>> in few moments, a columbia university forum on how journalism has been affected by edward snowden's release of classified information. and in an hour and a half, american profile interviews with a democratic senator from north dakota, followed by a south dakota republican. >> the beauty of america is that in this country we have the ability to write the script of our own life. we are in a sense in the driving seat of our own future. and our biggest decisions in life are made by us. america creates this sense of possibility. and out of that you can become

an activist, a community organizer. in a sense, what are you doing? you're living off the great capitalist explosion of wealth that you didn't even create. up, many strong men set it's hard to know where to begin. nobody said america's the most charitable place. but there are a couple of assertions that you have to take on faith that are astonishing. one is the idea that america's great invention was wealth creation, not based on theft at all. what about the theft of the entire continent? that was a theft. that doesn't mean -- [cheers and applause] 90% of the residents who lived here were murdered. and that was a part of it too. bill ayer and anesh desouza debate what's to so great about america. friday night at 8:00 on c-span. >> last month, the columbia university journalist school began a year-long project

titled "journalism after snowden." this 90-minute forum talks about how they broke the edward snowden story. also on the panel is executive editor of "new york times" and members of the president's n.s.a. reform panel. >> good evening. if you're interested and care about the u.s. constitution and freedom of speech and press, protected by the first amendment, or if you care about the role of journal. i and the press -- journalism and the press in informing the public about important public issues, or if you care about the rules and rights of leakers of government classified information, or the level of information the public needs to exercise our responsibilities of self-government in a democracy, or the role of the

state in keeping its citizens safe and functions effectively, or in the perplexing problems of working out a global system of free expression, in a new world defined by a truly global communications system, and nations with vastly different views about the freedom of speech and press, if any or all of this interests you, then tonight is your night. we can look forward to hearing from distinguished leaders of some of the most important press institutions in the world. which have had direct recent firsthand experience in these issues. and one of the key figure notice current surveillance debate who also possesses one of the finest legal minds of my generation and who has been a friend and colleague for many years. the questions to be discussed tonight are profound. among them is this one in particular.

in the united states, we have worked out, over the past half century, through major supreme court decisions, led by the pentagon papers case in 1974, through legislation and through custom and behavior by the government and the press, a workable, if unique and somewhat unruly, system. it goes something like this. there is no official secrets regime in this country. as there is, for example in britain. the government has full constitutional freedom to classify information as it wishes. for its part, the press may receive classified information from government employees who are disposed to hand over classified documents. moreover, subject to a variety of legal subtleties and nuances, the press may publish those classified documents with constitutional protection. the leaker on the other hand may be prosecuted with little or no first amendment

protection. the only question being just how vigorously the government will track down and prosecute the leaker. in practice over the years, not many leakers have suffered that fate. also, by custom, the press will typically discuss what has been in its possession with the government and make a careful judgment about what to publish and what would be too harmful to publish. and the government in turn does not try to push the legal interpretations that might support a breach of the first amendment protections of the press. every nation must reach some sort of balance and accommodation of these competing interests. and arguably up to now, this has worked well in the united states. but what happens now, should the balance be struck in the same way? a world in which hundreds of thousands of classified documents can be leaked in a second, by leakers who may wish to do harm, not good, to society, then disclosed by organizations that are not

necessarily public-spirited in the sense of "the new york times," "the guardian" or "the washington post." and when any publication is now instantly global in scope and may violate the laws of other nations states. what now indeed? these are the kinds of questions, like others, involving state acquisition of massive data about activities of citizens that institute the end-all and in which a society ultimately defines itself, especially in the respective roles of the state and its citizens. so tonight's discussion is a special moment in that larger sense. it is now my great pleasure to introduce our wonderful new dean of the graduate school of journalism. [applause] >> thank you and welcome. tonight's event marks the

public launch of a project of the columbia journalism schooled called "journalism after snowden." it's a project made possible by the tao foundation. i'd like to recognize len tao who is sitting here tonight for his support. and it constitutes a year-long series of events, research and writing from the tao center for digital journalism which my colleague at the clubia journalism school faculty directs. and it's being carried out in collaboration with the columbia journalism review whose new editor and publisher is here with us tonight. as we have so eloquently described, and i won't attempt to repeat, the snowden affair has sparked an unprecedented debate about digital privacy, the pursuit of national security after september 11, and the power of the state. it's also sparked an important and continuing debate about

constitutional rights in the united states and globally governing the press and free expression. but it's also changed journalism and is in the process of changing journalism and has raised profound questions about the practice of journalism that feel very unsettled and that's going to be one subject of the panel tonight. these include shield laws and subpoena defense, the sort of front line experience of reporters under pressure in their relations with confidential sources. the very viability of a regime of source protection in the digital age, how to define and spread sound practices of digital security. and the growing professional-amateur divide in journalism caused by the de-institutionization of many reporting reporting fuppingses. all of these are subjects of the larger project of journalism after snowden it. will constitute over the year ahead a series of articles about the implications of state

surveillance and, for the practice of journalism, research about changing journalistic conduct in a time of data insecurity and state surveillance. and we intend to carry out an in depth survey of the practices of investigative reporters, their use of digital security tools, their understanding of them, and the potential to improve the security practices of working journalists. and, finally, we intend to bring forward online resources that will be available to all journalists, to assist them in protecting their data and their sources and to make recommendations for the protection both of journalists and the people that they collaborate with in and out of government. that all lies ahead. tonight what brings us together is this extraordinary panel that my colleague emily will now direct and introduce. so i thank you for being here and for your attention. emily, over to you. [applause]

>> thank you. thank you all, all of you, including the late students, for turning out tonight. for what we believe is going to be a very important year of work for us. my colleagues are looking very enthusiastic. we're incredibly lucky to have this great panel with us here tonight. and i think this will be a great moment to address many of the issues that we've already had framed. but before i introduce, i have two important pieces of housekeeping, one of which is say in true clanian jump -- columbian journalism disclosure, i worked on "the guardian" for a long time. if you if you're worried this is too close and cozy a panel, i'm here to tell that you you're correct. it's your job to be the effective opposition. and the second is that we couldn't have a better panel tonight but we know there are

many, many voices who are not included on the panel. there are the reporters who were involved in really finding the story,. we're very lucky to have one of the reporters who broke many of the stories through "the washington post" here tonight. i'll be going to him just to get a quick response to what he's heard. and then we'll be having some q&a from the audience as well. please be thinking of questions because i'm sure there are plenty i will not get to. so, to introduce the panel. on my immediate left is janine gibson who is the editor in chief of "guardian u.s." which broke the initial stories. the xt to her we have is editor of the "new york times" on the west side. needs no introduction. but nevertheless we're delighted to have her here. she's a member of the board of visitors of the journalism school. and also i think it's fair to say that "the new york times" is still the voice, the

editorial voice which is probably most listened to by the establishment in the u.s. i hope that's not too controversial. next we have david schultz. david is the leading first amendment lawyer. he's very kind to make time in his schedule to teach up here at the law school. he's a partner at a law firm. he is "the guardian's" lawyer on the n.s.a. and before that he was external counsel to "the new york times" on wikileaks, i believe. so he has been inside two of the biggest stories of this time. and we're very, very pleased to have kas here. one of the things we have sought is to get members of the administration or the n.s.a. to come and talk to us. they're not quite ready for that yet. we hope they will. at some point. he's one of the country's leading scholars and constitutional law. he served in the obama

administration as the administration of the white house office of information. he's served many of my students,. i'm -- he's married to the u.s. ambassador to the u.n.. but tonight he's here as a member of president obama's review economy on intelligence and commune -- committee on intelligence and communications technologies which is one of the panels convened in response to the revelations by snowden. so we are going to address the -- what's the journalism after snowden, but first i want to go to janine first. i think some of the -- of us are familiar with this, some less familiar. can you tell us about actually breaking the story? tell us a little bit about how it came to you and then what it was like so you can set the scene of how -- what is it like to deliver a story of that size to the world? >> well, it starts very small, of course. like everything.

t starts with a phone call from glen greenwaled and i should say, you know, the guardian is a 200-year-old news organizations with a storied history of breaking large stories, we are wikileaks, we're even accustomed to the megaleak. but in america we're 2 1/2 years old and we live in a small loft in soho and while we are all -- we all have "guardian" running through us and our combined work history might be eight years or so, in america we don't look like a 200-year-old news organizationment we call ourselves "g" by the guardian. i'm sitting in a soholoft and i got a call from demren and he said, i think i have the biggest intelligence leak in a generation. if not ever. >> i like it when reporters undersell stories. [laughter] >> well, obviously your first thought is, we might be the

judge of that. oddly, because of wikileaks, and the various measures we'd had to take while working on it, i knew that skype was not a particularly safe form of technology. and i knew that glen had a skype phone. so my first question was, are you calling me from your delightful rio residence on your skype phone me? said, yes. i said -- hm. so we didn't talk very much. in that conversation. it became very clear that the first thing he was going to have to do was get on a plane. he explained that he was going to see a sample of the material, that he'd had encrypted conversations with the source. it's funny to remember now. we did not know his name. we didn't know his name. he wasn't the source -- he was the source. for a quite long time after we did know his name, we kept referring to him as the source because he'd been the source

for so long. he was going to get this small sample of material and look at it and he would call me back and if he thought it was good, he would get on a plane to new york. so within five days he was in our loft. and there were five of us in the room then. and laura and a reporter. in the entire universe of "the guardian" staff, if you could pick someone you wanted to have outside your office when he walks in with the biggest intelligence leak in possibly ever, it is ian. he's not here so i can say grizzled. he's done everything. he's been to every war-torn hot spot, he was the d.c. bureau chief. and he's the person you send to the fire, whatever the fire is. when it became clear that, you know, we're sitting there on the cheapest sofa in the world,

on an air gap compute that are we've had to sent somebody out to best buy to buy, looking at what later turns out is the prison presentation and you've seen the slides. they don't look like the most top secret thing in the world. but quickly, very quickly realize, it's either an incredibly huge, sensitive, difficult story, or it's the hitler diaries. it's a great big hoax and the next job is verification. he was straight away into how do you verify it. >> how long was the verification process? >> it was really intense. we put people on a plane to hong kong and they went to a hotel and i think everybody knows a detail that was maddeningly reported first in "the new york times." they identified edward snowden by use of a rubix cube in a hotel lobby. and couldn't believe he was 29. we assumed when we were looking at the material and the description of the rest of the material that this was going to

be somebody very senior, this was going to be somebody really high in the ranks of n.s.a. we were expecting -- and they we couldn't work out the psychology of it. in new york waiting to hear from the people on the ground in hong kong, you spend a lot of time speculating. what would cause somebody who is career n.s.a. to walk out with the crown jewels? they saw this kid walking through a lobby and they thought, that's not him. then of course you're right into the hitler diaries. e had him briefed on the standards of verification that we'd want and he spent three days locked in a room interviewing him, show me this i.d., show me this car parking pass. they were very convinced by him. and his motives. and of course the material that he had. and then you move straight into , what of the story? what can we do? and the first one was clearly, the fisa court order.

>> it should be made clear there are 56,000 documents, is that right? >> no, there are many more than that. many more than that. there are 56,000 in one cache alone. which was the cache that edward nowden gave to ewan. >> does anyone actually know -- can anyone quantify what the size of the leak is? >> i don't think anybody knows. the n.s.a. said for a while that they did know and then they said they didn't. >> so, just on the launch of the story. it's june 5. >> yes. we're working in huge amounts of secrecy at this point. we have realized that communications at hong kong are necessarily going to be sparse and very highly encoded. the first thing we did was fly james bowl to new york. he's a veteran of wikileaks. sitting in the second row.

and freakishly young. really annoyingly young. but brilliant at all things involving cryptology and technology. he can also fix a printer. >> very important. [laughter] i didn't know that. we must call him. >> without putting it on the network. but he came and introduced us to disposable chat rooms and properly secure technology. then we had to teach glen and ewan how to use it from london. fortunately again they were being taught how to do it. if you're going to learn how to do encrypted technology, be taught by the person who works at the n.s.a. doing encrypted technology. they came back really knowing how to move documents around securely. but we're trying to edit the report and stand up and verify a story about a document that nobody's ever seen, nobody -- you can't google secret file fisa court order fs it looks like one that's in the public -- nothing. that's not funny. that's a genuine problem when you're trying to work out what

it is. but we realize they have been referred to in reporting and that one of the crucial factors around this document is that, if you are the subject of a fisa court order, there's a gagging order. and you can't refer to it. so we knew the first call we had to make was to verizon and if the spokesman said there was no such thing, then we were not allowed to do that. , we'll lly, they said call you back. then they called back very quickly and said, sorry, can i just check, what's the name of the agency on the gag order? on the fisa court order? and what is the date? which we were listening to this and thinking, it's a bit like -- is it the pink one or the yellow one? so we started to think -- but up until that point you've got a huge amount of work in it. enormous amount of money already. barely even started paying david's bills and you're still

thinking, this could all be not -- this could be nothing. this could be a massive, massive hoax. but when the verizon called -- so the verizon call was tremendously important. we were working to script at that point but we knew that was a really big step in verifying the story. then we spoke to the administration and then it became very clear that it was in fact a genuine document. at which point, week of been incredibly lucky. there's only two questions you need to ask yourself and they are, is this story true and is it in the public interest? and before we went down this road, we spent a lot of time with several lawyers making sure that our ethical, moral journalistic interpretation of the public interest matched up with the legal interpretation of public interest, both here and globally. so then it really did come down to verification and is it true? and we have basically tried to hold on to those two twin

pillars ever since. if you're really holding onto, is it in the public interest, and line by line, that's what we worry about, it sort of takes away from the enormous thing that you're, doing, by starting to publish these stories. >> i want to bring jill in. at what point did "the new york times" get involved? were you approached by "the guardian" with the documents or did you solicit them? >> i would say it was a delicate combination of those two things. we did not break the story, the guardian d and "the washington post" did. that caused me a high degree of worry. >> what did it cause the news room? >> i think the news room was resolute. i think disappointed, as was i, that we didn't break the story.

ut it was not at the forefront of the psychee of my colleagues. but it was, you know, a concern of mine and i felt that we had had the very productive collaboration with "the guardian" on wikileaks. obviously "the new york times" broke the pentagon papers story, which president bullinger eloquently eadvocated in his opening remarks. and in 2005 we had published the first story about warrantless eavesdropping by the n.s.a.. so, i felt all of that provided a very firm base, you know, that made a powerful argument that "the times" had a constructive role to play in these stories.

actually, i've heard from allen the first weekend after the stories were published. the editor of "the guardian." and we had a chat in my office the following week and sort of -- it was a somewhat vague conversation about collaborating and maybe we could and as any aggressive journalist would do, the door was a little bit open and i tried to stick my foot in it and keep, you know, keep it opening a little wider. from time to time i would call allen and just say, you know, we'd love to work with you and nothing happened for a while and then he did get in touch with me and the catalyst, i believe, for him reaching out to me was that he definitely

had the sense that the british government was about to come down very hard on "the guardian" and probably demand the return of the materials and he was deathly worried that the public interest role that janine spoke so powerfuly about would be -- the plug would be yanked. >> of course that was proved to be the case. > exactly. sometime before the authorities actually came to the guard -- came to "the guardian" and they had to literally destroy their "the and what not, times" did obtain some but not all of the snowden materials from "the guardian" and we all of the ide by

protocols that "the guardian" had established for keeping these materials as safe as possible. i think that's a really important point. it's not the sexiest opponent but you were asking janine about the process by which they verified the story. i would say the process by which the guardian sort of schooled us in exactly how we needed to handle the documents, safekeep them, communicate in a very secure manner, that that is probably, you know, took up days of janine and me talking before we got a lick of actual work done. i just think that that point is somewhat lost on the public. sometimes they think, oh, a leak, it's just a bunch of stuff that's thrown at us and we just rush to publish it.

and that is never the case and could be the least true in this situation. >> this touches on something that i want to come back to just before i move on. the two of you, the surprise of these stories, the unknowable end, you know, even with the pentagon papers, you could fit them into a shopping cart. and wheel them across the news oom. and part of that was actually, you know, elseberg had to make selection choices partly on the basis of what he could actually get out. now we have these unknowably large stories that technically are incredibly difficult. but also isn't the difficulty of them an enormous journalistic challenge? you talked a little bit about the difficulty of that. about there must have been times when both of you thought,

are we actually capable of eporting this story? >> i think from the beginning we realized we couldn't do it alone in different ways. there was a very obvious point, we were running this as a new baby foreign addition of "the guardian." the first thing we had to do was crawl back to the parent company and put in some help. but the second thing you realize is you're going to need outside experts. talk a lot about being open at "the guardian." it's up with of our philosophies of how we work. thanks story that is the most secret thing you could ever do but at the same time you have to accept you can't do alone. you're going to need security experts, you're going to need experts.t with other news organizations, because your material could get destroyed or because there's a chill in the u.k. and we have brought in partners

to work on an enormous number of the stories. on top of that, you have to make up how you're going to assess the material. we almost had a contract about how we were going to search it. we were really keen that we weren't going to use these documents as a fisher exercise. there wasn't going to be a team -- with the wikileaks documents, which are much less sensitive, much lower level, we would bring in, you know, subject specialist journalists and they could have a search and -- and country specialists. >> country specialists. this is a very different sort of thing. you don't want to be using national security material to -- you want to use it to confine to the scope of the nature of the surveillance in front of you. we have had all sorts of conversations about how to build boundaries about what we were -- we would report and then conversations about how best to do that practically. do you put a small team in for

wo weeks, get them to widdle down a short list of store -- whittle down a short list of stories. >> that is what we did. and that's what we did in wikileaks too. in both cases, we worked closely with "the guardian", a very small group of editors and reporters who worked together, not in the middle of the news room. but on a floor, remote from anybody else. exclusively went through the documents. and after that long process, then moved to the next phase which is trying to put them in , to start context reporting. in our case i thought, some of what we brought to the table, you know, were our reporters in silicon valley who had very good sources on all the companies that "the guardian"

could see, this was a source of controversy within the companies themselves. they had been required to cooperate with the government but whether it was right to or not became a very live debate. we could add reporting fire power on that type of thing as well as inside the u.s. government and in the intelligence community. >> that's a terrific, i think almost sort of tectual kind of background. you almost file like it was like to be in those rooms. i want to bring in david and then kas on these legal issues and the response, if you like, with the legal minds in the government. david, to you first. you've been on the inside of these stories. is something changing? obviously the scales of stories have changed. what are the challenges legally and where does the first amendment fit into this? >> it is a bit of a conundrum

because in this country, as was mentioned in the opening segments, we don't have an official secrets act. we don't have clear laws about -- and you can argue it's a very good thing we don't. but on one hand, the criminal liability, what we have primarily is an espionage act that was written during world war ii. >> 1917. >> 1917. it wasn't intended to cover the kind of disclosures that we're talking about, through the press, to the public. it was to get spies. and for a long time it was thought that that's all it dealt with. that started to change. and in the 1980's, for the first time a source, not a reporter, but a source was prosecuted for leaking information to the press. it was a navy employee who was working as kind of a freelancer for a magazine in london, a defense magazine, with the knowledge of the navy. and the condition was that he could write for them as long as he didn't disclose classified information. and then at some point, as he

was negotiating full-time job to go work there, he secretly provided to the editor some highly classified spy photos that were considered very sensitive at the time because it disclosed to the soviet union the capabilities of our atellite cameras or our aerial cameras. and so he was prosecuted criminally. and there was a big debate at the time about whether the espionage act was intended to apply to this type of disclosure, not to a foreign government, but to a news organization. and he attempted to defend the claim that the law doesn't apply to this tind of disclosure. and his conviction was upheld. but in a kind of interesting opinion, he was raising a essentially a public interest, his first amendment defense, in part, he said, i did this to a journalist, not to a foreign government. there's a public interest here. that was rejected but it was tied to the facts of the case.

the court said, he was being paid for. this he knew what he was doing was wrong. he took off the classcation before he turned it over. he provided it to them secretly. the way they linked him up was through fingerprints, the old-fashioned way. so they said because of the bad intent and the knowledge of the arm that it would cause, it was not a problem under the first amendment to apply the espionage act to him. but two of the judges who decided that, two out of the three, said, if you make the same arguments against the press, we think there would be real first amendment questions here and it would raise different concerns. so on the one hand we have this very vague law and on the other hand we have this notion that the press is different, that there are first amendment rights. a long line of cases that say that you can't prosecute the press, you can't punish them for publishing true newsworthy

information. that's kind of a settled principle in many areas. but it's not an absolute right, as we learned in a case a few years ago. there's a balance that has to be done, even with truly newsworthy information. and we don't know how the court will deal with that when the balance is the public's right to know something versus a national security interest. never been decided. so we don't know what the risks are. there is a real risk. because what the espionage act says is that it is a violation, a criminal violation of the law for a person who has unauthorized access, a reporter , if you get national defense information, it's not even classified information, if you have possession of it, the mere possession, the failure to return it to the government, or the disclosure of that can lead to criminal violation, if it is reasonably -- reasonable to believe that the disclosure could harm the united states. so it's a very broad law. the government takes the

position it doesn't require an intent to harm, it doesn't even require actual harm. if the document on its face could reasonably be understood to possibly provide harm, and in fact, a document shouldn't be classified unless it meets that standard, so you know that if you have a classified document, at least in theory, the mere possession of it is a violation of the law. so it becomes sort of a tricky situation to advise a reporter or a journalist how to handle that. but on the other hand, that's the bad news. the good news is, since 1917 there has never been, almost 100 years, there has never been a prosecution of a journalist. we have a very strong tradition in this country of protecting the press. and so there is this uncertainty that that's the little dance we do. so dealing with the situation like this of course, you want to limit the number of people who have access to this so you're not putting people at risk and the basic advice is, if you're going to publish this

information, it should be so important that the american people have a right to know and that could you convince a judge, if you had to, that this was something the public needed to know. but it's still an unresolved question whether that even is dea fence. the governments -- defense. the government has taken the position there's no first amendment defense to this law and no public interest defense. it's a gray area. >> i want to come back to that in a minute. first of all, let's bring kas in. of ugust, your approach having to review this for one of the review panels, can you talk a little bit about how you set out to do that and what you looked at before we get into this? >> great. so, we were constituted in late august and it was a diverse group with one of the leading first amendment scholars, he's associated with the american

civil liberties union, jeff stone. a prize-winning book on free speech, of which he's one of the nation's strongest advocates. we also have one of the leading, maybe the leading privacy expert in the united states, a guy named peter swyer, who was the privacy person in the clinton administration. a long standing perch in the c.i.a. who had been -- person in the c.i.a. who had been acting director in the c.i.a. with three decades of experience there. he also is strongly committed to a free press and civil liberty. and richard clark, who is counterterrorism specialist, who has very strong convictions about freedom of speech and privacy as well. and then a regulatory guy with some constitutional background, yours truly. , so the first thing we really decided to do was to try to learn as much as we could from people in the country. so we did something quite unusual which is we asked for a public comment process in which

we asked people, basically all over the world, made a global request for comments, and we got hundreds. and while some of them, as i recall, had to do with people wanting to sell us pencils and paper, which we already had pencils and paper, but most of them were substantive and about the issues at hand. every word was read and they were incredibly valuable. we also had meetings, extensive meetings, with people all over, including people who are specialists in privacy and civil liberties, the rights of journalists, got a lot of information from that. it made an impact on our report. we ended up endorsing four principles and i won't do them in exact order because i think the first one i'm going to mention is maybe one that's most salient today. which is, there's a lot of talk about balancing, about balancing national security against privacy. we think in important respects that's misleading and actually

harmful. there are some things that just don't count in the balance. so if there's an effort to suppress dissent, to go after people because of their religious convictions, to target people because of their political beliefs, to go after people because of their jenter or ethnicity, that's not part of legitimate balance, that's just off limits. very important to identify a set of impermissible reasons for surveillance or anything like surveillance. and we say in the report that that is a foundational principle that applies inside and outside our territorial boundaries. so the first idea is the limits of the balances metaphors, a way of approaching these issues. the second is by i think a happy coincidence of language. the word security actually has at least two meanings. two which are crucial here. and they both have a latin root which means free from danger,

safe. and that entails both not being blown up or at risk of being blown up and also feeling that your persons, papers, effects, etc., are safe from government intrusion -- affects, etc., are safe from government intrusion. our rue is that these two forms of security, which have the same linguistic root, can both be safeguarded and it's a big mistake to think that in a free society one can be pursued at the expense of another. one thing we're fighting for when we protect the national security is the other form of security and it shouldn't be relegated to second-class citizenship. the third idea is that there are multiple risks involved that surveillance calls up. and it's a big error to think about only one. so national security risks are one. and they're very important to consider and they're part of the mix. but risk to journalistic freedom are also one.

and that has to be considered. risks to our relations with foreign countries, including those who are friendsly with us or we're trying to cooperate, that's another. economic and democratic risks that cut across territorial boundaries, that's another set of risks that might cut in a different direction from the national security risk in terms of what policies to adopt. and of course risks to privacy which are a central feature of the overall calculus. he ideas we're dealing with, risk management and the risks that involve operate along a number of different dimensions. the fourth and final principle has to do with the need consistently to focus on the consequences of what government policies are. not only before the fact, but in an ongoing way. so if it's the case that you have some policies that were adopted, let's suppose, in the aftermath of 9/11, or a year or

two before 9/11, to decide in a -- the best ects practices of newspapers and businesses, which is to re-investigate your practices to see what actually are they doing to people? so you may have practices that at one point were thought necessary to protect national security, but it turns out they're really not doing much on that, but they are scaring people or they are chilling system of free expression. that has to be known and subject to continuing scrutiny, not just by the intelligence community, as important as it is to the scrutiny, but by a range of actors who include people who aren't maybe principalably concerned with national security but who -- principally concerned with national security but who have privacy or civil liberties as their mission or internet freedom as their mission. that last principle, that is balancing the human consequences, keeping your eye insistently on that ball, not

only when you adopt the policies, but while you reassess them, has institutional implications. we suggest important changes in the foreign intelligence surveillance court and also important changes in the structure of the executive branch where just to give one example we say there should be a designated official in the white house who has privacy and civil liberties as his charge. to have that person in the room, having a convening function and having a presence, can help ensure both that risk management operates along the full range of dimensions, and can also ensure the kind of continuing scrutiny that a free society needs. >> i can just ask at that point, though, the recommendations i think probably went further than some people were expecting you to go. certainly not as far as other people wanted you to go. so, for instance, on metadata storage. you said it should go to third party or private kind of companies. it shouldn't be kept by the

government. one of the other review panels had a slight different review which is that it couldn't be kept full-stop. i wonder why you'd stop short on that? >> to state our recommendation, we believe that the meta data, that is who the phone numbers are from, and -- who's calling whom and when, the government shouldn't be holding that data. in a free society, if we're engaged in a risk management exercise, there are undue risks to privacy and civil liberty with the government holding that data. we think that the information should be held privately, which has a safeguard against the risks of abuse which in american history have not been absent. not in the recent past, not in the last years, but under president nixon and president johnson there were risks from surveillance. and before. so we don't urge that the information should suddenly be

held by the phone companies. that's not what we urge. the phone companies have that information. they hold it for consumer protection reasons, in large part. they hold it because they don't want to be billing you for stuff that you're not responsible for. in fact, the federal communications commission, whose mission is not surveillance, requires that landlines at least, the phone records be kept for 18 months. they hold it either voluntarily or by f.c.c. mandate. like your bank has your bank accounts. we don't recommend, in fact we recommend the opposite, that the government should be holding bank account records. we are big against storage of all people's mettadata. in a free society that's not what we're for. we're against that. but banks have the stuff. they just do.

the government can get access to it through a warrant. that's the system of free society designs. we don't urge that the banks should disassemble people's bank accounts because it's dangerous for them to have it. we urge that the government should not get access to that information except in accordance with the standard legal forms. what we urge here is precisely parallel to what's always been the case in a fourth amendment -respecting situation. materials held in private hands and the government has access to it on the basis of an appropriate showing. >> there are many more recommendations. i wanted to bring back the whole panel. we're here to talk about journalism after snowden. actually, there's a very important legal point. you touched on it, dave. which is, you know, we have the director of national intelligence yesterday saying, well, first of all, two things. he said, people with material should give it back.

so, jill and janine. [laughter] do you have a response? >> now that you say that. >> but -- the other thing that he said was, he talked about edward snowden and his accomplices. and after a couple of calls, the clarification from his office was, accomplices could potentially mean journalists. now, given what they were saying about the espionage act, do we even know what the policy is for the obama administration? the attorney general in the ummer said that in the james rosen case, who is the fox -- had his was phone calls -- sorry, his email taken, he was actually described as a co-conspirator in leaks. the attorney general stepped back from that. but there's a great deal of --

there's a lack of clarity, isn't there, here, about what the actual -- whether we even have a policy around this? i don't know whether you can respond to that. >> i can tell you a lot with the obama administration's policy with the paperwork reduction act which i was helping to oversee. i can tell you a good deal about our policies with respect to cost-benefit analysis and environmental stuff. apologies. the other i wasn't involved in so i don't have a view of the policy. >> let me maybe tie a couple of points and throw some issues out. one of the points you're raising is that if you have a system of free expression, there has to be a basis for confidential communications between reporters and sources. that's one of the things that the privacy and civil liberties oversight board underscored in their report that came out last week or the beginning of this week.

, which nk the concern is evidenced by all the interest in this, is that the snowden revelations kind of were a wake-up call. i mean, jill is right. we knew a lot of this was going on in 2005. and people have reported on it. but seeing that fisa order that said, give us everything -- >> it was the scale, that's what's different. >> and what we're realizing now is that it's not just the phone records and all the good things we can say about the recommendations on metadata, which they are very helpful and very strong and good ways, it's a piecemeal approach. because we also know they're getting not just your phone records but they're getting email in various situations, they're getting geolocation data. they're getting your contact lists and your buddy lists and all soorts of other information that they get in various ways from your cell phone from various websites. so part of the problem is, it seems to me what we need as a society, we really need to

understand what we mean by privacy. we talk about protecting privacy. two years ago the president and the white house got behind an initiative that was geared at private industry. said, we need a consumers' privacy bill of rights because all these corporations are collecting your data. well, we need a privacy bill of rights. we need to know what it is that the government can and cannot do, what corporations can and cannot do and we don't have a consensus on that. europe has a whole different view of privacy than we have here. and in many ways it's more refined and more forward-looking when it comes to data protection. and it's going to affect things like reporting. what the attorney general said this summer in reaction, and just, if you weren't following it, what happened is the department of justice wanted to get the email of a fox reporter because they were doing a leak investigation. and because of an anomly in the law that says you can't get -- there's two laws that were relevant. one says that you can't get

email unless you get a search warrant. they wanted a judge -- so you can't just do it with a subpoena without having a judge approve it. that is one law. there's another law that says you can't use a search warrant against a reporter because you want to give the reporter notice with a subpoena. in any event, they wanted the email so they had to get a search warrant, but they couldn't get a search warrant against the reporter, the exception of that is if the reporter is suspected of a crime. so they actually filled out an of a day of the and got a search warrant where they said there was reason to believe the fox reporter had violated the espionage act or was a co-conspirator because he was asking questions of someone who had access to classified information. the attorney general said at the time, we will not prosecute journalists for doing journalism. what does that mean? >> something that i think is an issue for journalists and

citizens for the next 20 years, which is there's been a distinction in law and more generally between metadata and content, so some people have a thought that if government has access to your phone calls, that's really troubling. if they have access to metadata, meaning what numbers are calling what numbers, that's a completely different problem. we in the review group are uneasy with that distinction. that if the government has cess to knowledge about whom you are calling and when and where, meaning the numbers, and it can figure out who those people are, that's a privacy problem. and that needs to be -- that distinction between metada meta data needs to be --

data and data needs to be rethought. certainly for policy pumps -- purposes, the idea that government has, you know, your metadata, it can tell a ton about you. whether it's going to be used illicitly or, you know, to target people on the basis of illegitimate grounds, probably that's a risk and not a high one under current circumstances, i'd even say a very low one, but in terms of the kinds of security which people in a free society are entitled to, and certainly journalists and their sources, that's something that needs to be reassessed. >> i just wanted to now -- bring the conversation right back to the fact that the title of this is "journalism after snowden." i think we can all agree that edward snowden has done us a favor. do we have general agreement on

that? that edward snowden has done us a favor. can we agree on that? [laughter] >> who are you asking? >> i'm asking the panel. can we all agree? >> i have no comment on that. [laughter] we have a 300-page report and the word snowden doesn't appear in the report and -- >> just to pick up on that. this goes to the heart of the issue in a way. because you recommended lots of i think recommendations that people would generally endorse and critics of the administration would endorse them as with. but the fact is that we've had oversight and oversight as failed. and where oversight has failed, a whistleblower and journalism has succeeded and yet the system is still wanting to punish, if you like, the one

thing which has led to some transparency and -- transparency. >> that should be unsurprising. useful backdrop to seg waying into how journalism -- seguing into how journalism has changed after snowden is to acknowledge that during not obama administration, there have been seven criminal leak investigations. more than twice all of these investigations and all of history before president obama took office. and this has had a profound effect on journalists who cover national security. with the snowden case being only the most recent. this seems to be, if not a stated policy, a reality where journalism about sensitive national security issues that i

see as vitally in the public interest is effectively being criminalized and a real freeze is setting in in what had been to this point i think a healthy discourse between sources and -- nalists and i might hear if i can take just a minute, because the gentleman had quite a long bit of time to speak, as to point out that max frankel and a very famous of a day of the in the pentagon papers case wrote eloquently about how the public does benefit from this discourse. in the job een both as washington bureau chief of "the times" certainly then growing as managing editor and now as executive editor that these criminal leak investigations have had a very profound effect on journalism.

>> come back to the accomplices point. the thing that was completely different about the story, you know, as journalists we all understand that at some point somebody might threaten you in the means of trying to get you to reveal a source and there's a sort of tenant that you learn in places like colombia, that you would go to prisonen to protect your source. this source never thought his identity wouldn't come out. the very nature of the story. he knew exactly how fast they would be able to track him down and identify him, as soon as the revelations appeared. and the reason that first week was so intense at first was the idea of getting as many stories out as possible before it just became about source hunt, witch hunt, who is this guy? for a 29-year-old he had an erie -- eerie precedence about what would happen, what they would say about him, what they would try to -- how they would

try to characterize him. he wanted to be able to control his own story. what that means to the journalist is instead of the journalist, instead of being prosecuted over identifying that source, we are now into something even more chilling, being co-conspirators. this has become part of a conspiracy, possibly involving the kgb or maybe china. [laughter] because the ordinary way of chilling journalism will not work in this case. we are not going to worry about naming names. it is about proving you are not a co-conspirator. >> and to say that this chilling

effect of editors and lawyers, is it just not possible to comment at all for your protection or client confidentiality? knowing what we know now. >> it is very problematic. there have been stories that we have had since snowden, a journalist who has had a source who they have been bidding with for a number of years on relatively innocuous bits of color and detail suddenly wanted to give him something much more serious and profound. and you are looking and going, right. so there will be a gmail trail going back some years with your contact with this person. >> it is amazing to me. over the course of the past literallyurnalists saying to a source, i will go to jail to protect your identity.

those words are now uttered. >> you have a reporter who is currently fighting that fight. >> worried about that possibility. >> i want to leave plenty of time for questions. up on this to wrap point about the inevitable arms race of technology which allows us to do all sorts of things, but leaves fingerprints all over the world. that can beings useful for governments and is this a legal remedy we are thinking about here? is it a technical remedy? where do we start given the technology? >> there are so many great topics here and they are diverse. one topic is getting democratic governments on a sound foundation with respect to these

, bracketing a question which is a different question. you could think that the idea of government storage, private content,tadata for just not acceptable in a free society. that is assentially, good thought. you could also think that the government access to such material, when the government wants it, should be qualified by what free societies insist on, which is an independent, neutral arbiter, a judge agreeing on the basis of a certain showing of need. that has served this nation quite well when it has been observed. that is also a good foundation. in a way, this is about taking forward some not new ideals in a radically different

technological environment and insisting on their enduring value. that is one set of issues. there is another set of issues raised about private ownership. that raises different challenges and the consumer bill of rights thing is about that. >> i am going to go to bob. you have been listening to this. there are so many things we have deep onto, these really discussions, but i want to call on you as a reporter. what do you think? >> thank you for including me. i will try to give deep discussion in a couple of short minutes. thented to parse what director of national intelligence said yesterday about accomplices and returning the documents.

and put that alongside something int happened down the block the judiciary committee, where the attorney general said that he had hoped to release publicly the guidelines that they were using in investigations relating to reporters and sources, but that a glitch had arisen and he was not yet ready to release these guidelines. what could james mean when he said that edward snowden and his accomplices should return the stolen documents? the only other people known to have these documents are a small number of journalists. it could be just a rhetorical expression of anger, perfectly understandable for a secret agency that has had secrets for a long time. it could be a request for assistance or help. if that were the case, you would expect that the government would have come to these organizations

before or after and done so. or it could be a kind of thatling, a way of saying there is a risk here. accomplice has meaning in criminal law as a co-conspirator, aiding and abetting. besides the actual risk of prosecution, which i think still is remote for the reasons that dave has described, there is an investigative issue that very much relates to the ability to do naturals -- national security . journalists now, almost everything you want to write the pressrything but release or the news conference is crossfire. that it may be -- that is just how it works. article that a harvard professor wrote saying

that that is the case. if you have an intelligence service that is capable of the goldeniving in age of signals intelligence that is described internally in which the president said that surveillance is collecting as to say thatible, bulk collection is not surveillance, bulk collection is not spying until they look at it or make use of it. , the tapes and the phone records. lots of the review groups did not have the scope to consider. the situations for reporters under these national security frameworks. you have all the information in these big buckets. the laws that interpret to mean that, talking to a reporter is espionage. counterintelligence,

counterespionage is a valid foreign intelligence purpose as far as the nsa is concerned. the investigation is potentially over before it starts. they have all the records of almost every reporter communication to almost every source. extraordinary precautions to limit that that are very hard to take and hardly anyone tries to take. they can be a reasonable or articulable suspicion standard when it comes to whether the records of a reporter are going to be relative -- relevant to eight cap or intelligence avestigation -- to counterintelligence investigation. so this sort of legal tangle is what we have to address if we are going to seriously talk about national security investigative journalism in the post-snowden era.

up on that?k >> yes. can people put your hands up for questions and we will go there. underscore the point in a different term. the technology that we have today, when you knowledge what the government has and what it can do, you do not need to subpoena a reporter anymore. there is the ability to find out any information. we should all be very concerned about that. we need whistleblowers. you can look at the number of stories in recent years, secret prisons, waterboarding, on and on, important stories that only come from classified information. if we do not have a mechanism that allows whistleblowers, our whole society is going to suffer. we cannot count on oversight by congress and the courts to adequately perform certain types of tasks. ledge thatot acknow

and have some safeguard, and hopefully one thing that will be picked up by the review proposals, are things like national security letters and court orders should be subject to the same attorney general guidelines. you do not go after reporters with those. right now, there is just a gray area. none of those national security things need to go through the normal checklist. to take questions. somebody has a microphone over there.d then over let's start here. ok. and then the back. if anyone has a microphone, can you ask a question? >> hi. my name is daniel. i am from journalism -- i am from germany as a journalism student.

the document in the wiki case and the snowden case were both activist. the documents are not in hold at the guardian. at least that is what i heard. what does it mean for this whole insecurity about investigations into leaks? how much did you have control over the situation? >> that is a great question. it is one of the things that we were having conversations about in the u.k. for quite a lot of last year. we were holding some of the documents in the guardian u.k. office. and the documents are held in other places, which i am not going to go into on this panel. securely in the new york times office. one of the problems with the , andgovernment approach

this is bitterly ironic to me when we have a conversation u.k. the context in the saying that we could not report a story without america. we would not have gotten this story if we were the guardian u.s. edition and we could not continue reporting it unless we were the guardian u.s. edition. realize to suddenly that we are driven out -- but to address your point, once the u.k. government tried to remove the guardian from the equation, we spent some time saying to them, do you not member what happened to wikileaks? once you remove the news organization with the 200-year tradition, history, values, concerned about public interest, the fine-grained judgment, if you remove them, the information will find its way out in a way that you cannot engage with,

that we -- we have talked to administrations and agencies into confidence on every single story we have done. we have engaged with them and ask them questions, talk about material we intend to publish and listened to their concerns. we do not do everything they knowof course, and we earnestly together, in partnership, the idea that by restraining us, we could be the subject of a legal order and they could somehow contain the problem. you only make it worse. at one point, we were saying -- we were best friends in this endeavor. >> in the back and then down here. >> i have two questions and i guess mostly for jill and janine. the first one for janine is could you talk about how the discussion in britain has been

versus the discussion in the u.s.? it seems to have been a very different discussion in the u.k. and the kind of collaboration that you have with other media organizations on the story, certainly that collaboration has not taken place in the u.k.? >> it is impossible to describe the rest of the british media. the u.s. media, from the beginning, has been brilliant. >> some of them thought you were traders though. >> momentarily on fox news, but they have come around. [laughter] , am talking about ap, reuters i cannotn journal, think of most news organizations that have not used the release of these documents to break stories and do amazing investigative reporting on these

topics and really push ahead. no news organization in the u.k. has even followed up the stories. >> not the bbc? >> no. it has been quite extraordinary. i suppose the regulatory environment, they have been refusing to rule out prosecuting guardian journalists for some months now. we know of the detention of david maranda. the guardian has been funding the legal actions to rule outside the bounds of the legal legislation. frankly, u.k. law is so widely drawn, it is almost impossible to overstep the oversight regime. and the security agency you haveer is where not proved any wrongdoing. it would be impossible to prove wrongdoing against the u.k. laws. there is very little oversight.

guardian staff, as far as we know, still being investigated. >> conrad martin with the fund for constitutional government. i want to go to the term you used, edward snowden's. prescience -- edward snowden's eerie prescience. i would say it was more an informed and healthy paranoia. case, where they went after him under the espionage act, he had taken documents to the house of intelligence committee. those documents were turned over. diane rourke got the documents. at the house of intelligence committees office in going after that data. the healthy paranoia that is to and- my question goes you mentioned the whistleblowers, where are the reforms?

the espionage act does not work and has not worked. it has been overly broad. actwhistleblower protection that should have been extended to contractors was not extended to contractors. the recommendations coming forward are coming forward about the metadata. third-party people handling them. how weerlying systems of are going to approach this in the future, and it will happen addressed.ot being when these things have come out before, what happened was you had a frank church that came forward with a new regulatory structure on how these things are going to be handled. congress has been completely silent. >> well, not completely silent. you saw senator wyden in the interchange with mr. clapper this week being vocal. -- i agree with

, butof what you just said what is tremendously unhelpful, , think, is to have statements as in the hearing the other day, saying that snowden's disclosures have done great harm to the national security without any kind of specific information that helps the public, let alone journalists, evaluate the truth of that statement. it is just, to me, troubling. it reminds me -- you know, history is often a guide in these situations. during the pentagon papers case, the solicitor general erwin the passionate argument that the disclosure of the pentagon papers was very harmful to the national security .

a few years later, after he left harme, he was asked what to the national security did the publication of the pentagon papers caused? he admitted none. in this case, none of us know how to evaluate the truth of what mr. clapper said the other day. but the lack of specific information, i think, is harmful to the public ability to figure out where the truth in this situation lies. >> we have a question at the back. i know we are a little over time. we are going to wrap up in a bit. nathaniel blumberg and carl bernstein pointed out the ways in which the media collaborate with the government. and cooperate in the suppression of stories. this is thenment -- two editors. if the government asks you to suppress a story because of

national security, do you ask them for proof? what does it take to make you line,he line -- toe the which happens so often. for instance, in the lead up to the iraq war, the coverage of 9/11, the way that robert kennedy junior said that his family did not necessarily endorsed the warring commission -- warren commission. that was not necessarily covered. >> i think what janine was saying a few minutes ago about her efforts to make the case to the british government, we are your best friends. we are a responsible filter for theuating the importance of information which should be disclosed, perhaps even which should not be disclosed. timesk that the new york and other news organizations

play a very important role in .rying it is difficult. as an editor, there is no set rentals or formula that i can follow in terms of when the government says, if you publish this, it is going to harm the national security. but when the government does make that case -- >> which it did with the original -- >> of course. we take those request very seriously. we, in general, hit the brakes a bit in order to give consideration and give the government ample opportunity to persuade us that such is the case. >> to play devil's advocate, a fact that everybody was so shocked at what edward snowden revealed, wasn't that kind of a failure of the press in the same way that holding the government

to account over iraq was a failure of the press? the fact that a whistleblower with whate forward has been available to so many people. has american media really been asleep? it has beenthink asleep anymore that -- again, i keep invoking the pentagon papers. ellsberg, whoil was the principal whistleblower of the same ilk as some of the more recent cases, basically, it took him to expose that the johnson administration had given a complete false history of the vietnam war. >> i think your question is tout the duty on the press respond to a whistleblower. somebody who is brave enough to leak information and bring it to , then ouranization

absolute duty is to publish it and to do the best job we can. i think that was what edward snowden had mine. that was his absolute primary consideration. he wanted it out with responsibly and carefully. he did not want it all over the internet, but he wanted it published. we take that very seriously. i am going to step a little outside of the review group here and try to complicate things a bit. john stuart mill min, a great , said been somewhat like a one eyed man who was blind in one eye and could see further, but he did not have the perspective. some elements of the intelligence committee have been like that. they can see great on one dimension, but they do not have the perspective. i think there is a risk in thinking about leakers that we

are blinding ourselves in one eye. i think we should just say that there is no one on the review group who would describe edward snowden as a whistleblower. focus.e civil liberties we did not discuss him, but that is just a fact. whatever you think of that particular person or any particular person, the topic is after snowden. to leak classified material, that is very, gated from a government -- that is very complicated from a government standpoint, how to handle that. prosecution is a very severe act. classified,mally that is presumptively grave. that might not be the right view. jill suggesting that the classification is not sufficient, it would have to also be a great thing to do. we call on our report for

lot moreication, a transparency, and we are committed to that. thinking about particular issues , i think it is quite important to have -- not to be like been some -- bensom. it is, gated on both sides. lex very quickly, a question and then we will really have to finish. thanks for a great panel. a question that i have -- it seems here that we will have a big controversy over the next months and years. the counterpoint to the government looking at all of our data is the public opinion, well, i am not doing anything wrong, so what does it matter if the government is gathering data if they are going to do something good with it? do you think the debate will or withinn legal ways an elite public policy circle or

does public opinion matter? journalists have done a good job explaining to the public what are some of the obligations of privacy and metadata and things like this in collected for members of the general public over the next months and years as the debate plays out? >> that is a great question. >> well, i hope so. i do think that the fact that we are having a national debate about these issues and i do think it is very important for that debate, to call out the rights and contributions of journalists as a report does, that is indispensable to a free society. the fact that there are surprising coalitions encouraging, we do not have the simple splits big -- between republicans and democrats. ,he does give an opportunity maybe a window for reforms that will have more stable foundations.

>> i would just say it is a great question and i am humble enough to believe that probably , very,ism could indeed gated issues, do a better job of explaining all of this to the public. in. would say eight months we are still trying to explain in better ways to the public what this means, what potential abuses are. the opinion polls show that the public is -- has gone from a , i do not care, into a position of, i probably really do care. >> the latest poll said something like 71% of people said they are concerned about the collection of data just by private corporations, let alone governments to -- let alone governments.

the percentage of people on firefox saying don't track meet is more than double in the last six months. i think people are concerned. one of the problems is that people do not understand fully the implications of it. i was talking about the need for confidential communications in a lot of ways. the but it will affect information you learn, what you know about your government. -- i think one of the things the question raised earlier about the church commission, one of the things that is unfortunate right now is that we have not had anyone willing to take up the cudgel and say, before we decide -- before we decide to go, we needed know what is going on. we only know little bit -- little bits and pieces. it is never going to come out unless someone says we need to come clean. and we can in ways that are not going to damage our security in a comprehensive way so that we can assess this. no one is calling for this rht