under the statute and constitution. they have changed that policy, which is a good. it seems there is a disconnect between the justice department and some of the security agencies about what has to be released and what can be you havensure what said. that data needs to be revealed to the defense. there is a think disconnect between the department of justice and the intelligence agencies. the department of justice makes the decision as to what is disclosed and what is not disclosed. there was never a case in which aboutce -- we are talking only fisa amendment acts. case ins never been a

which evidence obtained from the fisa amendments act -- amendment -- the department of justice has made determination of when they are going to notify. that is their call. it is up to the department of justice. >> does the department of justice have to work with the agencies in determining what data was used in the prosecution? >> they know. it is their prosecution. did you want to,? > comment? there was a just -- a description of the use of this -- fisa evidence in

investigations. is my recollection correct? he was saying there were circumstances where the government did not want the defense counsel to have access to fisa derived information and there were procedures within the act to provide affidavits to the courts in support of the type of information that had been obtained to establish whatever legal standard was necessary to go forward. is that correct? a difference between the issue of providing notice and what happens after that. it is true throughout fisa there that are provided to the court that are not necessarily provided to defense counsel. that is correct. >> there will be circumstances where there is evidence that is not available to defense counsel? between a difference

provision of notice and what happens after that. have been circumstances where there is information about that evidence that is not provided to the defense counsel. there has beennk any criminal prosecution since 1978 in which criminal defendants have obtained access to the underlying affidavits and warrants that were underlying the fisa surveillance. this is routine in foreign intelligence prosecution. defendants do not have access to the information that would allow them to challenge the constitutionality of the surveillance that is being used to prosecute them. >> thank you. another question questio? >> this is probably for mostly

matt and bob. in documents released last night, they revealed there were some oversteps, including 200 analysts from cia who were given access to reports derived from some of this information that should have been walled off. how have you changed that process? we have read these older court cases that have been released which nsa turns itself in for violations. any faster from flash to bang in detection of a problem and reporting it to the fisa court? back the trying to win public's trust, can you show that you are getting better at policing your self under these laws? yourselves under

these laws? >> as a result of the compliance matters that have been released, the nsa revamped their approach to compliance. they put in a director of compliance, they have a staff of 300 people who are devoted to policing compliance. nsa has made substantial procedural improvements. they're in the process of hiring a privacy officer. the answer is yes. i think they are doing better. are they perfect? no. you have a system that is run by human beings, they're going to make mistakes. you have stuff that is technologically complicated. everybody has computers and every other day you get a notice from some program that says an update is available, please download the update.

time a communications provider updates its processes, it may have an impact on how the is's lawful collection impacted. having been a nsa, this is something that has happened over time. the nsa has improved its structure. there is now i compliance officer who was responsible for the compliance programs. the complexity of the landscape and over the course of the last 30 or 40 years, what nsa does post-9/11 has touched on

domestic -- the domestic side of communications. it has been a challenge. having worked at nsa, it is hard for us to find on chances -- rulebound --.and says you cane collect everything, it's hard to violate them. it is remarkable how many violations there have been given how broadly rules are. it is important to keep both of these questions in mind. what are the rules and are those the right ones? the first phase of fisa reform was a period of secrecy where people like me said the

fisa courts were rubberstamped. i was wrong. iom the disclosures, understand there is pushed back and a dialogue. we have the publication. we are learning more. we're learning about how the court interprets legal opinions. this is a middle phase. there has to be a third phase. we have to be able to act on the information that has been made public, that we are now debating , to put in place the reforms that are necessary. this comes back to laura's work and the purpose of these meetings. middle phase is a question -- what do you think about what happened? it is interesting. more interesting is going to be what happens next. >> next question? sir. >> hi.

commander paul walker. i am a jack with the navy. -- jag with the navy. the statements regarding the vast chasm -- i want to address that and turn it to a question that might set up your next panel regarding the future. and the last 35 or 40 years, smith comes right after a year of fisa being passed. this vast chasm you refer to has been expanded through judicial interpretation cases coming before the courts. the third party doctrine is not limited to just business records and informants. as someone who has clerked at the district court level, i do not find the statements judges would not look at that and analyze that opinion to be

fairly credible. i think that any judge will be doing that. i think you have a fairly settled case law where many courts have said mandatory courts have said in addition that there's no reasonable expectation of privacy in those materials, and we give that up all the time intentionally because of what the court has said. i would ask, though, that in light of jones where at least one member of the supreme court has called into question, you ow, the feasibility of maintaining that position on the reasonable expectation of privacy, where do you think, jemele and mark, that the court might this jurisprudence ie