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 PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

 

 Public Hearing Regarding the 

 Surveillance Program Operated Pursuant to 

 Section 702 of the Foreign Intelligence 

 Surveillance Act

 

 March 19, 2014

 

 

The public hearing was held at the Renaissance 

Mayflower Hotel, 1127 Connecticut Avenue NW, 

Washington, D.C. 20036 commencing at 9:00 a.m.

 

 

 

Reported by: Lynne Livingston
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1 BOARD MEMBERS

2

3 David Medine, Chairman

4 Rachel Brand

5 Patricia Wald

6 James Dempsey

7 Elizabeth Collins Cook

8

9 PANEL I

10 Government Perspective on Section 702 Foreign 

11 Intelligence Surveillance Act

12 

13 James A. Baker, General Counsel, Federal Bureau of 

14 Investigations

15 Rajesh De, General Counsel, National Security 

16 Agency

17 Robert Litt, General Counsel, Office of the 

18 Director of National Intelligence

19 Brad Wiegmann, Deputy Assistant Attorney General, 

20 National Security Division, Department of Justice

21

22 
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1 PANEL II

2 Legal Issues with 702 

3 Foreign Intelligence Surveillance Act

4 Laura Donohue, Professor of Law, Georgetown 

5 University Law School

6 Jameel Jaffer, Deputy Legal Director, American 

7 Civil Liberties Union

8 Julian Ku, Professor of Law, Hofstra University

9 Rachel Levinson-Waldman, Counsel, Liberty and 

10 National Security Program, Brennan Center for 

11 Justice

12

13 PANEL III

14 Transnational and Policy Issues

15 John Bellinger, Partner, Arnold and Porter

16 Dean C. Garfield, President and CEO, Information 

17 Technology Industry Council

18 Laura Pitter, Senior National Security Researcher, 

19 Human Rights Watch

20 Ulrich Sieber, Director, Max Planck Institute for

21 Foreign and International Criminal Law, Germany

22 Christopher Wolf, Partner, Hogan Lovells
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1 PROCEEDINGS

2 MR. MEDINE: Good morning. Welcome to 

3 the Privacy and Civil Liberties Oversight Board's 

4 hearing on the 702 Program. 

5 I'm David Medine, PCLOB's chairman. 

6 It's 9:05 a.m. on March 19th, 2014 and we are in 

7 the grand ballroom of the Mayflower Hotel located 

8 at 1127 Connecticut Avenue, NW, Washington, D.C.

9 This hearing was announced in the 

10 Federal Register on March 10th, 2014. As 

11 chairman, I will be the presiding officer.

12 All five Board members are present and 

13 there is a quorum. The Board members are Rachel 

14 Brand, Elisebeth Collins Cook, James Dempsey, and 

15 Patricia Wald.

16 I will now call the hearing to order. 

17 All in favor of opening the hearing please say 

18 aye.

19 (Aye)

20 MR. MEDINE: Upon receiving unanimous 

21 consent to proceed, we will now proceed. 

22 I want to thank the many panelists who 
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1 will be participating in today's hearing for 

2 agreeing to share their views with the Board. 

3 I also wanted to thank the Board's 

4 staff, Sharon Bradford Franklin, Sue Reingold, 

5 Peter Winn, Diane Janosek, Brian Frazelle, and 

6 Simone Awang for their efforts in making this 

7 event possible.

8 Last year PCLOB agreed to provide the 

9 President and Congress a public report on two 

10 federal counterterrorism programs, the Section 215 

11 program under the USA PATRIOT Act and the 702 

12 program under the FISA Amendments Act. The report 

13 on the 215 program was issued on January 23rd, 

14 2014. 

15 Our focus today will be on the Section 

16 702 program under the FISA Amendments Act. The 

17 purpose of this hearing is to foster a public 

18 discussion of legal, constitutional, and policy 

19 issues relating to this program.

20 A few ground rules for today, we expect 

21 that the discussion will be based on unclassified 

22 or declassified information, however some of the 
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1 discussion will inevitably touch on leaked 

2 classified documents or media reports of 

3 classified information.

4 In order to promote a robust discussion 

5 speakers may choose to reference these documents 

6 or information, but they should keep in mind that 

7 in some cases they remain classified. Therefore, 

8 while discussing them, neither the Board members 

9 nor speakers in a position to do so will confirm 

10 the validity of the documents or information.

11 There will be three panels today. The 

12 first will consist of government officials whose 

13 agencies have varying degrees of responsibility 

14 for the surveillance programs that will be the 

15 subject of our report. 

16 The second panel with consist of 

17 academics and advocates who will focus on legal 

18 issues, including statutory and constitutional 

19 issues. After the first two panels we will be 

20 taking a lunch break. 

21 The final panel will consist of a mix 

22 of academics, advocates, and private sector 
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1 representatives and will focus on transnational 

2 and policy issues.

3 Board members will each pose questions 

4 during each panel with questions in rounds for 

5 each Board member. Panelists are urged to keep 

6 their responses brief and to permit the greatest 

7 exchange of views.

8 The program is being recorded and a 

9 transcript will be posted on PCLOB.gov. Written 

10 comments from members of the public are welcome 

11 and may be submitted online at regulations.gov or 

12 by mail until March 28th. 

13 Today's hearing will focus on the 

14 government's collection of foreign intelligence 

15 information from electronic communication service 

16 providers under court supervision pursuant to 

17 Section 702 of the Foreign Intelligence 

18 Surveillance Act. 

19 Information is obtained with FISA court 

20 approval based on written directives from the 

21 Attorney General and the Director of National 

22 Intelligence to acquire foreign intelligence 
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1 information. This law permits the government to 

2 target non-U.S. persons, someone who is not a 

3 citizen or a permanent resident alien, located 

4 outside the United States for foreign intelligence 

5 purposes without obtaining a specific warrant for 

6 each target.

7 We will now turn to our first panel, 

8 and I understand that Bob Litt will be making an 

9 opening statement for the panel.

10 MR. LITT: Thank you, and thank you for 

11 the opportunity to appear on behalf of the whole 

12 group here and talk about Section 702. 

13 I would like to give a brief overview 

14 of Section 702 to set the stage, and we'll be glad 

15 to fill out some of the points I make here in 

16 response to questions. 

17 Section 702, as you noted, enables us 

18 to collect intelligence against foreign targets 

19 who are outside of the United States while 

20 robustly protecting privacy rights. 

21 Under Section 702 the FISA court 

22 approves annual certifications submitted by the 
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1 Attorney General and the Director of National 

2 Intelligence that identify categories of foreign 

3 intelligence that may be collected. We then 

4 target selectors such as telephone numbers or 

5 email addresses that will produce foreign 

6 intelligence falling within the scope of the 

7 certifications. 

8 The FISA court also has to review and 

9 approve targeting and minimization procedures. 

10 The targeting procedures ensure that we target 

11 only non-U.S. persons who are reasonably believed 

12 to be outside of the United States, that we do not 

13 intentionally intercept totally domestic 

14 communications, and that we do not target any 

15 person outside of the United States as a 

16 subterfuge to actually target someone inside the 

17 U.S. 

18 The minimization procedures ensure that 

19 consistent with foreign intelligence needs, we 

20 minimize the acquisition and retention of 

21 non-public information available about U.S. 

22 persons and that we prohibit the dissemination of 
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1 such information. 

2 I want to make a couple of important 

3 overview points about Section 702. First, there 

4 is either a misconception or a mischaracterization 

5 commonly repeated that Section 702 is a form of 

6 bulk collection. It is not bulk collection. It 

7 is targeted collection based on selectors such as 

8 telephone numbers or email addresses where there's 

9 reason to believe that the selector is relevant to 

10 a foreign intelligence purpose. 

11 I just want to repeat that Section 702 

12 is not a bulk collection program.

13 Second, from a legal point of view 

14 persons who are not U.S. persons and who are 

15 outside of the United States do not have rights 

16 under the Fourth Amendment and so the Constitution 

17 doesn't require individualized warrants to target 

18 them.

19 In fact, the type of intelligence that 

20 is covered by Section 702 targeting foreigners 

21 outside of the United States has historically been 

22 viewed as part of the President's inherent 
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1 constitutional authority and I'm not aware of any 

2 other country that brings this kind of collection 

3 under this sort of judicial process. 

4 Third, collection under 702 is subject 

5 to extensive oversight by all three branches of 

6 government. We can explain the oversight in more 

7 detail later, but it includes extensive review of 

8 collection activities under Section 702 by 

9 inspectors general, by the Department of Justice, 

10 and the Office of the Director of National 

11 Intelligence. It includes reporting of all 

12 compliance incidents to the Foreign Intelligence 

13 Surveillance Court, and it includes periodic 

14 reports both to Congress and to the court. 

15 As the documents that we've 

16 declassified and released make clear, the Foreign 

17 Intelligence Surveillance Court carefully 

18 scrutinizes our activities under this section. 

19 And while there have been a number of compliance 

20 incidents over the years, the court has never 

21 found any intentional efforts to violate the 

22 requirements of Section 702. 
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1 Fourth, the fact that the 

2 communications of U.S. persons may be incidentally 

3 intercepted when we target valid foreign 

4 intelligence targets is neither unexpected nor 

5 unique to Section 702 collection. 

6 Both the statute itself with its 

7 required minimization procedures and the 

8 legislative history make completely clear that 

9 Congress knew full well when it passed Section 702 

10 that incidental collection of communications of 

11 U.S. persons would occur when they're in 

12 communication with valid foreign targets.

13 And it's important to note that this 

14 kind of incidental collection occurs all the time 

15 in other contexts. When we conduct a criminal 

16 wiretap or a wiretap pursuant to Title I of FISA 

17 we will likely intercept communications of persons 

18 who are not targets. When we seize someone's 

19 computer we may find communications with persons 

20 who are not targets. 

21 The minimization rules under Section 

22 702 which the FISA court approves is consistent 
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1 with both the statute and the Fourth Amendment are 

2 designed to protect the privacy of persons whose 

3 communications are incidentally collected, while 

4 still allowing the use of information that is 

5 lawfully collected for valid foreign intelligence 

6 and law enforcement purposes.

7 Finally, I want to close by just 

8 emphasizing that Section 702 is one of the most 

9 valuable collection tools that we have. Many of 

10 the specific achievements of Section 702 have to 

11 remain classified so that we aren't revealing 

12 exactly who we're targeting and what we're 

13 collecting. But it is one of our most important 

14 sources of information, not only about terrorism 

15 but about a wide variety of other threats to our 

16 nation.

17 And unless one of my colleagues has 

18 something to add, I think we're ready to address 

19 your questions.

20 MR. MEDINE: Great, thank you very much 

21 for that statement. 

22 I wanted to start off and pick up with 
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1 your discussion of incidental collection, and 

2 again just to make clear that under this program, 

3 even though the target may be a non-U.S. person 

4 there will be times when the conversations, either 

5 by email or telephone, the person on the other end 

6 will be a U.S. person. 

7 And so my question to the panel is 

8 whether because you're gathering communications of 

9 U.S. persons if that implicates Fourth Amendment 

10 concerns? And if so, do you believe there's a 

11 foreign intelligence exception to the Fourth 

12 Amendment? And if not, how is warrantless 

13 collection of information of U.S. persons 

14 permissible? 

15 And then to follow up on Mr. Litt's 

16 comment analogizing this to a traditional wiretap, 

17 is there a distinction here where on a traditional 

18 wiretap the court has, there's been a judicial 

19 determination with particularity of a particular 

20 collection, whereas here there's only broad 

21 programmatic court approval and not approval of 

22 the specific collection? 
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1 So I guess broadly speaking, can you 

2 address the Fourth Amendment concerns regarding 

3 incidental collection?

4 MR. WIEGMANN: Sure, I'll take that. 

5 So this is, as Bob said, collection that is 

6 targeting non-U.S. persons overseas who don't 

7 enjoy Fourth Amendment rights under controlling 

8 Supreme Court precedent. So that affects the 

9 Fourth Amendment analysis. 

10 That's not to say that U.S. persons 

11 whose information is or whose communications are 

12 collected incidentally doesn't trigger a Fourth 

13 Amendment review. It does. Those people still 

14 have Fourth Amendment rights, but what the courts 

15 have said is that, what the FISA court has said is 

16 that the minimization procedures that are in place 

17 render that collection reasonable from a Fourth 

18 Amendment perspective.

19 We think there's an exception to the 

20 warrant requirement. Before FISA was enacted in 

21 the 1970s a number of courts held in a number of 

22 different circuits that there is a foreign 
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1 intelligence exception to the warrant requirement 

2 under the Fourth Amendment, in light of the 

3 special needs of the government to collect foreign 

4 intelligence, weighed against the privacy 

5 interests of U.S. persons concluded that you don't 

6 need a warrant when you're engaged in foreign 

7 intelligence collection. 

8 So then the only remaining question is, 

9 is it reasonable under the Fourth Amendment to 

10 collect information on U.S. persons incidentally 

11 when you're targeting non-U.S. persons. And what 

12 the FISA court has held is that it is reasonable 

13 in light of the minimization targeting procedures 

14 that we have in place. So I don't know if that 

15 answers your question, but. 

16 So the way you look at it is the 

17 warrant requirements not applicable to foreign 

18 intelligence collection still have a 

19 reasonableness requirement with respect to 

20 incidentally collected U.S. persons, and that in 

21 fact, it is reasonable in light of the procedures 

22 that we have that are designed to ensure that we 
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1 are targeting only non-U.S. persons. 

2 MR. MEDINE: And could you address why 

3 the minimization procedures make it a reasonable 

4 form of collection under the Fourth Amendment?

5 MR. WIEGMANN: Yes, so the minimization 

6 procedures address, and the targeting procedures 

7 address the acquisition, retention, and 

8 dissemination of U.S. person information. 

9 And so those procedures all are 

10 designed to protect those U.S. persons whose 

11 information might be incidentally collected. 

12 So for example, you can only 

13 disseminate information about a U.S. person if it 

14 is foreign intelligence, or necessary to 

15 understand foreign intelligence, or is evidence of 

16 a crime. 

17 You have retention rules. I believe in 

18 some cases, for NSA for example, you have a five 

19 year retention limit on how long the information 

20 can be retained. And so these are procedures that 

21 the courts have found protect U.S. privacy and 

22 make the collection reasonable for Fourth 
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1 Amendment purposes.

2 MR. MEDINE: And under the minimization 

3 procedures I understand that the agency, the NSA, 

4 FBI, the CIA have their own minimization 

5 procedures and they're not the same with each 

6 other?

7 MR. WIEGMANN: That's right.

8 MR. MEDINE: Can you address why that 

9 shouldn't be a concern that this information is 

10 not being subjected to the same minimization 

11 standards?

12 MR. WIEGMANN: So each of them have 

13 their own minimization procedures based on their 

14 unique mission, and the court reviews each of 

15 those for CIA, FBI, NSA, and it's found them all 

16 reasonable for each different agency. They're 

17 slightly different based on the operational needs, 

18 but they're similar.

19 MR. MEDINE: Would it make more sense 

20 then if the same set of minimization procedures 

21 apply across the board for this kind of 

22 information?
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1 MR. WIEGMANN: I don't think. Again, 

2 just to contrast, for example, FBI and NSA that 

3 are using information in different ways. The FBI 

4 has a little more latitude with respect to U.S. 

5 person information in terms of criminal activity 

6 and evidence of a crime than NSA, which doesn't 

7 have that law enforcement mission. So I think it 

8 is important to have some differences between the 

9 agencies in terms of how they handle the 

10 information.

11 MR. MEDINE: And is it the practice 

12 that all information that's collected under 702 is 

13 subject to the minimization procedures? 

14 Some questions I think have been raised 

15 in some of the comments that were submitted as to 

16 whether address books or other information would 

17 be considered communications that would be subject 

18 to minimization, or is it the approach that all 

19 information collected under 702 is subject to 

20 minimization?

21 MR. WIEGMANN: All U.S. person 

22 information is subject to minimization procedures.
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1 MR. MEDINE: I think my time is up.

2 MS. BRAND: First of all, thanks to all 

3 of you for being here this morning. We appreciate 

4 your taking the time and making yourselves 

5 available. 

6 I want to continue on the Fourth 

7 Amendment discussion. Could one of you explain 

8 the process both inside the executive branch and 

9 then with the court of conducting the Fourth 

10 Amendment analysis and seeking the court's 

11 approval of the Fourth Amendment analysis and what 

12 kinds of opinions on the Fourth Amendment you've 

13 had from the court, to the extent that you can 

14 talk about it. Help us to understand how that 

15 works.

16 MR. WIEGMANN: So, you know, the FISA 

17 court operates a little bit differently than a 

18 regular court in the sense that it's ex parte, 

19 but. So that means only the government is there. 

20 There's not a party on the other side. 

21 But other than that, we are briefing 

22 the legal issues in much the same way as we would 
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1 in a regular proceeding where there is a party on 

2 the other side. So we have an obligation to 

3 persuade the court that the collection under 702 

4 is lawful, that it complies with the Fourth 

5 Amendment, and as I just explained to the chair, 

6 that minimization procedures comply with the 

7 Fourth Amendment. 

8 So we would brief that issue explaining 

9 the Fourth Amendment procedures, and the court 

10 issues opinions and has issued opinions going 

11 through the Fourth Amendment analysis and finding 

12 that 702 collection, including the minimization 

13 targeting procedures meets the Fourth Amendment 

14 standards. So it's a full-up kind of regular 

15 legal briefing on that.

16 MR. LITT: And if I could just add 

17 something to that, it is typical in matters that 

18 involve the collection of evidence for these 

19 proceedings to be conducted ex parte. Wiretap or 

20 search warrant applications are also all done ex 

21 parte, even if they happen to present significant 

22 legal issues. So this is nothing novel in terms 
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1 of the approach that's taken there.

2 MR. DE: And if I could have one point. 

3 So in addition to what Brad was articulating, the 

4 court reviews this at least annually, the Fourth 

5 Amendment analysis. 

6 As you all know, the 702 process 

7 requires annual certification. As part of that 

8 certification process every year the minimization 

9 and targeting procedures for the various agencies 

10 are submitted to the FISC, which by statute has to 

11 conduct a Fourth Amendment analysis on those 

12 procedures as part of that annual review process.

13 MS. BRAND: So the Fourth Amendment 

14 analysis is once a year of the program overall? 

15 MR. DE: Well, the court has consistent 

16 jurisdiction over the program all year. The point 

17 I was making is that as part of the annual 

18 certification process, by statute the court is 

19 required to do a Fourth Amendment analysis of the 

20 annual, of the procedures that are submitted 

21 annually. 

22 MR. BAKER: It gets evaluated at least 
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1 once a year.

2 MS. BRAND: Can you elaborate on that? 

3 What would there be in addition to that once a 

4 year analysis?

5 MR. DE: There could be a variety of 

6 factors. There could be a need to change 

7 procedures in the year, so that would prompt 

8 another analysis. I don't believe we've done that 

9 but that could be one circumstance.

10 There could be a variety of compliance 

11 matters that raise particular concerns to the 

12 court, in which case the court may want to do a 

13 review off-cycle. 

14 So I think we wouldn't presume and say 

15 it only had to be once a year, but at a minimum by 

16 statute it needs to be once a year.

17 MS. BRAND: Okay. Bob, you talked 

18 about 702 not being bulk collection. I'd like to 

19 delve into that a little bit more, it's not bulk 

20 collection. You talked about selectors. We need 

21 to elaborate on that a little bit, I think. What 

22 is it? It's not bulk you say, but what is it?
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1 MR. LITT: Sure. Well, I think it's 

2 probably helpful to talk about what bulk 

3 collection is first of all. 

4 And if you look at the President's 

5 policy directive there's a definition. I don't 

6 have it in front of me, but it's essentially bulk 

7 collection is collection of communications without 

8 relying on some sort of discriminant to ensure 

9 that you're targeting particular collection. 

10 It's sort of viewed sort of more 

11 informally, it's getting a whole bunch of 

12 communications, hanging onto them and then 

13 figuring out later what you want. 

14 This is not that. This is a situation 

15 where we figure out what we want and we get that 

16 specifically. And so that's why it is targeted 

17 collection rather than bulk collection. Is that 

18 helpful?

19 MS. BRAND: But I'd like to get a 

20 little bit more into what is it that you're 

21 getting. So you have a selector, I mean.

22 MR. LITT: Sure. So Raj probably can 
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1 talk to this a little better than I can.

2 MR. DE: So if I could, I'd step back 

3 and just talk about the different types of 

4 collection under Section 702, which I think is a 

5 necessary predicate to understand how collection 

6 occurs.

7 So there's two types of collection 

8 under Section 702. Both are targeted, as Bob was 

9 saying, which means they are both selector-based, 

10 and I'll get into some more detail about what that 

11 means. Selectors are things like phone numbers 

12 and email addresses. 

13 Both are affected by compulsory legal 

14 process, both types are conducted with the 

15 assistance of electronic communication service 

16 providers, and both types of collection under 702 

17 are subject to the same statutory standards, so 

18 just as a predicate.

19 The first type is what's now been come 

20 to be known as PRISM collection, so just using 

21 that shorthand for a moment. And under this type 

22 of collection, communications to or from specific 
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1 selectors, again, things like phone numbers or 

2 emails, are provided with the assistance of ISPs 

3 pursuant to directives.

4 The second type of collection is the 

5 shorthand referred to as upstream collection. 

6 Upstream collection refers to collection from the, 

7 for lack of a better phrase, Internet backbone 

8 rather than Internet service providers. 

9 It is also however selector-based, i.e. 

10 based on particular phone numbers or emails, 

11 things like phone numbers or emails. This is 

12 collection to, from, or about selectors, the same 

13 selectors that are used in PRISM selection. This 

14 is not collection based on key words, for example. 

15 This type of collection upstream fills 

16 a particular gap of allowing us to collect 

17 communications that are not available under PRISM 

18 collection. 

19 But given the unique nature of upstream 

20 collection there are different minimization 

21 procedures that apply, to get to the chair's 

22 question earlier. 
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1 The reason procedures aren't always the 

2 same for different types of collection, as Brad 

3 articulated, is that there are both different 

4 mission interests and different privacy interests 

5 at stake.

6 MS. BRAND: I see my time is up, so.

7 MS. COLLINS COOK: Thank you for coming 

8 here this morning. We really appreciate your time 

9 on this and happy to be a part of this dialogue 

10 here. 

11 I wanted to follow up on a couple of 

12 points that have already been raised, but first, 

13 we've talked about the Fourth Amendment 

14 implications of the collection. We've also talked 

15 about the fact that, or it is known that the 

16 information that's collected can subsequently be 

17 queried. 

18 Do you consider that subsequent query a 

19 search for the purposes of the Fourth Amendment? 

20 And if not, why not? 

21 MR. WIEGMANN: No, I would say that the 

22 search occurs at the time that the collection 
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1 occurs. So when the information, as Raj just 

2 explained, from a particular selector is acquired 

3 by NSA, then that's the time at which the search 

4 occurs. 

5 Once you've lawfully collected that 

6 information, subsequently querying that 

7 information isn't a search under the Fourth 

8 Amendment, it's information already in the 

9 government's custody. And so I don't think there 

10 are any other contexts really in general in which 

11 a warrant is required to search information 

12 already in your custody.

13 MS. COLLINS COOK: Following up on 

14 that, I think some have suggested that whether as 

15 a matter of Fourth Amendment necessity or as a 

16 policy, as a matter of policy that you should seek 

17 court approval before doing a query of a U.S. 

18 person identifier. 

19 Can you talk a little bit about what 

20 the operational impact of such a requirement might 

21 be? 

22 MR. WIEGMANN: Sure, and this is 
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1 something I guess some of my colleagues could talk 

2 about the operational impact. But as I said, in 

3 general with other types of collection, whether 

4 it's collection under Title I of FISA, which is 

5 your regular collection under which you've gone to 

6 the FISA court and already gotten approval to 

7 target a particular agent of a foreign power in 

8 the United States, or moving over to the criminal 

9 side if it's information collected under the 

10 Wiretap Act, commonly known as Title III, under 

11 which you're conducting surveillance, let's say of 

12 an organized crime figure or in a drug case of an 

13 individual, in all of these contexts we collect 

14 information. 

15 We don't, once we've collected it, 

16 we've gotten the necessary court approvals to 

17 obtain the information, we don't then have to go 

18 back to court to query the same information that 

19 we've already collected lawfully a second time to 

20 say is it okay to look at it. We've already 

21 gotten the conclusion that it's legal to collect 

22 it. 
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1 And if you have to go back to court 

2 every time you look at the information in your 

3 custody you can imagine that that would be quite 

4 burdensome and difficult, to have to go back every 

5 time to look at information that's already in your 

6 custody. But I can let the FBI and NSA address it 

7 a little bit.

8 MR. DE: If I could add a couple of 

9 points and then I'll turn it to my colleague from 

10 the bureau. 

11 Just one basic point, we've been 

12 talking about U.S. person queries and I just 

13 articulated two types of collection. Just to 

14 clarify, U.S. person queries are not allowed under 

15 what I described as upstream collection. So as I 

16 articulated, there may be different reasons to 

17 have tailored procedures, minimization procedures 

18 for different types of collections. So such 

19 queries are not allowed for upstream.

20 Adding to Brad's point about lawfully 

21 collected information, so once information is 

22 collected pursuant to 702, the government can and 
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1 often will review what it needs to in that 

2 information. 

3 Querying that lawfully collected 

4 information, one way to think about that is a way 

5 to more efficiently review that which the 

6 government already has in its possession and can 

7 review all of. 

8 And so to get to your question about 

9 policy limits on querying that data, one also 

10 needs to understand that that information is at 

11 the government's disposal to review in the first 

12 instance, and querying it is just a way to 

13 organize it.

14 Secondly -- thirdly, if I could add 

15 there are standards in place for querying that 

16 information, at least for NSA. Such a query, and 

17 we're talking about PRISM collection, must be 

18 reasonably likely to return foreign intelligence 

19 information. 

20 And then finally, in order to 

21 disseminate any U.S. person information that may 

22 result from such a query it has to be necessary to 
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1 understand the foreign intelligence or evidence of 

2 a crime is apparent from our publicly available 

3 procedures. 

4 But on the operational element, let me 

5 turn that to Jim.

6 MR. BAKER: So just at a high level I 

7 think let me make a couple of comments. So first 

8 I think you have to think about the fact that 

9 you're creating a new and special category of 

10 information, as Brad was saying, right. So this 

11 would be information that had already been 

12 acquired pursuant to lawful process. 

13 We normally will query that. We'll 

14 look through that. When something comes in, we'll 

15 look through our collected materials to try to 

16 find -- a threat comes in, let's say for example. 

17 We look at our collected materials, we try to 

18 figure out what we have, and then, you know, move 

19 forward as expeditiously as possible. 

20 So you would be creating a new category 

21 of information that sort of would be off-limits 

22 from the normal type of collection that we do. 
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1 And I don't pretend to fully understand all the 

2 implications that that would have.

3 But a couple that come to mind, first 

4 of all, obviously would be delay. So you would 

5 have some additional process that you would have 

6 to go through, and I'm sure there would be some 

7 kind of emergency carve out and so on, but you'd 

8 have to think about and factor in the reality that 

9 you would be introducing delay into the system.

10 You would also then as a result 

11 potentially create a gap. There are several types 

12 of gaps, I guess. But you would have, there would 

13 be a disinclination for people, because either 

14 they don't have the facts, or it's just too hard 

15 or whatever, to actually go and pursue that extra 

16 pot of information. 

17 So there might be some type of 

18 connection between what we can look at normally, 

19 this material, and then other types of material. 

20 And having that type of gap might, you know, 

21 actually create a blind spot for us in terms of 

22 intelligence collection. 
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1 You'd also have to think about, I 

2 think, the technical complexity of what it is that 

3 you're suggesting. So this is going to have to be 

4 segregated in some way, treated differently. And 

5 we'd just have to think about that. That could 

6 lead to, you know, training issues, technical 

7 costs, things like that. 

8 So it's, you just have to actually do 

9 it in a way that would be different than from 

10 other types of data that we handle, so that's sort 

11 of at a high level some of the things that come to 

12 mind.

13 MR. LITT: Beth, can I add one brief 

14 point to this which is that over the last decade, 

15 decade and a half, there have been a number of 

16 commissions that have been set up to investigate 

17 after a variety of terrorism incidents, 9/11, Fort 

18 Hood, the underwear bomber and so on. 

19 Consistently every one of those commissions has 

20 found that we need to eliminate barriers to making 

21 use of the information that's lawfully in our 

22 possession in order to better protect the nation. 
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1 And this, requiring some kind of 

2 additional process before we can query this 

3 information runs directly contrary to the 

4 recommendations of all those commissions.

5 MS. COLLINS COOK: Thank you. I see 

6 that my time is up.

7 MR. MEDINE: By the way, I should say 

8 in the excitement of getting into the questioning 

9 I never had actually a chance to introduce the 

10 panelists. And so I just wanted for the benefit 

11 of the audience, you're familiar to us, but for 

12 the benefit of the audience we have Jim Baker, 

13 who's the General Counsel of the FBI, Raj De, 

14 who's the General Counsel at NSA, Bob Litt is the 

15 General Counsel at the Director of National 

16 Intelligence, and Brad Wiegmann, who is the Deputy 

17 Assistant Attorney General at the National 

18 Security Division of the Justice Department.

19 Again, thank you all for being here.

20 MR. DEMPSEY: Thanks, and thanks to the 

21 witnesses for being here. They are very 

22 well-known to us. I think everybody should 
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1 realize that we've now spent many, many days with 

2 these gentlemen and with many, many of their 

3 colleagues at all their agencies going through 

4 this information, and delving deeply into this. 

5 And there's been a huge amount of 

6 dedication of time on the part of the agencies to 

7 make sure that we have everything that we ask for 

8 and to make sure that all of our questions are 

9 answered. And so, you know, all the Board members 

10 really appreciate the amount of time that you've 

11 dedicated to talking with us.

12 And I think it is very important here 

13 to be one hundred percent clear, and I think there 

14 has been a lot of misunderstanding about the 702 

15 program, and I think I do see issues with the 

16 program and things we're talking about, but I 

17 think it's very important to narrow the subjects 

18 of controversy, or discussion, or concern. 

19 And I'm afraid that Raj may have partly 

20 reinserted a problem here when you said that U.S. 

21 person selectors were not used for upstream 

22 collection, or for upstream searches they're not 
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1 used at all, period, at the collection stage. 

2 You were saying that U.S. person 

3 identifiers or selectors are not used to search 

4 the acquired database of communications that were 

5 otherwise acquired on a particularized basis under 

6 the upstream program, correct? 

7 MR. DE: Correct. I definitely would 

8 prefer not to introduce more ambiguities. Let me 

9 be absolutely clear, Section 702 collection of any 

10 flavor, upstream or PRISM, is only targeting 

11 non-U.S. persons reasonably believed to be located 

12 abroad. 

13 The topic I was discussing was, is in 

14 the realm of that lawfully collected targets 

15 information, once it's in the government's 

16 possession a secondary issue arises as to how one 

17 can search through that data. And the issue that 

18 we were discussing was whether those searches can 

19 be conducted using U.S. person identifiers within 

20 that lawfully data. And the answer to that 

21 question is no with respect to upstream 

22 collection.
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1 MR. DEMPSEY: And here when you're 

2 talking about search and collect and acquire, all 

3 of those terms you're using to mean in a 

4 colloquial sense when the government collects, 

5 obtains, puts into its database, acquires, you're 

6 not parsing those words for 702 purposes. There's 

7 not a distinction between the search, the 

8 collection, the acquisition, right? It's all, 

9 you're using those things all that refer to the 

10 same activity. 

11 MR. DE: There's no parsing between 

12 acquisition or collection. 

13 So there are some theories out there 

14 that when the government receives the data it 

15 doesn't count as collection or acquisition. That 

16 is incorrect. Acquisition and collection for 

17 these purposes are the same thing. 

18 But the term search is a different 

19 term. Search, as we were just discussing, means 

20 searching information that has already been 

21 lawfully acquired or collected.

22 MR. DEMPSEY: Although the first -- 
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1 okay, so now we have two meanings of search. It's 

2 so hard to be clear on this. Brad was explaining 

3 a search occurs when you first collect or acquire. 

4 That is the Fourth Amendment search.

5 MR. DE: I think he was speaking to the 

6 use of the term in the Fourth Amendment, not the 

7 use of the term for purposes of this. 

8 MR. DEMPSEY: And then querying, then 

9 there's a second use of search meaning query. So 

10 you query your database?

11 MR. DE: Correct.

12 MR. LITT: That's the term that we 

13 typically use rather than search in that context.

14 MR. DEMPSEY: Right. In that case a 

15 query is not a search for Fourth Amendment 

16 purposes. 

17 MR. LITT: Right.

18 MR. DEMPSEY: Briefly talk a little bit 

19 about this 51 percent theory. So persons 

20 reasonably believed to be outside the United 

21 States, and there's been some talk about, well, so 

22 there may have been some slide somewhere, I don't 
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1 know where this came from, but some notion that, 

2 oh, if it's a 51 percent likelihood, therefore 49 

3 percent of the time we might be wrong, that the 

4 person's not outside the United States and that's 

5 permitted under 702. Can you comment on that.

6 MR. DE: Sure. So I think the bigger 

7 picture question that that gets to how a 

8 determination is made for purposes of the statute 

9 that you are in fact targeting a non-U.S. person 

10 reasonably believed to be located abroad. 

11 So as Bob articulated, and I'm sorry 

12 for repeating this but just for clarity, the 

13 statute does not allow us to target U.S. persons, 

14 it does not allow the government to target anybody 

15 within the U.S., it does not allow for reverse 

16 targeting, it does not allow for the intentional 

17 collection of wholly domestic communications.

18 So as to how we establish a reasonable 

19 belief that the target is in fact a non-U.S. 

20 person reasonably believed to be located abroad, 

21 there is no 51 percent rule that if you are 51 

22 percent sure it is a non-U.S. person located 
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1 abroad that is sufficient. That is not the rule, 

2 and I don't honestly know where that misconception 

3 has come from. 

4 The foreignness determination, which is 

5 shorthand for referring to the determination that 

6 it is a non-U.S. person reasonably located to be 

7 abroad, is based on a totality of the 

8 circumstances. 

9 So what does that mean? That means 

10 that an analyst must take into account all 

11 available information. It means that an analyst 

12 cannot ignore any contrary information to suggest 

13 that that is not the correct status of the person. 

14 And it also means naturally that any such 

15 determination is very fact-specific to the 

16 particular facts at hand. 

17 I did a little checking and it turns 

18 out in our internal training materials, at least 

19 at NSA, we actually ask our analysts a question 

20 along the lines of, if you have four pieces of 

21 information that suggests a person is abroad and 

22 two pieces of information that suggests a person 
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1 is domestic, given that the score is four to two 

2 is that sufficient to establish foreignness? 

3 And the correct answer to that is, no, 

4 it is not sufficient because it is not a majority 

5 test. It is a totality of the circumstances test. 

6 One must take into account the strength, 

7 credibility, and import of all relevant 

8 information. 

9 But just to add on to that, to your 

10 bigger point about confidence in that 

11 determination, analysts have an affirmative 

12 obligation to periodically revisit the foreignness 

13 determination. So it is not a once and done 

14 system. 

15 Moreover, targeting determinations must 

16 be documented ex ante before any collection 

17 occurs. That documentation is reviewed, every 

18 determination is reviewed in 60 day increments by 

19 the Department of Justice and the Office of the 

20 Director of National Intelligence to determine if 

21 they agree with that determination.

22 And then finally, the targeting 
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1 procedures, as we mentioned, which account for a 

2 lot of this are reviewed annually by the Foreign 

3 Intelligence Surveillance Court and approved to be 

4 consistent with the Fourth Amendment and the 

5 statute obviously. 

6 MR. WIEGMANN: And if I could just add 

7 from the DOJ perspective, as Raj said, we reviewed 

8 all of those foreignness determinations and we 

9 found an error rate of less than .1 percent 

10 basically. So that equates to essentially less 

11 than one in a thousand cases in which we're 

12 finding that NSA is making erroneous foreignness 

13 determinations.

14 MR. MEDINE: Judge Wald.

15 MS. WALD: Thank you again. I think 

16 that the NSA has said that in some of its 

17 information that if information about U.S. persons 

18 is collected incidentally to a 702 search that was 

19 targeted on a non-U.S. person and the incidental 

20 information about U.S. persons is found not to 

21 have any foreign intelligence value it will be, 

22 quote, purged. 
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1 Can you explain exactly what purging 

2 means? Does that mean that it can subsequently 

3 not be used at all, or it can be subsequently used 

4 or retained for some purposes? And finally, at 

5 what point and by whom would this decision of 

6 non-intelligence value be made? There's a lot of 

7 sub-questions.

8 MR. DE: Sure. Well, let me step back 

9 for a moment. If the information is determined to 

10 not have --

11 MS. WALD: Could you just speak a tiny 

12 bit louder because I'm at the tail-end of this 

13 table.

14 MR. DE: Certainly. If information is 

15 determined to not have foreign intelligence value 

16 then it is required to be purged. 

17 What purging means is removed from NSA 

18 systems in a way that it cannot be used, period.

19 MS. WALD: For any reason at all? 

20 MR. DE: Correct. There are extensive 

21 requirements we have gone through with the Foreign 

22 Intelligence Surveillance Court to ensure to the 
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1 best extent humanly possible that NSA's technical 

2 systems can, in fact, purge data as required by 

3 both our minimization procedures and the Foreign 

4 Intelligence Surveillance Court.

5 MS. WALD: But just to pursue that a 

6 little bit, in your experience is that to purge or 

7 not to purge decision made early in the process or 

8 is it kept in there until the analyst or whoever 

9 has a chance to do some more hunting around and 

10 see whether or not maybe other things would 

11 suggest that that does have intelligence value?

12 In other words, if there's such a 

13 concern about U.S., as there is in outside groups, 

14 about U.S. incidental information that's in the 

15 files and later there's a possibility of it being 

16 queried, I wonder how extensive this purging 

17 operation really is? 

18 MR. DE: To purge or not to purge, that 

19 is the question. 

20 MS. WALD: Yes.

21 MR. DE: So our procedures require that 

22 the determination about foreign intelligence value 
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1 be made as early as possible in the, what one in 

2 the technical sense calls the processing cycle. 

3 So it is not something that by default can be 

4 ignored.

5 That being said --

6 MS. WALD: And who makes that? 

7 MR. DE: An assessment as to foreign 

8 intelligence value is made by foreign intelligence 

9 analysts.

10 MS. WALD: By the analysts who are 

11 working on it?

12 MR. DE: Correct, as they would be the 

13 ones who have the most relevant information. 

14 But that also goes to a bigger point as 

15 to the nature of intelligence analysis. I think 

16 you all would appreciate that it's difficult to 

17 determine without context the foreign intelligence 

18 value of any particular piece of information. In 

19 fact, that's why the intelligence community is 

20 often encouraged to connect the dots of various 

21 pieces of disparate information. 

22 And so I think we would hope and expect 
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1 that analysts make that determination about 

2 foreign intelligence value within the context of 

3 all available information.

4 But to your point as to if information 

5 is not reviewed, what is the default? This is a 

6 large reason why we in fact have default retention 

7 periods for data. And for example, for NSA the 

8 default for PRISM collection is a five year 

9 retention period. 

10 But that's also a reason why that 

11 retention period is adjustable, or at least is 

12 tailored to the specific nature of the collection. 

13 So for example, for upstream collection 

14 the retention period is two years, recognizing the 

15 nature of, the unique nature of upstream 

16 collection and that it may have a greater 

17 implication for privacy interests.

18 MS. WALD: Okay. The President 

19 required, I think he required in his January 

20 directive that went to 215 that at least 

21 temporarily the selectors in 215 for querying the 

22 databank of U.S. telephone calls metadata had to 
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1 be approved by the FISA court. 

2 Why wouldn't a similar requirement for 

3 702 be appropriate in the case where U.S. person 

4 indicators are used to search the PRISM database? 

5 I mean what big difference do you see there? 

6 MR. LITT: Well, I think from a 

7 theoretical perspective it's the difference 

8 between a bulk collection and a targeted 

9 collection, which is that the -- 

10 MS. WALD: But I would think that, I'm 

11 sorry for interrupting, Bob. I would think that 

12 message, since 702 has actually got the content.

13 MR. LITT: Well, and the second point I 

14 was going to make is that I think the operational 

15 burden in the context of 702 would be far greater 

16 than in the context of 215. 

17 If you recall the number of actual 

18 telephone numbers as to which a RAS, reasonable 

19 articulable suspicion determination was made under 

20 Section 215 was very small. 

21 The number of times that we query the 

22 702 database for information is considerably 
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1 larger. I suspect that the Foreign Intelligence 

2 Surveillance Court would be extremely unhappy if 

3 they were required to approve every such query.

4 MS. WALD: I suppose the ultimate 

5 question for us is whether or not the 

6 inconvenience to the agencies, or even the 

7 unhappiness of the FISA court would be the 

8 ultimate criteria.

9 MR. LITT: Well, I mean I think it's 

10 more than a question of inconvenience. I think 

11 it's a question of practicability.

12 MR. DE: And if I could add one point 

13 to that. I think one must also look at the 

14 underlying nature of the collection program at 

15 issue. And so I think we should be clear not to 

16 conflate the 215 program with the 702 program, and 

17 as you mentioned, one deals with metadata and one 

18 deals with content. 

19 But the important point being the 

20 latter is directed at content collection targeting 

21 non-U.S. persons located abroad, whereas the 215 

22 program, although it deals with metadata, did not 
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1 have such a necessary distinction. 

2 MS. WALD: It did have a selective, I 

3 mean the 215 program and the original -- 

4 MR. MEDINE: I'm going to, your time, 

5 the Judge's time has expired, but we'll have an 

6 opportunity in another round to continue that 

7 discussion.

8 I want to shift to a different topic, 

9 which is about communication, about searches or 

10 about queries, which is, and I'm happy to have you 

11 explain it, but my understanding basically is that 

12 you are looking for other peoples' discussion of a 

13 particular selector or email term.

14 But I'd like to get back to some of the 

15 definitions here, which are there are some terms 

16 here that would be helpful to understand your view 

17 of, which is what is a target? What is a tasking? 

18 What is a selector? What's a directive? 

19 If you could explain those terms, 

20 because I did want to shift to how those terms 

21 might apply in the about context.

22 MR. WIEGMANN: Okay, I can take a stab 
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1 at that. So a target is the -- maybe I should 

2 start with selector since that's the operative 

3 term that the others build on. 

4 A selector would typically be an email 

5 account or a phone number that you are targeting. 

6 So this is the, you get, you know, terrorists at 

7 Google.com, you know, whatever. That's the 

8 address that you have information about that if 

9 you have reason to believe that that person is a 

10 terrorist and you would like to collect foreign 

11 intelligence information, I might be focusing on 

12 that person's account. 

13 So when you go up on that selector, we 

14 say go up on or target that selector, that means 

15 we're collecting information, we're going to the 

16 provider and getting information related to that 

17 person's account. 

18 So we're intercepting in real time and 

19 then collecting the historic communications of 

20 that particular account. 

21 Okay, so that's what we mean by 

22 targeting a selector. You're using that selector, 
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1 you're providing that to the company, the 

2 provider, to get information on that account, or 

3 if it's a phone number on that phone number. 

4 So that's when we say selector it's 

5 really an arcane term that people wouldn't 

6 understand, but it's really phone numbers, email 

7 addresses, things like that.

8 And targeting, it means that's the one 

9 you're trying to get. They may be in 

10 communication with other email addresses or other 

11 phone numbers and so forth. Those are not the 

12 targeted numbers or accounts, those are others 

13 that are incidentally acquired because they're on 

14 the other end of these communications. So target 

15 is the one you're going after.

16 And the statute requires that that 

17 target be a non-U.S. person located overseas. And 

18 so that's the foreignness determinations that 

19 we're talking about as we go through at great 

20 lengths to make sure that that target is in fact 

21 belongs to a non-U.S. person that is located 

22 overseas.
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1 The other two questions? 

2 MR. MEDINE: Tasking or task.

3 MR. WIEGMANN: Tasking is when you're 

4 going and saying, okay, I want to task this 

5 account means I want to collect information from 

6 that account. So that's the collection.

7 MR. LITT: You task a selector.

8 MR. WIEGMANN: You task a selector. So 

9 you're identifying, that's when you take that 

10 selector to the company and say this one's been 

11 approved. You've concluded that it is, does 

12 belong to a non-U.S. person overseas, a terrorist, 

13 or a proliferator, or a cyber person, right, 

14 whoever it is, and then we go to the company and 

15 get the information.

16 MR. MEDINE: And directives.

17 MR. WIEGMANN: So directives are the 

18 orders that go to the companies that say they have 

19 to comply with the lawful tasking. So that's the 

20 kind of more overarching order that goes to a 

21 company provider and says, okay, you have a legal 

22 obligation to comply with the taskings that are 
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1 given to you and here are the rules and 

2 everything. And that's all provided to them. 

3 Is that a fair summary? I'll ask my 

4 colleagues to see if that is -- 

5 MR. DE: Keeping target as the 

6 statutory term. A term like selector is just an 

7 operational term to refer to something like an 

8 email or phone number, directive being the legal 

9 process by which that's effectuated, and tasking 

10 being the sort of internal government term for how 

11 you start the collection on a particular selector.

12 MR. MEDINE: Okay. So I guess building 

13 on that, what's the statutory rationale for about 

14 collections, because if the target is the email 

15 account or phone number, what is the justification 

16 for gathering communications between two persons, 

17 it may even be two U.S. persons who are discussing 

18 that phone number or that email address, but they 

19 are not themselves, there's no to or from that 

20 particular email address or particular phone 

21 number, why is that targeting that is permissible 

22 under the statute?
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1 MR. WIEGMANN: Right. So the 

2 conclusion there again in a typical case, you're 

3 right, if you're targeting, you know, bad guy at 

4 Google.com you're targeting that person's 

5 accounts, their communications. 

6 Why abouts collection is different is 

7 it's not necessarily communications to or from 

8 that bad guy but instead about that selector. 

9 And so what the court has concluded is 

10 that when the statute uses the term targeting of a 

11 non-U.S. person overseas, targeting that selector 

12 qualifies under the statute for targeting that 

13 non-U.S. person overseas. 

14 So it doesn't have to be targeting 

15 necessarily to or from, but can also target the 

16 communications that are about that particular 

17 selector.

18 MR. MEDINE: So that's a different 

19 meaning of target than earlier, which is where 

20 you're focusing on an account, now you're 

21 discussing targeting means discussions about that 

22 account. 
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1 MR. WIEGMANN: About that selector, 

2 correct.

3 MR. DE: It is always focused on that 

4 account, so I think the key is, the misperception 

5 that some may have that about collection is 

6 somehow about a key word or about the person that 

7 may be behind that account. 

8 But all collections under Section 702, 

9 whether it's upstream abouts, which is a subset of 

10 upstream, or PRISM is all based on the selectors 

11 at issue.

12 MR. MEDINE: But does it raise -- oh, I 

13 see my time has expired so I'll --

14 MS. BRAND: I'm glad to see you're 

15 following your own rules. 

16 Just to follow-up on that because 

17 that's a good line of inquiry, just to make sure 

18 that everyone understands. So you're saying that 

19 if someone is emailing about Rachel Brand or about 

20 explosives that would not be a permissible about 

21 query under your explanation? 

22 MR. DE: So I would like to -- 
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1 MS. BRAND: But you could, you could 

2 perhaps get it about Rachel Brand at --

3 MR. DE: Just so that, because I think 

4 this is an issue that all of us slip into, 

5 clarifying querying for collection. 

6 So we are discussing now the collection 

7 of information. Abouts is a type of collection of 

8 information.

9 MS. BRAND: I'm sorry, right. Yes, 

10 that's right.

11 MR. DE: And so all collection of 

12 information is based, focused on selectors, not 

13 key words, as you just mentioned like terrorist, 

14 or like a generic name or things along those 

15 lines.

16 MS. BRAND: Okay.

17 MR. DE: And it's the same selectors 

18 that are used for the PRISM program that are also 

19 used for upstream collection. It's just a 

20 different way to effectuate the collection.

21 MS. BRAND: Okay. I think a large part 

22 of the function of these hearings is a public 
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1 education function and so I thought David's 

2 questions were great to explain the meaning of 

3 different terms, and I'm glad that you're willing 

4 to bear with us asking you some questions that 

5 we've already discussed with you in private. But 

6 I think it's helpful for everyone to understand 

7 what we're talking about. 

8 And along those lines there was some 

9 discussion in Pat's questions about purging data 

10 that doesn't turn out to be foreign intelligence 

11 information. 

12 But can you explain how on the front13 end you implement the requirement that, not only 

14 that the target be a non-U.S. person reasonably 

15 believed to be abroad but that you expect to get 

16 foreign intelligence information through the 

17 collection, that's a separate statutory 

18 requirement. How do you go about ensuring that 

19 you're collecting that type of information?

20 MR. DE: Sure. So in our earlier 

21 discussion we skipped right to the foreignness 

22 determination, but that's actually a second step. 
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1 There has to be a reason one actually wants to 

2 collect intelligence from the particular selector 

3 in the first place.

4 And then one has to get to the fact, is 

5 this a type of collection permitted under the 

6 statute? So there has to be a valid foreign 

7 intelligence reason to do that collection.

8 But beyond that there has to be a valid 

9 foreign intelligence reason within the ambit of 

10 one of those certifications that the FISC approves 

11 annually. Those are certifications on things like 

12 counterterrorism, encountering WMDs, for example, 

13 weapons of mass destruction. 

14 And so when an analyst needs to make a 

15 determination as to the valid foreign intelligence 

16 purpose for which they want to effectuate 

17 collections, they must also document that. 

18 That is documented in a targeting 

19 rationale document in advance, ex ante, and those 

20 are always reviewed by the Justice Department and 

21 the Director of National Intelligence every 60 

22 days.
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1 MR. WIEGMANN: This is an important 

2 point for non-U.S. persons because people think 

3 about, okay, well once you've concluded that it's 

4 a non-U.S. person overseas then you can collect 

5 whatever you want. As Raj said, that's really not 

6 the case. 

7 It really is targeted, not only based 

8 on the identity of the person and the location of 

9 the person, but also that you're trying to get 

10 foreign intelligence. And so it's an important 

11 protection really in the statute that is designed 

12 for non-U.S. persons. It's not blanket collection 

13 of any non-U.S. person overseas. It's aimed at 

14 only those people who are foreign intelligence 

15 targets and you have reason to believe that going 

16 up on that account that I mentioned, bad guy at 

17 Google.com is going to give you back information, 

18 information that is foreign intelligence, like on 

19 cyber threats, on terrorists, on proliferation, 

20 whatever it might be.

21 MS. BRAND: What can you tell us in an 

22 unclassified setting about the documentation of 
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1 foreign intelligence purpose or the oversight to 

2 ensure? I mean we've talked a little bit about 

3 that in past questions, but can you give us 

4 anything more specific?

5 MR. WIEGMANN: They do have to document 

6 that at NSA and every -- it's essentially called a 

7 tasking sheet, I think. And on that sheet they 

8 are documenting the foreign intelligence purpose 

9 that they are trying to pursue in going after a 

10 particular target. 

11 And those are all reviewed together 

12 with the foreignness determination by the 

13 Department of Justice on a regular basis. 

14 MS. BRAND: That's a separate sheet for 

15 every selector?

16 MR. WIEGMANN: For every single one, 

17 that's right.

18 MR. BAKER: And I think, at least with 

19 respect to FBI, I think the review that Raj 

20 mentioned earlier is done every 30 days on these 

21 tasking decisions, I guess you'd say, the foreign 

22 intelligence and the foreignness determination.
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1 MR. DE: And if I could put that into 

2 the broader context of if the question really is 

3 getting at what is the process within which that 

4 happens, even before that happens we have training 

5 for analysts as to how they should document this 

6 material, we have audits of our databases, we have 

7 a comprehensive compliance program, we have spot 

8 checks, even within NSA prior to the 60 day 

9 reviews that are done by the Department of Justice 

10 and DNI, for us anyway. 

11 There are also quarterly reports to the 

12 FISC on compliance with the program, semiannual 

13 reports to the FISC and to Congress, and annual 

14 inspectors general assessments, and as I 

15 mentioned, the annual certification process by the 

16 FISC. 

17 So I think those decisions are, while 

18 they're one very granular aspect of the program, 

19 are conducted within the context of this broader 

20 regime.

21 MS. BRAND: Okay. And I see that my 

22 time just ran out.
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1 MS. COLLINS COOK: I wanted to ask one 

2 additional question about abouts. Can you do 

3 about collection through PRISM?

4 MR. DE: No.

5 MS. COLLINS COOK: So it is limited to 

6 upstream collection?

7 MR. DE: Correct. PRISM is only 

8 collection to or from selectors.

9 MS. COLLINS COOK: I wanted to shift to 

10 a separate topic. One of the things that I have 

11 found both concerning and frustrating through the 

12 process of our evaluation of programs is how to 

13 both assess and articulate the efficacy of these 

14 programs. 

15 And Mr. Litt, you had begun speaking 

16 about this in your prepared remarks. And I'd like 

17 to ask a couple of questions. One, how do you 

18 assess the efficacy of a particular program? How 

19 do you think we should be assessing the efficacy 

20 of a particular program? 

21 And three, it's not really a question, 

22 it's more of a comment which is, please don't give 
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1 me a series of success stories and then say that's 

2 how you evaluate the efficacy of the program. 

3 Because I think that's an initial response from 

4 the government often in response to a question, 

5 either from a body like ours or from the media. 

6 But how do you assess the efficacy of 

7 the program, how periodically do you do so, and 

8 how would you encourage us to assess the efficacy?

9 MR. LITT: Well, let me start on that, 

10 and I want to start by saying that I completely 

11 agree with you that sort of individual success 

12 stories are not the way to evaluate a collection 

13 program and its utility. 

14 The way you evaluate collection 

15 programs is going to depend in part on what the 

16 particular program is for. 

17 In this case, we have in fact the 

18 Office of the Director of National Intelligence 

19 has attempted, part of our job is to try to 

20 determine that resources are effectively allocated 

21 within the intelligence community budget. 

22 And so we have done studies to try to 
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1 look at, okay, what are our collection priorities, 

2 how much reporting is generated on these 

3 priorities, and where do those reports come from, 

4 what kind of collection source, to the extent we 

5 can identify that. And that's one of the ways 

6 that we've determined that Section 702 is 

7 relevant. 

8 Another thing is just by looking at the 

9 sheer nature of the information that we get and 

10 its utility towards a whole variety of national 

11 priorities. That's a more impressionistic 

12 approach, and yet you can see time and again in 

13 important intelligence reports that are provided 

14 to policy makers that it's derived from Section 

15 702 collection.

16 So those are two ways that I would look 

17 at estimating the value of a particular 

18 collection.

19 MR. DE: If I could just add on to 

20 that. With respect to this program or any program 

21 I think intelligence professionals will tell you 

22 that any tool must be evaluated in the context of 
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1 the other tools in which it is utilized. 

2 All intelligence tools are used in 

3 complementary fashion with one another and to 

4 isolate one particular tool and evaluate its 

5 effectiveness in isolation probably doesn't do us 

6 justice as to what's valuable and what's not.

7 It also depends on the type of tool. 

8 Different types of intelligence programs are used 

9 for different purposes. A program like Section 

10 702 is used for different purposes, for example, 

11 than a program, a metadata program with telephony 

12 metadata. 

13 One may be a discovery tool to help 

14 pursue more specific collection and others may be 

15 used as in fact the specific collection that 

16 follows from that. 

17 Third, there may be uses in which the 

18 PCLOB has recognized in terms of either directing 

19 the government in certain directions or at least 

20 helping to shape the focus of the government. 

21 And so I think the absolute wrong 

22 question is how many plots did this tool stop. 
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1 And you can fill in the blank for what this tool 

2 refers to. But that is absolutely the wrong 

3 question, and I think it won't do us justice to 

4 figure out what we need as a government.

5 MS. COLLINS COOK: I have time I think 

6 for one last question. What is the view of the 

7 various agencies as to whether or not 702 is an 

8 effective and valuable program for the United 

9 States?

10 MR. BAKER: I think it is an effective 

11 and valuable program for the United States. 

12 And if I could just address your last 

13 question as well. I mean I think you really, in 

14 order to understand whether it's effective and 

15 useful you have to think about what your goals are 

16 with respect to this particular program. 

17 And the goals for this program, like 

18 many other collection programs are to obtain I 

19 think timely, accurate, informative foreign 

20 intelligence information about the capabilities, 

21 plans, intentions of foreign powers, agents, 

22 actors, and so on and so forth. 
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1 And so I think really what you're 

2 talking really is, I think, developing a good 

3 metric to understand whether this program is worth 

4 all of the costs associated with it. And so I 

5 think you'd want to look at the amount of 

6 information that you, that we acquire, but also 

7 then obviously the quality of it. How good is it? 

8 And I think you can slice that a lot of different 

9 ways, as my colleagues have suggested.

10 So I think that's really what I would 

11 recommend you be focused on. But you have to, 

12 because this is a broad-based foreign intelligence 

13 collection program you have to look at not only, I 

14 mean you have to look at counterterrorism but you 

15 have to look more broadly than that because this 

16 program is not limited just to counterterrorism.

17 MR. DE: I agree it's definitely an 

18 effective program. I think the one point I should 

19 have added is that the review that Bob mentioned 

20 happening within the executive branch is not 

21 limited to the executive branch. 

22 Congress also reviews the effectiveness 
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1 of this program, as well as the 215 program. And 

2 I think that's part of the rationale behind having 

3 sunset clauses for various programs is that when 

4 those statutory provisions expire, as did the 215 

5 program twice in the last five years and as did 

6 702 in 2012, Congress undertakes, as it should, an 

7 evaluation of the effectiveness of the programs.

8 MR. LITT: So I completely agree that 

9 it is an effective and important program and I 

10 really want to emphasize the last point that Jim 

11 made, which is that this program should not be 

12 considered solely as a counterterrorism program. 

13 This program has utility, has significant and 

14 exceedingly important utility in areas outside of 

15 counterterrorism.

16 MR. DEMPSEY: Trying to clear up 

17 another issue in terms of the participation of 

18 service providers and the awareness of service 

19 providers in the 702 implementation, is 702 

20 implemented, all 702 implementation is done with 

21 the full knowledge and assistance of any company 

22 that, from which information is obtained, is that 
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1 correct?

2 MR. BAKER: Yes. The answer to that is 

3 yes.

4 MR. DEMPSEY: So early on in the debate 

5 there were some statements by companies who may or 

6 may not have been involved in the program saying, 

7 well, we've never heard of PRISM. But whether 

8 they ever heard of PRISM, any company that was, 

9 from whom information was being obtained under 702 

10 knew that it was being obtained? 

11 MR. LITT: Correct.

12 MR. DE: PRISM is just an internal 

13 government term that as a result of the leaks 

14 became a public term. But collection under this 

15 program is done pursuant to compulsory legal 

16 process that any recipient company would have 

17 received.

18 MR. DEMPSEY: So they know that their 

19 data is being obtained because --

20 MR. DE: They would have received 

21 legal process in order to assist the government, 

22 yes.
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1 MR. DEMPSEY: One thing I read in one 

2 of the statements is under 702 you could target 

3 entire countries or regions, is that correct? 

4 MR. DE: So all collection under 702 is 

5 based on specific selectors, things like phone 

6 numbers or email addresses. It is not a bulk 

7 collection program.

8 MR. DEMPSEY: And a selector would not 

9 be an entire area code, for example? 

10 MR. DE: Correct, correct.

11 MR. DEMPSEY: Going back to the 

12 constitutional -- oh, one other set of questions. 

13 Even I've lost track now of what you've 

14 already said here versus what you've said 

15 elsewhere. But in terms of where you make a 

16 determination that a person is a non-U.S. person 

17 outside, reasonably believed to be outside the 

18 United States and then you later discover that 

19 that was good faith but wrong, the person was in 

20 United States, or the person was a U.S. person, do 

21 you track that, and what do you do when you 

22 discover that, and how often do you discover? 
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1 I'm not talking about the roamings, I'm 

2 talking just about you thought he was outside the 

3 United States and that was just wrong, or you 

4 thought he was a non-U.S. person and that was just 

5 wrong, how often does that occur?

6 MR. DE: So I'll defer to Brad on the 

7 sort of overarching review, but if I could just 

8 make a point about what happens. So yes, we keep 

9 track of every time new information comes to our 

10 attention to suggest that a prior intelligence 

11 evaluation was incorrect, even if it had met the 

12 legal standard. 

13 Every such incident is a compliance 

14 matter that has to be reported to the FISC and 

15 ultimately in semiannual reports reported to the 

16 Congress. 

17 And third, that sets in process a 

18 purging process by which information that should 

19 not have been collected if it had not met the 

20 legal standard needs to be purged from NSA 

21 systems. 

22 I think Brad can speak to the level of 
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1 accuracy of those.

2 MR. BAKER: Just real quick, it's the 

3 same. The item is de-tasked and the information 

4 is purged.

5 MR. WIEGMANN: Right. So just to 

6 distinguish again between two different types of 

7 compliance issues. One is the roamer example that 

8 you mentioned. 

9 So this is, let's say we're up on a 

10 cell phone that we believe belongs to a bad guy 

11 who's outside the United States, a foreign person, 

12 and then that person shows up in Chicago, when 

13 that happens we de-task that cell phone. That 

14 means we're no longer collecting the 

15 communications. 

16 That's a compliance incident that's 

17 reported but it's not an erroneous determination. 

18 It's based on the movement of the individual.

19 So putting those cases aside, in cases 

20 where we just kind of get it wrong, we think the 

21 email account or the phone is located overseas but 

22 it turns out that that's wrong, or it turns out 
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1 that we think it's a non-U.S. person but it is a 

2 U.S. person, we do review every single one to see 

3 if that's the case.

4 And our review at Justice we decided to 

5 review, and as I mentioned earlier, we think it's 

6 less than one in a thousand cases where they make 

7 that determination erroneously.

8 MR. DE: And this probably bears worth 

9 repeating that the initial determination is not a 

10 once and done, so there is an affirmative 

11 obligation for analysts to reaffirm the 

12 foreignness determination on a periodic basis, 

13 which contributes to the ability to make sure that 

14 determination is in fact fresh and current, which 

15 of course contributes to the accuracy of that 

16 determination.

17 MR. DEMPSEY: Going to the 

18 constitutional issues, back to those for a second, 

19 the FISA court has determined, I mean they must 

20 they must determine every year that the program is 

21 being implemented consistent with the Fourth 

22 Amendment. 
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1 The very first time they determined 

2 that, there was an opinion that they issued. That 

3 one is, am I right, not yet public? 

4 MR. WIEGMANN: I think that's correct.

5 MR. DEMPSEY: Isn't that a good 

6 candidate for declassification?

7 MR. LITT: We have a lot of good 

8 candidates for declassification. 

9 MR. DEMPSEY: Yeah.

10 MR. LITT: In all seriousness there, we 

11 are, there are a lot of documents that we have 

12 that we are reviewing for declassification that 

13 include not only FISA court opinions but a whole 

14 variety of other documents.

15 MR. DEMPSEY: The FISA court in 2008 

16 when they last considered the constitutionality of 

17 a program, the predecessor to 702, the court 

18 issued a redacted but largely unclassified opinion 

19 conducting a relatively full Fourth Amendment 

20 analysis. 

21 And there's been some Fourth Amendment 

22 analysis conducted in this situation, and if 
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1 you're sort of talking about, you know, the 

2 Rosetta Stone kind of Ur document, then the very 

3 first court opinion should have been the most 

4 fulsome explanation of the constitutionality of 

5 the program.

6 I think that -- I mean I hear Bob 

7 saying there's a lot of opinions out there, but to 

8 me this one seems to be one that would explicate 

9 at least one court's judgement on this because 

10 it's been the basis of -- I assume all the rest 

11 just said nothing has changed that would merit us 

12 to reconsider our very first judgement.

13 MR. WIEGMANN: So I mean I think it's 

14 among the opinions. We're committed to reviewing 

15 all the opinions of the FISA court to determine 

16 which ones can be declassified in redacted form. 

17 So I imagine this will be among those that are 

18 reviewed. So absolutely, I don't disagree. It'll 

19 be among the opinions that will be reviewed.

20 MR. DE: I just don't want to leave 

21 folks with any mysterious misimpression. I think 

22 the Board has access to everything and so one 
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1 shouldn't have to assume anything about subsequent 

2 opinions. The Board has in fact reviewed 

3 everything. 

4 And so I just don't want -- what I 

5 think would be an unfortunate consequence would be 

6 for folks to take away the impression that there 

7 is a mysterious opinion that has some secret 

8 analysis, and I don't think that's the case. I 

9 don't think you intended to suggest that.

10 MR. MEDINE: The Board does have access 

11 to it but I think the question is whether the 

12 public should have access to it as part of the 

13 debate. But it's Judge Wald's --

14 MR. DEMPSEY: The public had access to 

15 the 2008 --

16 MR. MEDINE: It's Judge Wald's turn.

17 MR. WIEGMANN: So just one other thing 

18 I would add on that is that 702 collection has now 

19 been challenged by a number of criminal defendants 

20 when 702 information is being used against them in 

21 their cases. And so we'll be filing public briefs 

22 and we can expect some more decisions in that area 
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1 as well. 

2 So that's another way that the 

3 constitutionality of 702 will now be on the public 

4 record, or I mean the opinions on it, and the 

5 briefs and everything will now be a matter of 

6 public record.

7 MR. MEDINE: Judge Wald.

8 MS. WALD: Okay. By whom and under 

9 what substantive criteria is the initial decision 

10 to use a U.S. person selector for searching the 

11 PRISM base made? I mean who decides let's do 

12 that? What's the substantive criteria on which 

13 they make it? 

14 You don't have to go into the review 

15 process. I know the decision will be reviewed up 

16 and down. But how does that get made? What's the 

17 substantive basis? 

18 MR. DE: So I can speak for NSA in 

19 particular.

20 MS. WALD: So just to clarify, that 

21 means if it goes to one of the other agencies, not 

22 NSA, CIA or FBI or something, they make their own 
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1 substantive decisions for querying? 

2 MR. DE: Yes. The 702 program perhaps 

3 as a necessary predicate is one that all agencies 

4 operate on their own and have their own 

5 minimization procedures which would address topics 

6 like searches. 

7 NSA's procedures in this regard, in 

8 this element have been made public and so the 

9 standard is that such a query needs to be 

10 reasonably likely to return foreign intelligence 

11 information.

12 MS. WALD: Be reasonably likely. And 

13 who is it made by initially? 

14 MR. DE: It's made by the analyst.

15 MS. WALD: By the analyst who's working 

16 on that particular case, okay.

17 My other question is that the President 

18 did, if I understand his directive correctly, 

19 direct that there be some changes in the treatment 

20 of non-U.S. persons as to the limits on and 

21 retention of the data acquired incidentally to 

22 bring them more in line with those of U.S. persons 
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1 incidentally where there is no foreign 

2 intelligence value apparently. 

3 Can you tell us a little bit more 

4 specifically if anything has been done in that 

5 regard or is being contemplated vis-a-vis 702? 

6 MR. LITT: So I think first of all it's 

7 important to understand the point that somebody 

8 made, it may have been Brad made earlier, which is 

9 that there are already protections to some degree 

10 built into the system there. The protections for 

11 non-U.S. persons are not as great as those for 

12 U.S. persons because U.S. persons are protected by 

13 the Fourth Amendment. 

14 But there is a requirement that we 

15 can't target a selector unless we have reason to 

16 believe it's of foreign intelligence value. And 

17 there's sort of a general principle that the 

18 intelligence agencies, their job is to collect, 

19 analyze, and disseminate foreign intelligence 

20 information, not random information. 

21 I think what the President has directed 

22 is that we go back and look at our procedures and 
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1 not only with respect to 702, but with respect to 

2 signals intelligence in general, assess whether, 

3 the extent to which it's possible to provide 

4 limitations on collection, retention, and 

5 dissemination that more closely track those for 

6 U.S. persons. 

7 For example, Executive Order 12333 

8 provides specific categories of personal 

9 information about U.S. persons that can 

10 appropriately be retained and disseminated. 

11 There's a list of them in Executive 

12 Order 12333 and the President has asked that we 

13 assess whether we can apply those same sorts of 

14 rules to personal identifiable information of 

15 non-U.S. persons.

16 MS. WALD: Right now, just to follow17 up, right now if you get incidental information 

18 about a foreign person in the course of targeting 

19 another foreign person and you look at it, do you 

20 use the same criteria and look at the same review 

21 and say, well, you know, he was just talking to 

22 his grandmother or something, there isn't any 
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1 foreign intelligence there, and you purge it? 

2 MR. DE: Any time there is not foreign 

3 intelligence value to collection, by definition it 

4 would be purged.

5 But I think an important point to be 

6 made as you are articulating, Judge, is incidental 

7 collection, just to explain that term a little 

8 bit, all communications obviously have two ends. 

9 One end is the target and the other is presumably 

10 not a target. We don't know. One doesn't know ex 

11 ante. 

12 And so by definition there will be 

13 incidental collection of non-U.S. persons, as well 

14 as U.S. persons. Historically, constitutional 

15 protections obviously have only applied to the 

16 U.S. person subset.

17 MS. WALD: I understand.

18 MR. BAKER: Can I just make a comment 

19 about that?

20 MS. WALD: We don't have time. Okay, 

21 quickly on the last time, I found it very 

22 provocative when you were answering Beth Cook's 
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1 question about if you're going to assess the 

2 efficacy of a program you have to look at it in 

3 terms of its efficacy and the holistic view of all 

4 of the programs. 

5 I guess it's inevitable that I would 

6 ask the question, but how can anybody except you 

7 people do that, because so many of your programs, 

8 I think, are just unknown, even to the FISA court? 

9 They're not all FISA supervised, and certainly the 

10 outside world doesn't know about many of them. So 

11 you know, how in effect can an outside assessment 

12 be made?

13 MR. DE: If I could just address it 

14 since it was in response to my comment. Certainly 

15 I think I would not suggest that there should be a 

16 public evaluation of all intelligence programs. I 

17 think, for example, this Board as access to 

18 information about counterterrorism programs and so 

19 I would expect that any evaluation would be in the 

20 context of the other CT programs that you have the 

21 jurisdiction to review.

22 As with Congress, as I mentioned, they 
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1 reevaluate programs on a periodic basis. And I 

2 think the public record now indicates that there 

3 is a fairly robust exchange between the executive 

4 branch and the legislative branch on a variety of 

5 programs. And so I think that's where 

6 traditionally the evaluation has occurred.

7 MR. LITT: Yeah, I was just going to 

8 say that we've managed, we've set the balance 

9 between public disclosure and the need for secrecy 

10 by empowering the congressional intelligence 

11 committees. We're required by statute to keep 

12 them fully and currently informed of intelligence 

13 activities, and we do. They know about these 

14 programs and they have the opportunity to evaluate 

15 them, and they do. 

16 In fact, they passed an Intelligence 

17 Authorization Act that includes a lengthy 

18 classified annex that is very prescriptive with 

19 respect both to reports that it requires of us and 

20 directions as to what we should, you know, where 

21 we should be spending our money. 

22 So that's sort of the external 
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1 oversight and the way we've said, okay, well, we 

2 need to have oversight of these but they still 

3 need to remain classified.

4 MR. MEDINE: Did you want to finish? I 

5 don't know, you wanted to make a point earlier 

6 about foreign intelligence. 

7 MR. BAKER: I had several points I 

8 wanted to make. But let me just on that real 

9 quick, I mean I think the, even the addition of 

10 Congress having oversight of it, the courts in 

11 certain circumstances, and then also obviously the 

12 President and all of the executive branch 

13 officials, we have an obligation to make sure that 

14 in addition to adherence to the law and taking 

15 care that the laws are faithfully executed, to 

16 spend our time and spend our money on programs 

17 that are effective and not be wasting our time on 

18 things that are not. 

19 I mean that flows from the President to 

20 the DNI, the Attorney General, Director of the 

21 FBI, Director of NSA and so on. We should be 

22 focused on things that are useful and collecting 
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1 information that produces the kind of intelligence 

2 information that I was talking about before.

3 So the other comment that I just wanted 

4 to make was just with respect to FBI, our 

5 personnel only have access to the databases when 

6 they've received the proper training with 

7 appropriate oversight and operating consistent 

8 with the court-approved standard minimization 

9 procedures when they're doing their query 

10 activity.

11 MR. MEDINE: I wanted to shift to a 

12 different subject, which is attorney client 

13 privilege. There were some press reports a couple 

14 of weeks ago about collection of information that 

15 may involve attorney client communications. 

16 But I want to focus particularly on the 

17 NSA minimization procedures, which I understand do 

18 exclude attorney client communications but only in 

19 a very narrow context where the client is under 

20 criminal indictment and the United States, 

21 basically on a federal criminal indictment. 

22 That seems like a very narrow 
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1 interpretation of attorney client privilege. I 

2 wanted to see if that is the interpretation you 

3 apply in minimizing communications, and if it is 

4 what impact there would be if it was expanded to 

5 the more normally accepted definition of attorney 

6 client privilege, which is basically lawyers and 

7 clients consulting with each other? 

8 MR. DE: So we have written a letter to 

9 the ABA and commented on it to the Board and to 

10 the public, I think it's a public letter now, 

11 which explicates in fuller detail than I probably 

12 can off the top of my head as to our procedures.

13 But I think one fundamental premise is 

14 that analysts are under an obligation to identify 

15 for the Office of General Counsel any time they 

16 encounter something that may be potentially 

17 privileged. 

18 And I think as all of us who are 

19 lawyers, I think that probably encompasses every 

20 one up here on the stage, knows just because a 

21 communication is with a lawyer does not mean it is 

22 in fact a privileged communication. So it's 
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1 helpful to have a lawyer involved to determine 

2 that. 

3 While I can't speak to any particular 

4 incident that may have been written about in the 

5 press I think there's a couple of big picture 

6 points that are worth making. One is our office 

7 has historically provided a range of advice to 

8 minimize to the extent possible the collection of 

9 attorney privileged material.

10 MR. MEDINE: That's privilege just 

11 where there's a criminal indictment or are you 

12 viewing privilege -- 

13 MR. DE: Beyond the criminal. So the 

14 point I'm trying to make is that while there may 

15 be a specific provision in the 702 procedures that 

16 addresses the criminal context, there's a reason 

17 why we ask analysts to consult counsel, because 

18 the advice can often be tailored to the specifics 

19 of a circumstance far outside the criminal realm, 

20 recognizing the import of attorney client 

21 privileged material in context, even outside the 

22 criminal context.
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1 MR. MEDINE: I want to talk a little 

2 bit about reverse targeting where you target 

3 someone overseas potentially with the view of 

4 collecting information about a U.S. person in the 

5 United States, and that's impermissible. 

6 There seems, again maybe this is a 

7 somewhat technical point, but there seems to be 

8 somewhat of a quirk in the statute. It says that 

9 you can target people reasonably believed to be 

10 outside the Unites States, you cannot reverse 

11 target someone outside the United States if the 

12 purpose is to target a particular known person 

13 reasonably believed to be in the United States.

14 Does that permit targeting a person 

15 outside the United States with the intent of 

16 gathering information about U.S. persons not in 

17 the United States?

18 MR. WIEGMANN: No.

19 MR. MEDINE: Why not? 

20 MR. WIEGMANN: There's a separate 

21 provision that bars targeting U.S. persons outside 

22 the United States and so if you were doing that 
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1 and you are trying to target a U.S. person outside 

2 the United States, you couldn't do that.

3 MR. MEDINE: So you wouldn't do the 

4 reverse targeting procedure?

5 MR. WIEGMANN: I don't know if you 

6 would call that reverse targeting --

7 MR. DE: There is another statutory 

8 provision that prohibits the targeting of U.S. 

9 persons outside the U.S. under 702 --

10 MR. MEDINE: Even reverse targeting? 

11 Again, I'm not talking about -- I agree it's clear 

12 that you can't target a U.S. person outside of the 

13 United States, but what if I find a non-U.S. 

14 person that I know is in communication with a U.S. 

15 person who's also outside of the United States, is 

16 that permissible?

17 MR. WIEGMANN: No.

18 MR. DE: No.

19 MR. MEDINE: Because? 

20 MR. WIEGMANN: Because you would be 

21 targeting, if your real purpose is to target that 

22 U.S. person, you're targeting that person. 
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1 MR. MEDINE: So reverse targeting in 

2 your view is the same as targeting? The 

3 prohibition on reverse targeting is co-existent 

4 with the prohibition on targeting?

5 MR. WIEGMANN: Well, I mean again I 

6 think of reverse targeting as a geographic issue 

7 essentially when you're targeting, let's say you 

8 have a legitimate target overseas but you really 

9 want the communications of a U.S. person or a 

10 non-U.S. person inside the United States, but the 

11 statute says you can't do that.

12 MR. MEDINE: Right, but --

13 MR. WIEGMANN: But as we were just 

14 explaining which is if you have a U.S. person that 

15 you're interested in overseas, you can't use 702 

16 to target them either and I don't think --

17 MR. MEDINE: Or reverse target them?

18 MR. WIEGMANN: What's that?

19 MR. MEDINE: If you know that that U.S. 

20 person is in communication with a non-U.S. person 

21 and both of them are overseas --

22 MR. WIEGMANN: Right.
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1 MR. MEDINE: Could you target the 

2 non-U.S. person to get the U.S. person's 

3 communications?

4 MR. WIEGMANN: You couldn't do it for 

5 that purpose but if the non-U.S. person overseas 

6 is a valid foreign intelligence target that you're 

7 interested in their communications, sure, you can 

8 target that person. And the fact that they're 

9 incidentally communicating with a U.S. person 

10 overseas, that's okay. I wouldn't consider that 

11 reverse targeting. 

12 You still have to have that legitimate 

13 target. I don't know if that answers your 

14 question, but.

15 MR. MEDINE: It did.

16 MR. BAKER: I'm not going to read it 

17 now and take up your time, but take a look at 

18 Section 704 A 2, and that may address the kind of 

19 concern that you're focused on perhaps, but 

20 perhaps not.

21 MR. MEDINE: Okay. I wanted to get 

22 back to efficacy. As you know, our charge is to 
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1 look at the balance between national security and 

2 privacy and civil liberties, and I think following 

3 up on Ms. Cook's question -- sorry, I'll just hold 

4 that until the next round.

5 MS. BRAND: I wanted to go back to 

6 upstream collection a little bit. I've seen some 

7 statements in the public domain about the volume 

8 of upstream collection vis-a-vis the volume of 

9 PRISM collection. What can you tell us in a 

10 public setting about that? 

11 MR. DE: I think the best publicly 

12 available information is from the October 11th, 

13 2011 opinion that has now been declassified in 

14 which there was a rough estimate there, and 

15 forgive me for if it's not precise, but that about 

16 10 percent of collection is upstream. On the 

17 order of magnitude, I just don't know the exact 

18 number.

19 MS. BRAND: Okay. So you said in an 

20 earlier round of questioning that upstream, 

21 collection from upstream is retained for a shorter 

22 period of time than collection from PRISM and you 
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1 said that the reason for that distinction is that 

2 there's a potentially greater privacy concern with 

3 respect to upstream collection. 

4 Can you elaborate on why, whether the 

5 additional privacy concerns that pertain to 

6 upstream.

7 MR. DE: Sure. And a lot of this is 

8 laid out in this court opinion that's now public. 

9 This is from the fall of 2011. I think because of 

10 the nature of abouts collections, which we have 

11 discussed, there is potentially a greater 

12 likelihood of implicating incidental U.S. person 

13 communication or inadvertently collecting wholly 

14 domestic communications that therefore must need 

15 to be purged. 

16 And for a variety of circumstances the 

17 court evaluated the minimization procedures we had 

18 in place and as a consequence of that evaluation 

19 the government put forth a shorter retention 

20 period to be sure that the court could reach 

21 comfort with the compliance of those procedures 

22 with the Fourth Amendment. And so two years was 
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1 one element of the revised procedures that are now 

2 public.

3 MS. BRAND: So from what you just said 

4 that if using a legitimately tasked about term a 

5 wholly domestic communication is collected, it has 

6 to be purged?

7 MR. DE: If one recognizes it, yes. In 

8 fact, there's a --

9 MS. BRAND: Even if it has foreign 

10 intelligence information? 

11 MR. DE: There are specifics. Off the 

12 top of my head I can't articulate all the 

13 particular exceptions in the minimization 

14 procedures but there are an elaborate set of 

15 detailed procedures that are now public that 

16 discuss how upstream collection must be treated in 

17 order to account for this concern. 

18 And it has things like data must be 

19 segregated in certain ways where the risk of 

20 collecting a wholly domestic communication is 

21 higher, there's a shorter retention period. 

22 Wholly domestic communications are not 
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1 permitted under the statute, and so therefore as a 

2 default rule, yes, it must be purged.

3 MS. BRAND: Jim, was there something 

4 you wanted to add?

5 Okay. I want to use the word 

6 incidental collection there again, and your 

7 definition earlier seemed to be that by incidental 

8 you mean, by incidental U.S. person collection you 

9 mean that the person on the other end of the phone 

10 from the non-U.S. person abroad is a U.S. person. 

11 That's your definition, right? 

12 Is there another definition that you're 

13 aware of? Because you seem to be -- okay.

14 I think there's been some frustration 

15 with the use the term incidental in that context 

16 because it's not accidental, it's intentional. 

17 It's actually unavoidable. And so I just wanted 

18 to make sure that we're all on the same page, that 

19 by incidental you mean not accidental, not 

20 unintentional, but this is actually what we're 

21 doing.

22 MR. LITT: It is incidental to the 
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1 collection on the target. It is not accidental, 

2 it is not inadvertent. Incidental is the 

3 appropriate term for it.

4 MS. BRAND: Okay.

5 MR. DE: And I'd say that term I think 

6 has been used far beyond this program and 

7 historically, so there's no judgement intended. 

8 That is just a term.

9 MS. BRAND: Okay, okay. I'll hold the 

10 other questions for another round.

11 MS. COLLINS COOK: Just following up on 

12 David's question, I think it goes to a broader 

13 point which is that there is a perception that 

14 this statute is fairly complicated, there's got to 

15 be loopholes or idiosyncrasies in there somewhere.

16 But let me just ask you, would it be 

17 the view of the United States government that it 

18 is appropriate to use 702 to intentionally target 

19 U.S. persons, whether directly or through reverse 

20 targeting, whether they are inside the United 

21 States or outside the United States?

22 MR. LITT: No, definitely not.
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1 MR. DE: No.

2 MR. LITT: That is not permissible.

3 MS. COLLINS COOK: I wanted to also 

4 follow up on a question about the abouts. And I 

5 apologize, again just for folks understanding that 

6 we spent six and a half hours talking with folks 

7 about just the oversight mechanisms in place and 

8 were unable to get through that entire 

9 conversation. So I apologize if you've said this 

10 before today.

11 The collection methods, procedures that 

12 you use with respect to abouts, those procedures, 

13 are they approved by the FISA court? 

14 MR. DE: Yes.

15 MS. COLLINS COOK: Are those 

16 transparent to Congress?

17 MR. DE: Yes.

18 MS. COLLINS COOK: I think we haven't 

19 necessarily, we started to allude to this but can 

20 you talk a little bit about your impression of how 

21 the intel committees in particular view their 

22 obligations with respect to oversight of your 
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1 programs and whether you have found in your 

2 experience that to be pro forma or in any way 

3 lacking? 

4 And let the record reflect a few, not 

5 quite eye rolls, but I think the response was, no, 

6 they have not found this to be pro forma in any 

7 way.

8 MR. LITT: I've been on this job now 

9 for getting on towards five years and I have found 

10 nothing about my interactions or our institutional 

11 interactions with the intelligence committees to 

12 be pro forma. 

13 They have fairly substantial staffs 

14 which have a lot of experience. Some of them come 

15 from the community. They know, they dig very 

16 deeply into what we do. The DNI occasionally uses 

17 the term wire-brushing for the interactions that 

18 we have with the committees, so it's not a pro 

19 forma interaction in any way.

20 MR. DE: If I could add one point, on 

21 programs like 702 that we're talking about today 

22 for example, we all lived through the 
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1 reauthorization of Section 702 in 2012. 

2 That process was not simply in 

3 connection with the intelligence committees, but I 

4 can remember numerous briefings where we would go 

5 up for a member, for all member briefings that the 

6 intelligence committees would host for the 

7 Congress. 

8 So I don't want to leave the impression 

9 that it's only with the intelligence committees, 

10 particularly for a program like 702 that needs to 

11 be voted on by all members of Congress on the 

12 basis of a sunset clause.

13 MS. COLLINS COOK: I want to make sure 

14 that my colleagues have time for their last round 

15 of questions so I'll cede my time.

16 MR. DEMPSEY: Going back to the 

17 minimization procedures question, and specifically 

18 the incidental collection question, am I right 

19 that the rule is that whether the information is 

20 inadvertently collected, that is you were tasking 

21 on the wrong selector or some mistake was made and 

22 you got something that you didn't intend to get 
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1 that's inadvertent, or you were correctly 

2 targeting the right account and then you collected 

3 communications to or from a U.S. person that's 

4 incidental, the procedures say, minimization 

5 procedures, rules say that if you never discover 

6 that it was inadvertent and never discover that it 

7 was incidental, you never realized that it was a 

8 U.S. person collection, it's deleted after five 

9 years? 

10 The basic rule is you keep it for five 

11 years, you keep everything for five years, two 

12 years on upstream, five years on PRISM, and then 

13 it gets deleted. That's the baseline rule, right? 

14 MR. LITT: Correct.

15 MR. DEMPSEY: And then you on top of 

16 that the rule is that if then you, through 

17 analysis, through reviewing it that it was 

18 inadvertent or incidental collection on a U.S. 

19 person you must immediately purge? Bob's shaking 

20 his head.

21 MR. LITT: There's a difference in the 

22 way inadvertent and incidental, as you're using 
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1 those terms, are very different concepts. 

2 Inadvertent refers to a collection that 

3 was not authorized by law. That is purged.

4 Incidental -- 

5 MR. DEMPSEY: Purged unless? 

6 MR. LITT: Unless, as Raj mentioned, 

7 that there are certain exceptions. I'm certainly 

8 not able to recite them but they do exist. But 

9 they're fairly narrow. 

10 Incidental is collection that is 

11 authorized by law. And at that point the rules 

12 relating to U.S. persons kick in and if you 

13 determine that it has no foreign intelligence 

14 value you purge it.

15 MR. DEMPSEY: Right, but I mean what's 

16 your response to the argument, well, fine, that 

17 just means that if you think it's valuable you can 

18 keep it, if you don't think it's valuable then you 

19 purge it? 

20 MR. LITT: But it's lawfully collected.

21 MR. DEMPSEY: Fair enough. But you do, 

22 if it is of interest to you, you do keep it? 
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1 MR. LITT: If it's of potential foreign 

2 intelligence value --

3 MR. DEMPSEY: Minimization means --

4 MR. LITT: If it can be useful to 

5 providing the intelligence that policy makers need 

6 or to protecting the nation against threats, then 

7 yes, we keep it for the required period.

8 MR. WIEGMANN: So again, to make it 

9 more concrete, if it's a terrorist overseas, he is 

10 calling a number in the United States that belongs 

11 to a U.S. person, we want to keep that 

12 information. It is incidental, the fact that 

13 we're getting the U.S. person number and we're 

14 targeting that non-U.S. person overseas, but he's 

15 calling Minneapolis, we want to keep that 

16 communication because it's of high interest to us.

17 MR. DE: One point I would add is just 

18 that minimization refers to steps in the process, 

19 everything from collection to review to 

20 dissemination. And so I think we're talking about 

21 one element here, and to retention. And so there 

22 are different stages in the process. 
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1 To disseminate that information a 

2 certain threshold would have to be met and so 

3 forth.

4 MR. DEMPSEY: Yeah, I wish there were 

5 some way, I mean I know it's totally now embedded 

6 both in law and guideline and practice, but 

7 minimization means different things. 

8 Minimization means keep it for five 

9 years and then delete it, minimization means don't 

10 disseminate identifying information, minimization 

11 means delete it unless it's intelligence 

12 information. Those are very different.

13 MR. LITT: Well, they all fall within 

14 the statutory definition of minimization 

15 essentially. I'm going to mangle it a little bit, 

16 but it's procedures that are designed to minimize 

17 the acquisition, retention, and dissemination of 

18 information about unconsenting United States 

19 persons consistent with the need to produce 

20 foreign intelligence information.

21 And so you're going to have different 

22 minimization rules based on the particular 
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1 missions of the agencies. You're going to have 

2 different minimization rules depending on the 

3 nature of the activity you're governing. You're 

4 going to have different minimization rules 

5 depending upon the nature of the information. But 

6 minimization is that entire category of rules.

7 MR. DEMPSEY: But it is a little bit of 

8 a circular definition which means different things 

9 in different contexts. Sometimes it means 

10 you've -- 

11 MR. LITT: I'm not sure I'd say 

12 circular but I would say it means different things 

13 in different contexts.

14 MR. WIEGMANN: It's a balance.

15 MR. BAKER: If I could just real quick 

16 just to emphasize, you know, as Bob was just 

17 alluding to, the FBI does have its own standard 

18 minimization procedures with respect to this type 

19 of activity. I assume you've had access to those. 

20 So anyway, there's a lot on the table 

21 that we just talked about with respect to 

22 minimization, but I would direct you to those as 
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1 well in terms of understanding the FBI's role.

2 MR. MEDINE: Judge Wald.

3 MS. WALD: When a U.S. person 

4 information that's been, quote, incidentally 

5 acquired and kept for legitimate reasons or 

6 whatever in the base is disseminated to foreign 

7 governments, as is permitted under certain 

8 circumstances, it said that it's usually masked. 

9 I think it would be useful for public 

10 consumption to know what the masking process 

11 entails, and in what circumstances it isn't 

12 masked, and whether or not the different agencies 

13 can use different criterias for masking or it's 

14 all centralized by Justice or the Attorney 

15 General's provision.

16 MR. DE: Well, I can speak just for 

17 masking generally at NSA, and abstracting from the 

18 second party issue for a moment, is substituting a 

19 generic phrase like U.S. person for the name of 

20 the U.S. person that is actually collected. 

21 And that U.S. person is a legal term. 

22 Obviously that means an individual or it could 
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1 mean a U.S. company or firm. 

2 I don't think there's a centralized 

3 process. That's how we do it at NSA. I think 

4 that's how other agencies do it as well.

5 MS. WALD: But different agencies 

6 decide how to interpret their own criteria as to 

7 what should be masked and what shouldn't? 

8 MR. LITT: It's part of the, in the 702 

9 context it's part of their minimization 

10 procedures.

11 MS. WALD: Well, so what does that tell 

12 me? No, I mean specifically as to whether or not 

13 in what circumstances it's not masked, that's up 

14 to each agency, or not? 

15 MR. LITT: Yeah, it's done on an agency 

16 by agency basis.

17 MR. WIEGMANN: But generally speaking, 

18 I think the minimization rules of each agency 

19 generally would not permit you to disseminate U.S. 

20 person information where that is not either 

21 foreign intelligence or necessary to understand 

22 that foreign intelligence. So in other words --
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1 MR. DE: Or evidence of a crime.

2 MR. WIEGMANN: Or evidence of a crime 

3 for FBI. 

4 So in other words, if I need to, if 

5 it's Joe Smith and his name is necessary if I'm 

6 passing it to that foreign government and it's key 

7 that they understand that it's Joe Smith because 

8 that's relevant to understanding what the threat 

9 is, or what the information is, let's say he's a 

10 cyber, malicious cyber hacker or whatever, and it 

11 was key to know the information, then you might 

12 pass Joe Smith's name. 

13 If it was not, if it was incidentally 

14 in the communication but was not pertinent to the 

15 information you're trying to convey, then that 

16 would be deleted. It would just say U.S. person. 

17 It would be blocked out. 

18 So they were in communication with, and 

19 it would just say U.S. person. So that's 

20 essentially how it works I think more or less in 

21 all the agencies. Is that a fair description, 

22 Raj?
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1 MR. DE: Yeah, the basic parameters for 

2 FISA collection are articulated in the statute, 

3 the big principles of necessary to understand 

4 foreign intelligence or evidence of a crime. And 

5 then that's effectuated through the minimization 

6 procedures that each agency has. That's for 12333 

7 collection. It's articulated, as Bob mentioned, 

8 in 12333.

9 MS. WALD: With those last subpart, 

10 would those, just take NSA as an example, would 

11 those mask criteria also include foreigners, 

12 non-U.S. person's information? 

13 I mean suppose the government of 

14 Romania asks some question which might require a 

15 Rumanian non-targeted person who's in your PRISM 

16 base, would these masking procedures, etcetera, 

17 apply there too or are they just for U.S. persons?

18 MR. DE: In today's rule, masking 

19 procedures are for U.S. persons because they are 

20 derivative of the constitutional requirement, the 

21 minimization procedures that need to conform with 

22 the constitutional parameters for U.S. persons.
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1 MS. WALD: So it would be up to the 

2 agency to decide whether they thought it was right 

3 or wrong to give that information to a foreign 

4 government?

5 MR. DE: I think there's two points to 

6 mention. One is no information would ever be 

7 disseminated unless it had foreign intelligence 

8 value.

9 MS. WALD: No, I know. 

10 MR. DE: That's the entire point of 

11 disseminating that information.

12 MS. WALD: But having made that 

13 decision in terms --

14 MR. DE: If I may continue. The second 

15 point is that I think what the President has 

16 directed the DNI to examine in the PPD is what 

17 protections could be extended to non-U.S. persons. 

18 That's the study.

19 MS. WALD: And that's what you're 

20 working on? 

21 MR. DE: That's the issue we're 

22 evaluating now.
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1 MR. BAKER: One quick comment though. 

2 If I'm not mistaken, if you look in 50 USC 1806, 

3 which is Title I of FISA but I think also applies 

4 to Section 702, it says, and I don't think it 

5 restricts it with respect to U.S. person or 

6 non-U.S. person, that no federal officer or 

7 employee can disclose, can use or disclose 

8 information at all except for a lawful purpose. 

9 So the information could only be 

10 disclosed for a lawful purpose. And I believe 

11 that's across the board.

12 MS. WALD: I don't have anything more. 

13 MS. COLLINS COOK: I wanted to make 

14 sure I understood though both Judge Wald's 

15 question and the response. 

16 I understood her to be asking under 

17 what circumstances dissemination could be made to 

18 a foreign government. 

19 Are there separate agreements and 

20 procedures that might govern in that instance or 

21 are analysts able to simply decide they would like 

22 to provide foreign intelligence information to 
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1 foreign governments?

2 MR. DE: At least our procedures, our 

3 publicly available procedures have provisions that 

4 address sharing with second party partners. I 

5 don't have at my fingertips the details, but I can 

6 certainly get back to you on that. But they are 

7 now public and articulate the circumstances under 

8 which information can be shared with second party 

9 partners. Those procedures are approved by the 

10 FISC annually.

11 MR. LITT: I think that the critical 

12 point is that these are part of the minimization 

13 procedures that have to be approved by the FISA 

14 court to the extent we're talking again about 

15 Section 702.

16 MS. WALD: The minimization procedures 

17 are only for U.S. persons, aren't they?

18 MR. LITT: Yes, that's right.

19 MS. WALD: But I was talking --

20 MR. LITT: But there are general rules 

21 about when we can share FISA information.

22 MR. MEDINE: All right. Well, I want 
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1 to thank the panel very much for spending a fair 

2 amount of time with us today and discussing these 

3 issues in a public setting and we appreciate it. 

4 And we'll take a short break and then 

5 we'll resume at eleven o'clock with our second 

6 panel. Thank you.

7 (Off the record)

8 MR. MEDINE: We're now ready to begin 

9 our second panel, and we are very pleased to be 

10 joined by Laura Donohue, who's a Professor of Law 

11 at Georgetown University Law School, Jameel 

12 Jaffer, for a return engagement, Deputy Legal 

13 Director at the ACLU, Julian Ku, who's a Professor 

14 of Law at Hofstra University, and Rachel 

15 Levinson-Waldman, who is Counsel for Liberty and 

16 National Security Program at the Brennan Center 

17 for Justice, and each will make a brief set of 

18 remarks, if you want to start.

19 MS. DONOHUE: Sure. Thank you very 

20 much for the opportunity to be here today. I'm 

21 looking forward to the discussion on 702. 

22 I'd like to confine my remarks to four 
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1 central areas, just my initial remarks, and raise 

2 statutory and constitutional concerns. 

3 First is with regard to targeting. I'm 

4 particularly concerned about four areas here. 

5 First is the inclusion of information about 

6 targets, and not just to or from targets. 

7 Second is the burden of proof regarding 

8 whether somebody is a U.S. person or not.

9 Third is with regard to the burden of 

10 proof regarding the location of the individual. 

11 That is, if the NSA in either instance does not 

12 confirm, does not actually know where they are, 

13 the assumption that is built into the minimization 

14 and targeting is that it is neither a U.S. person, 

15 nor are they domestically located. And there is 

16 no affirmative duty for due diligence on the NSA 

17 to actually check their databases to find out if 

18 that individual is or is not a U.S. person and is 

19 or is not in the United States. And then the 

20 implications for the right to privacy. 

21 In the second area on the post22 targeting analysis, I'm particularly concerned 
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1 about the role of FISC, that it's severely 

2 circumscribed and that we're having warrantless 

3 searches. 

4 So in the last panel we heard about 

5 that moment at which the information is obtained 

6 is not a search because it's foreign intelligence 

7 and there's an exception for the gathering of the 

8 intelligence. 

9 But when information is then used for 

10 criminal prosecution, then at that point when the 

11 data is searched, if it were a case where if I 

12 were, say, speaking with a mobster in the United 

13 States and they happened to overhear incidental to 

14 my communications that I was engaged in other 

15 criminal activity, they would have to go to a 

16 court to obtain a warrant to then put a wiretap on 

17 my phone and listen to the content of my 

18 communications.

19 In this situation they don't do that 

20 and then they find that individuals are implicated 

21 in criminal activity and refer it for criminal 

22 prosecution. 
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1 And I would be happy to address the 

2 2002 Foreign Intelligence Surveillance Court of 

3 review opinion that addressed this aspect, but it 

4 was with regard to Title I where there was 

5 probable cause that had already been established 

6 that the target in that case was a foreign power, 

7 an agent of a foreign power.

8 In this particular case, the individual 

9 is not themselves the target of any investigation 

10 and so the prerequisite Fourth Amendment threshold 

11 has not been met.

12 The third area is the retention and the 

13 --

14 MS. COLLINS COOK: Can you slow down 

15 just a bit? I can't keep up. Thank you. 

16 MR. MEDINE: And we also have a court 

17 reporter who's probably her fingers are slowing 

18 down.

19 MS. DONOHUE: Sorry, I beg your pardon. 

20 I realize we only have a few minutes, and I also 

21 have written remarks which I'll be submitting.

22 MS. COLLINS COOK: I have reviewed 
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1 them. Thank you. I've reviewed what you've 

2 submitted thus far. 

3 MS. DONOHUE: Right. So I will be 

4 submitting on these particular points following 

5 the hearing.

6 On the third area, the retention and 

7 the dissemination of data, and this came up with 

8 Judge Wald's question on the previous panel, there 

9 are a number of exceptions in terms of when the 

10 information itself has to be expunged. 

11 The foreign intelligence information 

12 exception I would direct your attention to. It's 

13 not defined in either Section 702 specifically, or 

14 in the minimization or targeting procedures. 

15 It is, however, defined in FISA to 

16 include any information that would be helpful for 

17 foreign affairs, which would include economic 

18 information, it would include political 

19 information, it would include a whole range of 

20 data. 

21 The retention, dissemination for 

22 criminal prosecution, I've raised the Fourth 
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1 Amendment concerns. We're starting to see now in 

2 courts what's called parallel construction where 

3 individuals where information has come from 

4 intelligence agencies' programs, is then passed on 

5 to law enforcement, who then must create a 

6 parallel trail for probable cause, but the actual 

7 tip or initial indication of criminal activity 

8 came from intelligence. 

9 And it essentially covers the traces 

10 that this initially arose within FISA or within 

11 Section 702, and I have increasing concerns, 

12 certainly as a scholarly matter, about the growth 

13 of parallel construction. 

14 The client attorney privilege you had 

15 already mentioned in the last panel. That 

16 continues to be, I think, an area of some concern, 

17 not just because it's, not just in the post18 indictment stage but in terms of all 

19 communications with attorneys prior to and in the 

20 context of the interception of content.

21 The retention of encrypted 

22 communications was not mentioned in the last 
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1 panel. All encrypted communications are retained 

2 according to NSA documents, as well as the 

3 technical barriers. If there are technical 

4 barriers they also will simply keep the 

5 information.

6 The other aspects of this have to do 

7 with multiple databases and CIA access, which I 

8 was surprised you didn't have the General Counsel 

9 of the CIA on the last panel. We now understand 

10 from NSA documents that the CIA has a separate set 

11 of minimization procedures and also uses Section 

12 702. And I think that's important to take a look 

13 at what those procedures are, both the targeting 

14 and the minimization. 

15 Finally, the fourth area that I'd just 

16 like to raise is the First Amendment concerns that 

17 I have. As has been well-recognized in the 

18 judicial system, First and Fourth Amendments often 

19 travel hand in hand, especially in national 

20 security when political matters are on the line. 

21 And in this particular instance not 

22 only do we have a general First Amendment concern 
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1 but we know that if individuals visit IP 

2 addresses, for instance, that have been associated 

3 with particular targets, then their 

4 correspondence, communication, emails, etcetera, 

5 and other information is also retained. 

6 What if that IP address is Al Jazeera, 

7 let's say? What if that IP address happens to be 

8 a media or a news site that's been associated with 

9 a particular area of concern? Then I think there 

10 are also First Amendment implications that follow 

11 from that. 

12 So in conclusion I'd be happy to talk 

13 in more detail about each of these areas, the 

14 targeting, the post-targeting analysis, the 

15 retention and dissemination of data, and the final 

16 First Amendment concerns.

17 MR. MEDINE: Thank you very much. 

18 Mr. Jaffer.

19 MS. DONOHUE: Thanks.

20 MR. JAFFER: Thanks for the opportunity 

21 to appear before the Board. 

22 The ACLU's view, as you already know, 
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1 is that Section 702 is unconstitutional. The 

2 statute violates the Fourth Amendment because it 

3 permits the government to conduct large scale, 

4 warrantless surveillance of Americans' 

5 international communications, communications in 

6 which Americans have a reasonable expectation of 

7 privacy.

8 In our view, the statute would be 

9 unconstitutional even if the warrant requirement 

10 didn't apply because the surveillance it 

11 authorizes is unreasonable. 

12 As I discuss in more length in my 

13 written testimony, the statute lacks any of the 

14 indicia of reasonableness that the courts have 

15 looked to in upholding other surveillance 

16 statutes, including Title III and FISA. 

17 But the point that I would like to 

18 emphasize today is that even leaving the 

19 constitutionality of the statute to the side, the 

20 government is claiming and exercising more 

21 authority than the statute actually gives it. 

22 I say that for three reasons. First, 
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1 while the statute was intended to augment the 

2 government's authority to acquire international 

3 communications, the NSA's minimization and 

4 targeting procedures give the government broad 

5 authority to acquire purely domestic 

6 communications as well. 

7 That's because the NSA's procedures 

8 allow the agency to presume that its targets are 

9 foreign, absent specific evidence to the contrary, 

10 and because the procedures don't require the 

11 government to destroy purely domestic 

12 communications obtained inadvertently. 

13 Instead, they permit the agency to 

14 retain those communications when they're believed 

15 to contain foreign intelligence information, a 

16 phrase that is defined very broadly. 

17 Second, while the statute was intended 

18 to give the government authority to acquire 

19 communications to and from the government's 

20 targets, the NSA's procedures also permit the 

21 government to obtain communications that are 

22 merely about those targets. 
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1 And that practice, in my view, finds no 

2 support in the language of the statute or in the 

3 statute's legislative history. But it's a 

4 practice that has profound implications for 

5 individual privacy. 

6 In order to identify the communications 

7 that are about its targets, the government has to 

8 inspect every communication. To endorse the 

9 practice of about surveillance is to say that the 

10 government can surveil literally everyone, or at 

11 the very least that it can surveil every 

12 communication in and out of the country. 

13 Finally, while Section 702 prohibits 

14 reverse targeting, the NSA's procedures authorize 

15 the government to conduct so-called back door 

16 searches, searches of communications already 

17 acquired under the FAA using selectors associated 

18 with particular known Americans. 

19 Given the absence of any meaningful 

20 limitation on the NSA's authority to acquire 

21 international communications under Section 702, 

22 it's likely that the NSA's databases already 
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1 include the communications of millions of 

2 Americans. 

3 The NSA's procedures allow the NSA to 

4 search through those communications and to conduct 

5 the kind of targeted investigations that in other 

6 contexts would be permitted only after a judicial 

7 finding of probable cause.

8 And if I have thirty more seconds I 

9 would like to make just one final point. Today 

10 we're focused on Section 702, but it's important 

11 to understand that Section 702 is merely one 

12 expression of a broader philosophy.

13 Yesterday the Washington Post reported 

14 that the NSA has built a surveillance system 

15 called MYSTIC capable of recording all of a 

16 country's phone calls, allowing the NSA to rewind 

17 and review conversations as long as a month after 

18 they take place. 

19 MYSTIC is the logical endpoint of the 

20 arguments that the government is making here 

21 today. So the stakes and the conversation that 

22 we're having today are very high. It's very 
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1 difficult to believe that democratic freedom would 

2 survive for long in a system in which the 

3 government has a permanent record of every 

4 citizen's associations, movements, and 

5 communications. Thank you.

6 MR. MEDINE: Thank you. Professor Ku.

7 MR. KU: Thank you, and thanks also for 

8 the opportunity to appear before the Board today. 

9 I just want to remind -- I have a 

10 different view I think from most of the panelists, 

11 and I apologize for not getting my remarks ahead 

12 of time.

13 I just want to remind the Board of two 

14 under-emphasized points of constitutional law that 

15 I think should frame our understanding of the U.S. 

16 government's surveillance practices under Section 

17 702. 

18 I mean first, it is important to 

19 remember that Section 702 and FISA itself need to 

20 be interpreted and understood against the history, 

21 and tradition, and the background of the 

22 President's broad, inherent executive power under 
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1 the Constitution to conduct electronic 

2 surveillance of foreign governments and foreign 

3 agents, especially overseas. 

4 Second, although we often speak loosely 

5 of the Fourth Amendment's limitations on this 

6 presidential foreign surveillance power, it's 

7 worth noting that courts have repeatedly upheld 

8 wide-ranging, warrantless U.S. government 

9 surveillance overseas, even of U.S. citizens. 

10 So these two constitutional 

11 observations should frame any legal assessment of 

12 Section 702 and FISA in general. 

13 If you keep in mind the background and 

14 where we're coming from rather than where we are, 

15 702 is not an ineffectual attempt to regulate 

16 lawless executive conduct, as the critics would 

17 have it. 

18 In actuality, Section 702 almost 

19 certainly requires more limitations than are 

20 actually required by the Constitution and may 

21 even, although I'm not taking that position, but 

22 could in some circumstances encroach on the 
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1 President's foreign affairs powers to conduct 

2 foreign intelligence activities.

3 So let me just briefly elaborate on 

4 these two claims about constitutional law, which 

5 I'm sure some folks might disagree with, but this 

6 is not a dispute that U.S. presidents have long 

7 exercised the power under the Constitution to 

8 conduct foreign intelligence, and this 

9 uncontroversially flows from the President's role 

10 as the chief of foreign affairs under the 

11 Constitution. And almost every court considering 

12 the question has concluded that the President, has 

13 agreed that the President possesses an inherent 

14 constitutional authority to conduct foreign 

15 surveillance. And this is undisputed by any 

16 court. 

17 In other words, there does not need to 

18 be statutory authorization for the President to 

19 engage in foreign surveillance.

20 Prior to the enactment of FISA in 1978, 

21 the executive branch claimed, and the courts did 

22 not dispute that it possessed a broad 
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1 constitutional power to conduct surveillance for 

2 foreign intelligence purposes, even inside the 

3 United States and usually without a warrant. 

4 So prior to the enactment of Section 

5 702 and its predecessors, the executive branch 

6 claimed a constitutional power to conduct 

7 warrantless surveillance in foreign countries for 

8 foreign intelligence purposes, whether or not that 

9 surveillance included a U.S. citizen who was 

10 physically overseas. 

11 So given this history I'd ask the Board 

12 to keep in mind that Section 702 and its 

13 predecessors placed more constraints on the 

14 executive branch's conduct of overseas foreign 

15 intelligence gathering than has ever been imposed 

16 in prior, in the past. 

17 You might conclude that we need even 

18 more constraints, but we should not kid ourselves 

19 that existing constraints or even more constraints 

20 as proposed by some other folks, are consistent 

21 with historical practice and tradition and moves 

22 us further toward constraints. 
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1 As to my second point, I do not believe 

2 the Fourth Amendment imposes limitations on 

3 foreign intelligence as strict as those employed, 

4 imposed by Section 702. And let me just briefly 

5 explain the two reasons why.

6 First, it is very clear the Fourth 

7 Amendment does not apply to non-U.S. citizens and 

8 when they are outside the territory of the United 

9 States. And the Supreme Court confirmed this in 

10 the 1990 decision of The United State versus 

11 Verdugo-Urquidez. 

12 So foreign citizens or the surveillance 

13 of foreign citizens outside of the United States 

14 is completely unconstrained by the Fourth 

15 Amendment. 

16 Second, the courts have confirmed that 

17 it's highly unlikely the Fourth Amendment's 

18 warrant requirement applies to surveillance of 

19 U.S. citizens when they're outside of the United 

20 States, especially when the surveillance is 

21 conducted for foreign intelligence purposes. 

22 No court in the United States has held 
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1 that a warrant is required for a search of a U.S. 

2 citizen when they are overseas if that search was 

3 conducted for foreign intelligence purposes. 

4 Some courts like the second circuit 

5 have even held that no warrant is ever required 

6 for an overseas search, while others have relied 

7 on a broader foreign intelligence exception. 

8 So there is further details here about 

9 the reasonableness, and courts have generally 

10 interpreted the Fourth Amendment's reasonableness 

11 requirement very generously in favor of the 

12 government when conducting overseas searches. 

13 Again, in light of this long history 

14 and tradition of the United States conducting 

15 essentially unsupervised foreign intelligence 

16 gathering without any statutory authority, this is 

17 actually the tradition in the U.S. system prior to 

18 the enactment of FISA, then more recently Section 

19 702.

20 So just to conclude, if you look at 

21 Section 702, the government faces a complete ban 

22 on the intentional targeting of any United States 
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1 person reasonably believed to be outside of the 

2 United States. And there are other procedural 

3 mechanisms, as you know about. 

4 But I don't believe that actually the 

5 Fourth Amendment would actually require if there 

6 was no Section 702, the Fourth Amendment would 

7 require that the government could not 

8 intentionally target a U.S. citizen overseas and 

9 their communications.

10 So let me just conclude, I believe 

11 Section 702 should be understood as a sensible 

12 compromise between privacy interests and the 

13 continuing need to conduct aggressive foreign 

14 intelligence gathering. Congress has given its 

15 blessing to broad-based overseas surveillance that 

16 was already occurring pursuant to the President's 

17 inherent constitutional power. 

18 Congress has now imposed limitations on 

19 those activities that go beyond what I believe the 

20 Fourth Amendment requires, but I think that's a 

21 small price to pay, and many of us agree, to 

22 minimize privacy intrusions into Americans' 
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1 overseas communications. And the courts are 

2 involved to provide oversight.

3 This is the type of political 

4 compromise and cooperation between different 

5 parties and different branches of government that 

6 we always wish, we always say we want, and so I 

7 think we should applaud it rather than condemn it.

8 MR. MEDINE: Thank you. 

9 Ms. Levinson-Waldman.

10 MS. LEVINSON-WALDMAN: Thank you, of 

11 course, for having me here. I have a few brief 

12 comments and then I hope we'll also have a chance 

13 at some point potentially to respond to comments 

14 that were made during the first panel or during 

15 this panel.

16 So I'm just going to focus briefly on 

17 two primary issues that are reflected in my 

18 written submission for now.

19 First, I know of course that the Board 

20 is particularly interested in whether this about 

21 collection complies with the letter or spirit of 

22 Section 702. And based on the structure of the 
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1 statute, we believe that it doesn't. 

2 Briefly, there are two main 

3 restrictions reflected in Section 702 on the 

4 collection of communications. So that would be 

5 the first, the acquisition cannot target U.S. 

6 persons or persons known to be within the United 

7 States. This is a geographic or nationality and 

8 residence restriction.

9 And second, that the purpose of the 

10 acquisition must be to acquire foreign 

11 intelligence information. And that's basically a 

12 content restriction. What that means is that the 

13 content of the communications that can be picked 

14 up by electronic surveillance is regulated by the 

15 foreign intelligence restriction, while the class 

16 of people who are subject to electronic 

17 surveillance is regulated by the targeting 

18 restrictions. 

19 When communications that are about a 

20 target are collected, we believe sort of the what 

21 and the who of the collection are conflated, and 

22 that that's contrary to the clear structure of the 
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1 statute. 

2 And we know that the results of the 

3 collection, our intention with the foreign 

4 intelligence requirement of the statute, that is, 

5 if communications that merely mention certain 

6 targets are collected then we know that 

7 significant quantities of communications that 

8 contain no foreign intelligence information 

9 whatsoever are acquired, which would appear to 

10 undermine the significant purpose requirement in 

11 the statute. 

12 And of course this has been confirmed 

13 in the 2011 FISC opinion that was referred to 

14 that's been declassified. We learn in fact that 

15 the NSA does acquire tens of thousands of wholly 

16 domestic communication in the course of conducting 

17 that about collection. 

18 And so for those reasons we do think 

19 that the about collection is contrary to the 

20 meaning and the structure of the statute.

21 And second, let me briefly mention one 

22 of the main contributions I think the Board can 
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1 make as part of its review, and I think that some 

2 of these questions came out in the first panel, 

3 which is to shed more light on some of the ways 

4 that Section 702 is being used. 

5 It appears that what we don't know 

6 about Section 702, certainly for the public, still 

7 outweighs or outnumbers what we do know. 

8 Obviously there will always be things 

9 that will be properly classified and kept secret, 

10 but it seems that there are many unanswered 

11 questions that the Board is in a position to help 

12 answer, help shed some light on. 

13 So those questions would include 

14 certainly questions about how targets, and 

15 selectors, and key words are used. Some of those 

16 were answered in the first panel, but I think some 

17 of those answers also raised more questions. 

18 There has been the suggestion, the 

19 strong suggestion from the 2011 minimization 

20 procedures that all encrypted communications can 

21 be retained by virtue of their being encrypted, 

22 and finding out if that, in fact, is true. And if 
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1 not, if the PCLOB can obtain and provide 

2 additional information about that provision.

3 And finally, and this is something that 

4 Laura mentioned as well, that domestic 

5 communications can be shared with law enforcement 

6 agencies if they are reasonably believed to 

7 contain evidence of a crime that has been, is 

8 being, or is about to be committed. 

9 In addition to raising, I think, a host 

10 of constitutional issues at the very least, and 

11 practical issues, one of the things that we don't 

12 know is whether there are minimum standards for 

13 how severe, for instance, such a crime has to be 

14 in order to share this information, which of 

15 course has been collected without a warrant. 

16 So I hope that the answers to some of 

17 these questions also will come out during this 

18 process. Again, thank you for the opportunity to 

19 address the Board.

20 MR. MEDINE: Great, thank you very much 

21 for your opening statements. I'm going to ask you 

22 some questions but any panelist should feel free, 
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1 I may ask them to a specific person but anyone 

2 should feel free to jump in.

3 Professor Ku, you talked about the 

4 limited applicability of the Fourth Amendment to 

5 overseas collections, and maybe, and suggesting 

6 there's certainly no warrant requirement and a 

7 very generous reasonableness standard. 

8 One question I have is the collections 

9 that we're talking about under 702 technically are 

10 happening in the United States. That is, the 

11 electronic communications provider is in the 

12 United States while admittedly the target is 

13 outside of the United States. Is that a 

14 distinction that you think has any constitutional 

15 significance? 

16 MR. KU: That's a great question. I 

17 mean I think it reflects the difficulty of this, 

18 which is the technology is changing our, the way 

19 the Fourth Amendment was interpreted in some of 

20 these older cases, right. 

21 So in the classic Fourth Amendment 

22 overseas case it was the guy searching through the 
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1 house or the apartment physically overseas of the 

2 U.S. citizen, or of the phone call that occurred 

3 on the foreign networks, right, in the foreign 

4 country. 

5 Here we have this kind of weird 

6 situation where you have phone or communications 

7 sort of transiting through the United States. And 

8 I do agree that that might raise a harder Fourth 

9 Amendment issue, but I do think that the larger 

10 thing to keep in mind is that the geography 

11 matters because if there's a foreign person on the 

12 other side of the line, so to speak, that's I 

13 think in part the way the communication is an 

14 international communication. It has different 

15 implications for that perspective. 

16 But I do agree that the Fourth 

17 Amendment, the territorial aspect of the Fourth 

18 Amendment would be less significant in that 

19 context. 

20 I think the broader point though is 

21 that the courts have been very generous, both 

22 domestically and internationally about 
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1 surveillance conducted for foreign intelligence 

2 purposes. 

3 So even, so the territorial distinction 

4 was something that FISA created, because prior to 

5 that I think FISA, the foreign intelligence 

6 gathering occurred both domestically and 

7 internationally, and the fact that it was for 

8 foreign intelligence was what mattered. 

9 FISA has created this sort of 

10 territorial division, which I think is becoming 

11 less important with the changes in the types of 

12 communication we have.

13 MS. DONOHUE: If I may add to that. 

14 You know, Professor Ku brings up the exception for 

15 foreign intelligence gathering for purposes of 

16 surveillance. That's very different from the 

17 acquisition of information for purposes of 

18 prosecution. And here courts have very clearly 

19 ruled that even in cases of national security or 

20 domestic security, a warrant is required. 

21 This is U.S. vs. U.S. District Court, a 

22 case handed down in 1972 in which there were three 
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1 individuals conspiring to bomb the CIA. And the 

2 court said that the executive branch, quoting 

3 Justice Brownell (phonetic) and others said the 

4 court -- the executive branch is not a 

5 disinterested neutral observer and cannot be put 

6 in the position of having to determine whether a 

7 search will be reasonable. They have to seek a 

8 third opinion on that. 

9 In Katz as well in 1967, some of the 

10 justices in that case, Justice Byron White said, 

11 went beyond the decision and said basically we 

12 should not require a warrant procedure for the 

13 magistrate's judgement if the President of the 

14 United States, or his chief legal officer, the 

15 Attorney General, has considered the requirements 

16 of national security and authorized electronic 

17 surveillance as reasonable. 

18 And other justices responded very 

19 angrily to that statement. Justice William 

20 Brennan, Justice William O. Douglas, they pointed 

21 out that there was a conflict of interest here. 

22 They said, look, neither the President nor the 
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1 Attorney General is a magistrate. In matters 

2 where they believe national security may be 

3 involved they are not detached, disinterested, and 

4 neutral as a court where the magistrate must be.

5 The Foreign Intelligence Surveillance 

6 Court of Review has also considered whether or not 

7 information obtained from FISA warrants could be 

8 used in the event of a prosecution. 

9 In the case that brought down the wall 

10 in 2002, the court looked to Title I of FISA where 

11 probable cause had been established that an 

12 individual was a target, sorry, that the target 

13 was a foreign power or an agent of a foreign power 

14 and said in that case you have this review that 

15 has gone on specific to that target by the Foreign 

16 Intelligence Surveillance Court. 

17 In Section 702, individuals who may be 

18 brought up on criminal charges are not themselves 

19 the target of any investigation. No probable 

20 cause has been established for their involvement 

21 as a foreign power or an agent of a foreign power. 

22 Instead, once the content of 
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1 conversations are obtained, then the government 

2 may go through, analyze the information and look 

3 for evidence of criminal activity, which can then 

4 bring them into a courtroom to face criminal 

5 charges, and at no point is this warrant 

6 requirement, which the court has held for domestic 

7 security cases. So here you have a U.S. person on 

8 U.S. soil and the court has said in U.S. vs. U.S. 

9 District Court, you have to have a warrant in that 

10 situation. 

11 So to use the veneer of, well, we're 

12 just collecting foreign intelligence and the 

13 executive branch has the right to do this under 

14 Article II, yes, perhaps the executive branch can 

15 gather intelligence but if there are criminal 

16 penalties associated then you also need to meet 

17 the requirements of the Fourth Amendment for U.S. 

18 persons. 

19 MR. MEDINE: I'd like to give Professor 

20 Ku a chance to respond, although I can do it on my 

21 next round. 

22 MR. KU: Okay. Well, I mean I'm not 
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1 going to go through all the cases. And I think 

2 that the way I understand this is the way you 

3 think about this is the foreign intelligence 

4 purpose, right. The foreign intelligence purpose 

5 has been sort of an important part about whether 

6 there's an exception to the warrant requirement, 

7 or if there's a foreign intelligence purpose, 

8 sometimes a primary purpose, or a purpose, 

9 depending on how you define it. And then there's 

10 the, whether that gives a question of 

11 reasonableness, where there's legitimate 

12 government interests that goes to the 

13 reasonableness. 

14 The reason I'm emphasizing the 

15 significance of the foreign intelligence purpose 

16 aspect of this and the territorial aspect of this 

17 is because I do think it's relevant to analysis. 

18 This is, in fact, what's going on here 

19 is a collision between our law enforcement and 

20 intelligence goals here, right. So the U.S. 

21 government is gathering a lot of information for 

22 foreign intelligence purposes. It's also using 
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1 sometimes that information. 

2 Some of that information is, although 

3 not I think so far frequently, leaking into 

4 criminal prosecutions. But if we start from the 

5 perspective of foreign intelligence gathering, 

6 right, this is Article II, this is where we start, 

7 and this is something that's largely been 

8 unregulated. 

9 What's changed is that the nature of 

10 communications have changed so that many of the 

11 communications that were essentially gathered 

12 unsupervised for foreign intelligence purposes are 

13 being sort of routed in a different way so that it 

14 falls within, technically speaking, what we might 

15 consider a different sort of format, which then 

16 looks more like a classic Fourth Amendment case.

17 But I think that the larger point I'm 

18 trying to emphasize here is that this is, there 

19 are real Fourth Amendment issues here with respect 

20 to law enforcement. 

21 But this is also about foreign 

22 intelligence gathering. It's not just a total 
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1 sham. It's not as if the government is claiming 

2 here that this whole thing is a scheme in order 

3 just to gather information for criminal 

4 prosecution. 

5 Essentially they're both interests here 

6 that are part of this analysis. And that legal 

7 analysis with respect to foreign intelligence 

8 gathering needs to be considered and it should 

9 frame our analysis of what's going on here as 

10 well.

11 MS. BRAND: Thank you. So it's a good 

12 segue actually what you said, Professor Ku, 

13 because I want to understand, Professor Donohue, 

14 what you were saying, and I may not have taken the 

15 best notes, so forgive me. 

16 But walk me through the argument, 

17 because a second ago you said that you were making 

18 a distinction between collection for foreign 

19 intelligence purposes and I think you said 

20 collection that was focused, was for the purpose 

21 of prosecution.

22 So are you, is it your view that 702 
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1 collection is for the purpose of prosecution? 

2 MS. DONOHUE: It's one of the two 

3 stated purposes for which the information can be 

4 retained once it is collected. So it can be --

5 MS. BRAND: But that's different. But 

6 I'm asking about you said collected for the 

7 purpose of prosecution, I thought. I mean what 

8 is, I guess what I'm trying to get at is, is this 

9 distinction between foreign intelligence purpose 

10 and criminal purpose relevant at the collection 

11 stage only, or at all stages, or what? Help me 

12 understand what you're talking about. 

13 MS. DONOHUE: Yeah, so in the previous 

14 panel Brad addressed this point. He mentioned 

15 that in the context of it's the moment at which 

16 the information's obtained that a search occurs, 

17 right. 

18 So if we do our Fourth Amendment 

19 analysis at that point, then the moment at which 

20 you're obtaining the wiretap evidence is the 

21 search, at which point you would require a warrant 

22 under these. 
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1 And I believe Professor Ku's point is, 

2 no, you don't need a warrant if it's for foreign 

3 intelligence purposes at the moment you acquire 

4 the information with the international nexus to 

5 it. And he's citing Verdugo-Urquidez where there 

6 was no nexus to the United States and a search 

7 occurred overseas. 

8 The problem is in the case, and this 

9 gets back to my first point, which I apologize if 

10 I spoke too quickly at the beginning of the panel, 

11 which is with regard to the targeting. If it is 

12 not just information to or from the target, or 

13 held by the target, but any information about or 

14 relating to the target. 

15 And here, it's interesting, I was a 

16 little bit confused by the earlier panel because 

17 according to the actual documents the NSA has 

18 released, the NSA can actually use computer 

19 selection terms and other information such as 

20 words, or phrases, or discriminators to scan 

21 content. 

22 So if it can collect all of the 
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1 international communications and then scan the 

2 content of those communications, then I would 

3 argue that is a search for purposes of the Fourth 

4 Amendment at the point of collection. 

5 MS. BRAND: But let me get to this 

6 distinction though between foreign intelligence 

7 and a criminal purpose, because 702 requires not 

8 only that the collection be a non-U.S. person 

9 abroad but also that there be a foreign 

10 intelligence purpose, that the information be 

11 reasonably believed to be, to collect foreign 

12 intelligence. I'm not quoting the statute. 

13 But doesn't that statutory requirement 

14 suggest that it has to be for a foreign 

15 intelligence purpose? And it might also then 

16 collect evidence of a crime, which then there are 

17 procedures for what to do with that information. 

18 But it seems like you're suggesting 

19 that you think that the collection itself is for a 

20 criminal purpose, and that's what sort of piqued 

21 my interest and I wanted to understand what you 

22 were saying there.
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1 MS. DONOHUE: Sure. So to push on this 

2 a little bit, under FISA to be a foreign power one 

3 is not a U.S. person, right, one is a foreign 

4 power or an agent of a foreign power. Not all of 

5 the agents of a foreign power require criminal 

6 showings, but many of them do. 

7 So to say that this is purely a foreign 

8 intelligence purpose when an individual can be 

9 targeted based on being either a foreign power or 

10 an agent of a foreign power, in which case there 

11 is criminal activity involved and there may be the 

12 element of criminality from the outset. So it's 

13 not as though criminality is not an aspect of the 

14 foreign intelligence gathering generally. 

15 MS. BRAND: Professor Ku, do you have 

16 -- Jameel, it looks like you wanted to respond. 

17 MR. JAFFER: Well, I was just going to 

18 speak to the foreign intelligence exception more 

19 generally, if you want to pursue this.

20 MS. BRAND: Go ahead. Go ahead.

21 MR. JAFFER: Well, so I just want to 

22 caution the Board about starting from the premise 
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1 that there is in fact a foreign intelligence 

2 exception to the warrant requirement. The cases 

3 in which courts have held that there is such an 

4 exception predate FISA. There's arguably one 

5 exception to that, but the vast majority of them 

6 predate FISA. 

7 And so their rationale has been 

8 undermined by practice under FISA over the last 

9 thirty-five years. The rationale for those cases 

10 was in large part that the courts might not be 

11 capable of overseeing collection or surveillance 

12 for foreign intelligence purposes. But the courts 

13 have been doing precisely that now since 1978. 

14 But even if you accept that there is in 

15 fact a foreign intelligence exception to the 

16 warrant requirement, you have to ask the question 

17 of how broad that exception is. 

18 And all of those cases, those pre-FISA 

19 cases, involve cases involved situations in which 

20 there was probable cause to believe that the 

21 target was a foreign agent, the surveillance was 

22 approved personally by the President or the 
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1 Attorney General, and the primary purpose of the 

2 surveillance was to gather foreign intelligence 

3 information. 

4 And Section 702 doesn't include any of 

5 those requirements. So no court has ever approved 

6 a foreign intelligence exception to the warrant 

7 requirement that is broad enough to read Section 

8 702. Section 702 is a broader statute than any 

9 foreign intelligence exception recognized so far 

10 would allow.

11 I think that it may also be important 

12 to emphasize that concluding that the warrant 

13 requirement applies doesn't mean that the 

14 government has to get a warrant before surveilling 

15 legitimate foreign targets. It doesn't mean that 

16 in order to surveil, you know, some suspected 

17 terrorist outside the United States the government 

18 necessarily needs to get a warrant.

19 But at the very least it means that the 

20 government needs to take reasonable measures to 

21 avoid acquiring Americans' communications without 

22 warrants. 
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1 It means it has to not acquire them in 

2 the first place where it cannot acquire them. 

3 When it does acquire them, it has to 

4 destroy the communications that it acquires 

5 relating to U.S. persons.

6 And when in narrow exceptions it 

7 retains those communications, there should be a 

8 back-end warrant requirement so the government 

9 doesn't access Americans' communications without a 

10 warrant. That's what compliance with the warrant 

11 clause would mean.

12 MR. MEDINE: Ms. Cook.

13 MS. COLLINS COOK: So thank you all for 

14 coming. I find these panels to be incredibly 

15 helpful and informative. 

16 Ms. Donohue, I would like to -- 

17 Professor Donohue, I apologize, I'd like to 

18 follow-up on something you mentioned at the very 

19 end of your opening remarks, and that's your 

20 position that 702 raises First Amendment concerns. 

21 I think it's clear from my previous 

22 separate statement on our 215 report that I don't 
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1 necessarily approach the First Amendment analysis 

2 the same way, but what I would find helpful from 

3 you is if you could just describe your approach to 

4 when the First Amendment would be implicated, when 

5 concerns arise, and when something would be 

6 unconstitutional based on First Amendment 

7 concerns. 

8 So for example, would a traditional 

9 wiretap raise First Amendment concerns, and would 

10 it potentially be unconstitutional under First 

11 Amendment concerns? 

12 Would a traditional grand jury subpoena 

13 for bank records or credit card statements that 

14 could reveal payments to lawyers or payments to 

15 various charities or associations, would that 

16 raise First Amendment concerns? Would it be 

17 unconstitutional under the First Amendment?

18 So if you could just walk me through on 

19 the spectrum where you're finding concerns and 

20 where you're finding violations.

21 MS. DONOHUE: Sure. And just to return 

22 back to Ms. Brand's point, I agree with Jameel on 
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1 the analysis about what point it would kick in for 

2 a warrant requirement is the point at which it's 

3 either about the information, because I feel like 

4 I didn't quite answer what you were asking me and 

5 I want to make sure that I do, I answer it. 

6 It's the point at which you're getting 

7 information about that particular individual, 

8 which is a different target, and then you analyze 

9 that information, then at that point I would 

10 believe that the Fourth Amendment warrant 

11 requirement would apply.

12 Okay, so in response to the First 

13 Amendment question, so the courts have recognized 

14 that there is a close link between the First and 

15 the Fourth Amendment. And I frequently find 

16 whether it's in remote biometric identification 

17 systems in view of public space and facial 

18 identification, you know, that there is a First 

19 Amendment context there as well. So it tends to 

20 be in the shadows in the room.

21 In this particular context, the way 

22 that I see it present is with regard to the target 
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1 that is in the statute. It's very clear that the 

2 target cannot be selected --

3 MS. COLLINS COOK: I'm sorry, can you 

4 actually answer the question that I had posed, 

5 which was, for example, starting with a 

6 traditional --

7 MS. DONOHUE: Oh, yeah, so I do not see 

8 a traditional wiretap as implicating First 

9 Amendment. I do not see --

10 MS. COLLINS COOK: Why? 

11 MS. DONOHUE: Because --

12 MS. COLLINS COOK: Even though it 

13 could, for example, reveal the fact that I belong 

14 to the ACLU, or I have called my attorney, or I'm 

15 discussing, you know, private contents and 

16 communications. So why not? 

17 MS. DONOHUE: Because there's a 

18 balancing that occurs with regard to the element, 

19 in this case of probable cause that you have 

20 committed, are committing, or are about to commit 

21 a crime under Title III, in which case having gone 

22 before a neutral, disinterested magistrate, a law 
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1 enforcement officer says, oh, no, I suspect that 

2 Professor Donohue is engaged in this bad activity. 

3 And I think that that balancing test basically 

4 takes that situation out of a First Amendment 

5 context.

6 MS. COLLINS COOK: So let's take a 

7 grand jury, and then a pen register trap and 

8 trace. So a pen register trap trace, there's 

9 definitely no determination, no probable cause. 

10 So does a traditional pen register trap trace, 

11 which would reveal potential phone calls to the 

12 ACLU, to my lawyer, very private, the existence of 

13 potentially private conversations, does that 

14 violate the First Amendment? 

15 MS. DONOHUE: Again, with prior 

16 judicial approval and review, no.

17 MS. COLLINS COOK: Okay. So let's take 

18 a grand jury subpoena which can be issued by a 

19 prosecutor. So in the absence of beforehand 

20 judicial review, does that violate the First 

21 Amendment?

22 MS. DONOHUE: No. I would say --
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1 MS. COLLINS COOK: So what's the factor 

2 --

3 MS. DONOHUE: Well, it's the same for 

4 administrative warrants, I would say in the case 

5 of administrative warrants. Here's where the 

6 tipping point is for me with PRTT, let's take 

7 Section 215 as kind of a bulk metadata collection 

8 program, or Section, what is it, 402, right, for 

9 these bulk collections of pen register trap and 

10 trace type information. 

11 When you have the bulk collection of 

12 information in a way that changes the political 

13 discourse in society, then I think you have a 

14 First Amendment question that arises.

15 MS. COLLINS COOK: Okay. So is if 

16 there is a perception that there is a change in 

17 political discourse, then you have a concern about 

18 a First Amendment? It's not necessarily prior 

19 judicial review, particularized probable cause?

20 I'm just struggling to understand, you 

21 know, at what point there's a First Amendment 

22 implication and at what point there's a First 
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1 Amendment violation, because to me, I think it's a 

2 bit of a sea change to look at either traditional 

3 or really these FISA authorities as violating the 

4 First Amendment. I do think that that's a fairly 

5 novel approach.

6 MR. JAFFER: But to be fair -- to be 

7 fair, the distinction between individualized 

8 surveillance and bulk surveillance is also a bit 

9 of a sea change. And so I think the question is 

10 whether the bulk surveillance, the fact that the 

11 government is now engaged in bulk surveillance, I 

12 mean I understand that there's some dispute over 

13 the vocabulary, but the fact that the government 

14 is engaged in bulk collection or bulk acquisition 

15 of this information makes the First Amendment 

16 relevant in a way that it perhaps wasn't relevant 

17 in the context of individualized surveillance of 

18 the kinds that you were describing.

19 I mean I think that your question 

20 perhaps goes more broadly to the question of 

21 incidental overhears, you know. When the 

22 government defends Section 702, one of the 
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1 government's defenses is that all of this 

2 information is, about Americans is overheard 

3 incidentally. 

4 You know, I go into this in a little 

5 more detail in my written submission, but I don't 

6 think it's fair to call this kind of collection 

7 incidental in any conventional use of the term. 

8 The collection of Americans' information is 

9 entirely foreseeable, and in fact, it was the 

10 purpose of the statute. 

11 If you look at the statements that 

12 administration, then Bush administration officials 

13 made to justify the statute or to advocate for the 

14 statute, they were quite forthright about the 

15 purpose of the statute. And the purpose in their 

16 view was to give the government broader authority 

17 to collect information, collect communications 

18 between people outside the United States, and 

19 people inside the United States. 

20 And obviously there's no illegitimacy 

21 to the government's interest in collecting those 

22 communications. The question is whether there are 
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1 sufficient safeguards in place, but that's why I 

2 say that incidental is probably the wrong word. 

3 But if the government is relying on the 

4 incidental overhear cases from the Fourth 

5 Amendment context, those cases were, involved very 

6 different contexts. Those were cases in which the 

7 surveillance was individualized. It was based on 

8 a probable cause warrant. 

9 The scale of the surveillance of the 

10 incidental collection was much different. And the 

11 fact that there was judicial oversight at the 

12 front-end provided a kind of protection for 

13 incidentally overheard people that doesn't exist 

14 under a statute like 702.

15 MR. MEDINE: Let's give Jim the chance 

16 to ask some questions, then we can come around.

17 MS. DONOHUE: Okay.

18 MR. DEMPSEY: Thanks. Thanks to the 

19 witnesses. 

20 A question for Jameel and for Rachel on 

21 the abouts. What actually is, quoting the words 

22 of the statute, what is the strongest textual 
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1 argument against about surveillance? 

2 Because the statute says the targeting 

3 of persons, never really refers to even the 

4 collection of communications or interception, 

5 etcetera, so if you're collecting something about 

6 somebody, isn't that almost paradigmatically 

7 targeting the person? Where's the text? 

8 MS. LEVINSON-WALDMAN: I mean I think 

9 one of the -- right, there's obviously ambiguity 

10 in the statute in part, and this is one the things 

11 that I mentioned in the written submission is that 

12 target isn't defined. 

13 And I have to say some of the answers 

14 in the first panel, which answered some questions 

15 about target and selectors, I think also opened up 

16 new questions. 

17 I do think the strongest statutory 

18 argument, literally looking at the language, is 

19 what the statute talks about. 

20 So it says here, literally just looking 

21 at 1881 A, subpart A, Attorney General and 

22 Director of National Intelligence may authorize 
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1 jointly the targeting of persons reasonably 

2 believed to be outside the United States to 

3 acquire foreign intelligence information.

4 So as I say, you sort of see 

5 implicitly, but I think you do see implicitly 

6 these two sort of halves of the targeting 

7 requirement, the foreign intelligence requirement 

8 and this kind of nationality and geographic 

9 restriction, and that when what you're doing is 

10 collecting about communications, what you're doing 

11 is kind of adding together, you're kind of 

12 conflating, you're morphing together these 

13 different parts of the statute so that the 

14 targeting has usually been literally thinking 

15 about the facility that's being used --

16 MR. DEMPSEY: Excuse me. The 

17 government has determined that a person is outside 

18 the United States and that collecting information 

19 about that person will yield foreign intelligence.

20 MS. LEVINSON-WALDMAN: Well, but I 

21 think that may be what's suggested by the about 

22 collection, but I think the foreign intelligence 
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1 determination is a separate one, right. 

2 The government identifies these targets 

3 or selectors which have generally been to or from. 

4 And in fact we know, especially from Judge Bates's 

5 opinion that thousands, tens of thousands of 

6 communications are collected using the about 

7 targeting, the about collection, that are wholly 

8 domestic, that have no foreign intelligence value, 

9 which I think undermines an argument that there 

10 has been some determination of foreign 

11 intelligence value there, because to some extent 

12 the results are sort of speaking for themselves.

13 MR. DEMPSEY: Because then you would be 

14 questioning the legitimacy of the to and froms 

15 because they only do abouts about people that they 

16 also do to and froms, so you can't say that the 

17 foreign intelligence determination of the abouts 

18 is illegitimate because then you call into 

19 question the to and from.

20 MS. LEVINSON-WALDMAN: Well, but I 

21 think the to and from is pretty clearly 

22 contemplated by the statute, right? You target a 
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1 person, you are trying to find communications to 

2 or from them, understanding that those will have 

3 foreign intelligence value.

4 MR. DEMPSEY: Let me go to Jameel. 

5 Jameel, what is the best textual argument against 

6 abouts?

7 MR. JAFFER: Right. Well, let me first 

8 I think agree with what I think Rachel was saying 

9 at the outset, which is that the statute I don't 

10 think explicitly forecloses about surveillance or 

11 explicitly authorizes about surveillance. 

12 But I think a fair assessment of the 

13 statutory structure and some of the statutory text 

14 leads to the conclusion that about surveillance 

15 was not contemplated by Congress. And I'll answer 

16 your question.

17 MR. DEMPSEY: The text, yeah.

18 MR. JAFFER: So here are a few aspects 

19 of the statute that I think show that Congress was 

20 contemplating, that the target would, himself or 

21 herself, be the person whose communications were 

22 acquired. 
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1 First, a definition of electronic 

2 surveillance. It says the acquisition of the 

3 contents of any wire --

4 MR. DEMPSEY: This is not electronic 

5 surveillance. 702 explicitly does not cover 

6 electronic surveillance.

7 MR. JAFFER: Well, I think that the 

8 point I'm making is relevant nonetheless.

9 MR. DEMPSEY: Electronic surveillance 

10 definition is irrelevant to 702. It is not -- 702 

11 does not regulate electronic surveillance.

12 MR. JAFFER: I think the point that I'm 

13 trying to make is just that the entire statutory 

14 scheme, both FISA and the FAA, contemplate that 

15 the person who is the target will be the person 

16 whose communications are actually acquired. 

17 If you look at the definition of 

18 aggrieved person, for example, which does apply in 

19 the FAA context, aggrieved person to implicitly 

20 contemplates that the person who will be raising 

21 the claim as an aggrieved person is a person whose 

22 communications are actually acquired. 
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1 And in fact, if you conclude otherwise 

2 what you are concluding is that the target would 

3 be an aggrieved person even if his or her 

4 communications weren't acquired, which I think is 

5 a nonsensical conclusion and one that the 

6 government itself would reject. 

7 But I think it follows from accepting 

8 that about surveillance is contemplated by the 

9 statute. 

10 And if I could just make a sort of 

11 broader point about about surveillance, we have 

12 sort of combed through the legislative history for 

13 discussions of this kind of surveillance, and it's 

14 possible we overlooked something, but we have not 

15 found any exchange in the legislative history 

16 around the FAA that suggests that Congress was 

17 contemplating about surveillance. 

18 To the contrary, when people discuss, 

19 when legislators discuss the kind of surveillance 

20 that would take place under the statute, they 

21 discuss surveillance of the target. 

22 And even on the government panel this 
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1 morning one of the panelists used the example, bad 

2 guy at Google.com, you know, which again is 

3 suggesting that the surveillance that's going on 

4 is of the target himself or herself. 

5 And in defending the statute before the 

6 Supreme Court, the Solicitor General and the 

7 Justice Department more generally characterized 

8 the statute as one that allowed the government to 

9 collect targets' communications. 

10 So you know, I think that this is an 

11 entirely a foreign concept, foreign to the 

12 legislative history and foreign to the text of the 

13 statute. 

14 MR. MEDINE: Thank you. Judge Wald.

15 MS. WALD: Let me pick up on the about 

16 thing and pose one of those terrible 

17 hypotheticals. If you had a to and from, you had 

18 a targeted, a legitimately targeted person and in 

19 the process of collecting information you got, you 

20 came across this email between, I'll be facetious 

21 a bit, the grandmother of one of them to the 

22 grandmother of somebody else saying something 
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1 along the lines of, my grandson was talking to me 

2 and he was telling me all about this wonderful 

3 service he did by plotting, I'm using an extreme, 

4 plotting to blow up a facility kind of thing, I 

5 mean how would you take care of that situation 

6 where you had it between two people who are not 

7 the to and froms? You wouldn't ignore it, would 

8 you, or would you? I mean how would you handle 

9 that if you had no abouts?

10 MS. DONOHUE: I'm not sure whom that's 

11 directed to.

12 MS. WALD: I don't care.

13 MR. MEDINE: Who would you like it 

14 directed to?

15 MS. WALD: What?

16 MR. MEDINE: Who are you asking? 

17 MS. WALD: Well, the two people who've 

18 talked about what about abouts, Mr. Jaffer and 

19 Ms. Levinson-Waldman, I think. 

20 MR. JAFFER: Well, I'm not a hundred 

21 percent sure I understand the question. The 

22 question is, you know, if you were conducting 
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1 about surveillance and you come across evidence of 

2 a terrorist plot, do you really expect them to 

3 ignore it? Then no, I don't, you know. 

4 But that's like asking, you know, if 

5 the government breaks into a home 

6 unconstitutionally and finds evidence of a 

7 terrorist plot, do I expect them to ignore it? I 

8 don't. 

9 But we still need to ask the question 

10 what are the proper limits on the government's 

11 surveillance authority in the first place, and I 

12 think that we need to draw those limits in a way 

13 that's consistent with the Constitution. 

14 I'm not sure that I'm answering your 

15 question.

16 MS. WALD: Well, you are except that 

17 I'm puzzled, too. I'm not sure I know the answer 

18 where, as I say, you had -- maybe that's an 

19 extreme example about where they have a plot, but 

20 where there's actually some foreign intelligence 

21 information which even everybody would agree had 

22 some relevance to a legitimately targeted 
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1 individual, and it's right there, and it's picked 

2 up.

3 MS. LEVINSON-WALDMAN: Then I think I 

4 would echo Jameel's points to some extent and sort 

5 of elaborate to say that I do think that there are 

6 always hypotheticals, presumably for any of these 

7 programs, for Section 702, for Section 215, for 

8 other collection programs that are going on where 

9 there could be some piece of information out there 

10 that might be useful that would be collected by a 

11 program. 

12 I think it's dangerous to build 

13 surveillance programs and to think about the 

14 constitutionality and the practicality based on 

15 hypotheticals, and especially when we know that 

16 there is significant over-collection that occurs 

17 and significant collection of Americans' 

18 communications. 

19 I think the hypotheticals are, may need 

20 to be thought about, but I don't think that they 

21 can drive how we think about the constitutionality 

22 and the statutory implications of the collection.
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1 MS. WALD: In other words, you or 

2 anybody over there wouldn't consider if that 

3 happened, some other means that the government 

4 might have to take that about information and go 

5 to somebody, to some authority and say can we keep 

6 this, can we use this, etcetera, etcetera? 

7 MS. DONOHUE: So what I'm a little bit 

8 confused about, and I did hear the previous panel 

9 say, oh, well, there would be all sorts of 

10 procedural implications if we had to return to a 

11 judge on the Foreign Intelligence Surveillance 

12 Court to get approval to do further monitoring.

13 What I'm a little bit confused about is 

14 if that information was appropriately obtained in 

15 the first place and it indicates that other people 

16 are implicated, why they wouldn't go back for a 

17 Title I electronic search and they would have what 

18 they need for that? 

19 MS. WALD: Well, if it's two 

20 grandmothers, they're probably not -- they're just 

21 chatting. They're probably innocent. All I'm 

22 saying is I guess the only reason I raised it is 
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1 I'm trying myself to figure out are there not some 

2 gray areas here, and wondering if you had any 

3 solutions short of about authority which you find 

4 is too broad, and completely ignoring it? 

5 But let me not use up my whole five 

6 minutes. Thank you.

7 I did want to ask you about, as you 

8 know, the President's review commission said they 

9 wanted to see a warrant, an actual, go get a 

10 warrant for probable cause before you could search 

11 the data using a U.S. person indicator. 

12 My question to you is, and we've heard 

13 some reasons why they think that's very onerous, 

14 including the fact that the President's review 

15 commission's recommendation was it had to be a 

16 probable cause warrant that the person was about 

17 to commit something, do bodily injury, or about to 

18 commit some terrorism crime.

19 My question to you is if you think 

20 there are legitimate, and you do, problems under 

21 the Fourth Amendment with using U.S. person 

22 indicators to surveil the PRISM data, would 
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1 anything short of a probable cause warrant such as 

2 they recommended satisfy you, i.e., I'm just 

3 throwing this out, you know, having, going back 

4 to, say, to the FISA court and having them look at 

5 it to see if it, either post or pre, before they 

6 used it, approving this so-called, you know, 

7 selector, etcetera, that was in fact a reasonable 

8 cause to believe that the person had information 

9 or didn't have information? 

10 MR. JAFFER: I don't think that would 

11 be sufficient. I think that you need a warrant at 

12 the back-end and --

13 MS. WALD: But what kind of a warrant 

14 warrants --

15 MR. JAFFER: A warrant based on 

16 probable cause and --

17 MS. WALD: Probable cause of what? 

18 MR. JAFFER: Well, so I think it could 

19 be foreign intelligence probable cause, although I 

20 hope that the panel will, that the Board will 

21 think about the scope of the definition, the 

22 definitions of foreign agent, foreign power, and 
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1 foreign intelligence information. 

2 But I think that foreign intelligence 

3 probable cause could be sufficient for that 

4 particular process, or obviously criminal probable 

5 cause. 

6 But I also just want to say that I 

7 don't think back-end procedures alone are enough, 

8 no matter how strong they are. And I think that, 

9 you know, I know that the Board can't talk about 

10 the Washington Post report from yesterday, but if 

11 you just take it as a kind of hypothetical, you 

12 know, if you accept that back-end procedures are 

13 enough and that we'll focus solely on the 

14 protections on searching, and dissemination, and 

15 analysis of information in the government's hands, 

16 there's nothing to prevent the government from 

17 recording every phone call, copying every email, 

18 creating a permanent record of everybody's 

19 movements, associations, and communications. And 

20 the only question we'll be asking is when can the 

21 government access it. 

22 But the creation of that kind of 
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1 massive database will have huge implications for 

2 the way that ordinary people operate in society, 

3 both the way that they interact with one another 

4 and the way that they interact with their 

5 government. 

6 People who believe that the government 

7 is surveilling every movement and every 

8 communication, believe justifiably that it's doing 

9 it, will act differently. They won't go to 

10 controversial websites and they won't engage in 

11 controversial communications that are necessary 

12 for any democracy.

13 MS. WALD: I'll save, I know my time is 

14 up. I'll wait for the next round. I have another 

15 question.

16 MR. MEDINE: I want to go back to that 

17 back-end searching, basically the U.S. person 

18 searches, and this really is two questions.

19 One is the government panel asserts 

20 that this is lawfully obtained information and 

21 therefore should be permissibly used without any 

22 further Fourth Amendment implications. And why 
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1 that's not a persuasive argument.

2 And then two, if it's not persuasive, 

3 what is the procedure that you envision? And 

4 again, I think it's different from Professor 

5 Donohue where you're using that U.S. person 

6 information to get more information. You're just 

7 saying let's use the information we've already 

8 collected under some other, under authority for, 

9 say, criminal purposes or foreign intelligence 

10 purposes. 

11 So I guess it's two parts. Why isn't 

12 is already legally usable? And if it's not, what 

13 procedure would you apply to access it? And 

14 that's to any panelists. 

15 MS. DONOHUE: So as a statutory matter 

16 I would come back to the burden of proof with 

17 regard to whether that information that's being 

18 collected on targets, they are indeed U.S. persons 

19 or non-U.S. persons and located outside the United 

20 States. 

21 So here the statute is silent, and I 

22 share Mr. Dempsey's textual analysis of the about 
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1 question. I think the statute is silent there as 

2 well. But in regard that the statute does say 

3 where you know that somebody is a U.S. person, you 

4 know, you have Sections 703 and 704 that you have 

5 to operate under.

6 MR. MEDINE: Again, we're not targeting 

7 the U.S. person, we're targeting a non-U.S. 

8 person, and Congress clearly knew that at the 

9 other end of that phone call could be a U.S. 

10 person and still authorized that kind of 

11 collection without a warrant. 

12 And the question is, why isn't that 

13 sufficient to then say, okay, this information was 

14 lawfully collected, now we can do searches based 

15 on it?

16 MS. DONOHUE: Because it isn't 

17 certain that the person on whom you're collecting 

18 the information really is a non-U.S. person. So 

19 the burden of proof on the NSA is to say, to 

20 establish that this individual is a non-U.S. 

21 person. 

22 But in fact, so the assumption that all 
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1 the collection that's going on currently is of 

2 non-U.S. persons I think is an erroneous one. And 

3 it's one -- and the reason why I think it's 

4 erroneous is because the NSA is under no 

5 obligation to check and see and make sure that 

6 that individual is not a U.S. person. 

7 To the contrary, they have in their 

8 documents they say, well, they may check these 

9 databases, they may check these other databases. 

10 There's no obligation that they do so. 

11 Mr. De in the previous panel referred 

12 to the totality of the circumstances type tests 

13 that say they have two strikes against, four 

14 strikes for, they look at everything. There is 

15 nothing that obliges them to then go back and dig 

16 up more information to find out in that particular 

17 circumstance. 

18 And not only that, but actually if you 

19 look at the requirements for what is required to 

20 positively identify, to conclusively determine it 

21 in the minimization procedures, the bar is 

22 actually significantly high. 
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1 It means that you know their name, you 

2 know their title, your know their address, you 

3 know their personally identifiable information in 

4 the context of activities conducted by that person 

5 that are related to that particular person. A 

6 reference to a brand name, manufacturer's name, 

7 Monroe Doctrine, etcetera, that's not sufficient. 

8 So not only are they under no 

9 obligation to establish that but in order to 

10 establish it, it's a very high bar. So it's not 

11 clear to me that that information is lawfully 

12 collected in the first place.

13 MR. MEDINE: Ms. Levinson-Waldman, do 

14 you want to weigh in on that? 

15 MS. LEVINSON-WALDMAN: I think the 

16 other thing I was going to add, if I'm 

17 understanding the question correctly about why is 

18 it not okay to do searches on information that's 

19 been lawfully collected, I think there's also an 

20 element of bootstrapping. 

21 So that it was lawfully collected for a 

22 purpose, for a foreign intelligence purpose, and 
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1 that you're right, of course Congress knew that 

2 U.S. person information was going to be 

3 incidentally collected through that process, but 

4 then there are these minimization procedures. 

5 And so kind of almost bypassing those 

6 procedures and allowing that body of information 

7 to be collected without meeting a fairly high bar, 

8 some kind of probable cause warrant seems like 

9 kind of going back and bootstrapping your way into 

10 that information in a way that is very different 

11 from searches of, I think, any other, almost any 

12 other body of lawfully collected information, 

13 because the standard for which it's obtained, that 

14 foreign intelligence standard and purpose is so 

15 different.

16 MR. JAFFER: I mean I actually think 

17 there are two kinds of bootstrapping. The first 

18 is pointing to the fact that foreigners outside 

19 the United States lack Fourth Amendment rights in 

20 order to collect huge volumes of communications to 

21 which Americans are a party. 

22 And then the other is pointing to the 
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1 foreign intelligence purpose to gather information 

2 which is then later used in criminal prosecutions. 

3 So that's to state the problem. It's not a 

4 solution to the problem, but I think that's where 

5 the concern comes from.

6 MR. MEDINE: Professor Ku.

7 MR. KU: If I could just add, I mean 

8 I'm not sure that's bootstrapping. I think that's 

9 sort of the purpose, right. The purpose is -- 

10 it's not that they're not also collecting it for 

11 foreign intelligence purposes. 

12 It's also true that if in the old days 

13 they came across a letter from an American person 

14 to a foreign person, it seems unlikely to me that 

15 because an American sent the letter that means 

16 they can't -- but they lawfully obtained the 

17 letter, it's unclear to me why they couldn't use 

18 that letter. 

19 And so I'm a little, possibly it's 

20 bootstrapping, but it's, there's a long history of 

21 going after foreigners and doing foreign 

22 surveillance. 
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1 I'm not sure that -- I think the only 

2 difference I think is technology does make it 

3 easier for it to flip back into the states, but 

4 I'm not sure that fundamentally this is a really 

5 different thing.

6 MR. MEDINE: Thank you. Ms. Brand.

7 MS. BRAND: Thank you. Well, it seems 

8 like there are some fundamentally opposing world 

9 views about the Fourth Amendment on the panel, and 

10 I want to, I mean this Board is not going to move 

11 Fourth Amendment law. So I want to get to what 

12 you think the law is and what you think the law 

13 should be, because I think there might be some 

14 conflation of those two things going on here.

15 First of all, Professor Ku, thank you 

16 for submitting your comments this morning, your 

17 written comments. I haven't had a chance to read 

18 them yet so I just want to ask you a question to 

19 make sure I understand where you're coming from.

20 You talk about inherent executive 

21 authority to conduct surveillance abroad or even 

22 of non-U.S. persons abroad. In your view, does 
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1 that inherent executive power operate alongside 

2 the Fourth Amendment, or irrespective of the 

3 Fourth Amendment, or does that create an exception 

4 to the Fourth Amendment?

5 MR. KU: Right, no, I don't think it 

6 creates an exception to the Fourth Amendment. It 

7 operates within the constraints, whatever they 

8 might be, of the Fourth Amendment.

9 But I would like to point out that 

10 historically this -- I mean so just to clarify. 

11 The reason I raise this, it goes to the point that 

12 historically the U.S. government as operated 

13 without statutory authority to conduct foreign 

14 surveillance. It's been, the power was granted, 

15 was thought of as coming from the Constitution. 

16 So the statutory scheme has not been 

17 thought of as necessary to authorize the type of 

18 intelligence gathering that's going on. 

19 Now the Fourth Amendment does apply, 

20 but as I also emphasized, it hasn't always 

21 applied. It didn't originally was thought of to 

22 apply at all, even to U.S. citizens overseas, but 
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1 I think we understand that the courts have come 

2 around to view that it does apply to U.S. citizens 

3 overseas. But I think it still has a limited 

4 impact compared to the way it applies for purely 

5 domestic searches. So that's how I would analyze 

6 that.

7 MS. BRAND: And how does it apply to 

8 purely domestic searches where there's a purpose 

9 of foreign intelligence gathering?

10 MR. KU: Well, I think that -- well, 

11 here I think that, you know, it does. The Fourth 

12 Amendment has been interpreted in recent cases to 

13 be a much more robust protection for searches 

14 domestically, although even in some of those 

15 cases, right, a warrant has not been required or 

16 the exception to the warrant requirement has been 

17 found for foreign intelligence purposes. So it 

18 still continues to exist within the domestic 

19 sphere.

20 I would say that for me, at least my 

21 understanding is a lot of this has been supplanted 

22 by the FISA system. The rise of the FISA system 
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1 has to some degree made the Fourth Amendment 

2 analysis a little bit less onerous because what's 

3 been happening is that everything's been funneled 

4 through the FISA system and the challenges to the 

5 FISA system has not been sort of as robust. 

6 I think if we hadn't had FISA maybe 

7 we'd have had more cases that would have clarified 

8 exactly what the Fourth Amendment limits on 

9 domestic foreign intelligence searches would be. 

10 I do think that it applies more strongly to 

11 domestic searches and I think it has more 

12 significance. 

13 But I do think that ultimately the 

14 foreign intelligence exception to the warrant 

15 requirement is a reasonable one that does need to 

16 be respected. It has a long tradition in history. 

17 In my view, really FISA is sort of on 

18 top of that to add additional privacy protections 

19 that I think Congress has judged, and probably 

20 rightly so, we need. But I'm not sure the Fourth 

21 Amendment itself standing alone would necessarily 

22 require all of the sort of procedural limitations 
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1 and minimization protections that we have.

2 MS. BRAND: Okay. And Jameel, can you 

3 very briefly, because I have another question for 

4 you, you do not think there is any foreign 

5 intelligence exception to the Fourth Amendment? 

6 Is that what I heard you say earlier?

7 MR. JAFFER: I don't think that there's 

8 any foreign intelligence exception broad enough to 

9 justify 702, and no court has -- 

10 MS. BRAND: But there is -- I mean I 

11 guess what I'm trying to get at is, do you think 

12 that the Fourth Amendment applies equally to 

13 collection for the purpose of foreign intelligence 

14 gathering as it applies to collection when the 

15 purpose is to gather evidence of a bank robbery, 

16 for example? 

17 MR. JAFFER: I think that there are 

18 certainly narrow circumstances in which the courts 

19 have held that there is a foreign intelligence 

20 exception. 

21 Again, those cases predate FISA, and so 

22 you know, you have to evaluate whether those cases 
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1 survived the thirty-five years of experience under 

2 FISA.

3 MS. BRAND: Okay. And then you 

4 referred earlier to, I think you were referring 

5 to, well, you're referring to 702 generally as 

6 large scale collection. I'm not sure if you were 

7 including both upstream or PRISM in that 

8 assessment. 

9 But if you were here for the first 

10 panel and if you take the government's facts as 

11 they stated them to be true, what about that 

12 program strikes you as large scale? What's your 

13 justification for that description?

14 MR. JAFFER: Well, so two responses to 

15 that. The first is I think it's important to draw 

16 a distinction between statutory restrictions and 

17 executive restraint. So there's a question of 

18 what the statute allows and then there's a 

19 question of how the government is implementing it. 

20 Obviously I know much less about how 

21 the government is implementing it than I do about 

22 what the statute on its face allows because I can 
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1 read the statute and I have access to only a 

2 portion of the government's documents.

3 But then as to, you know, whether it's 

4 large scale collection or not, I think that the 

5 problem is that everybody is using these words in 

6 different ways. The panelists this morning said 

7 that they weren't drawing a distinction between 

8 acquisition, surveillance, and collection. But 

9 their own documents do draw a distinction. 

10 If you look at USD 18, for example, 

11 which is the Defense Department's implementation 

12 of the executive order on intelligence collection, 

13 it draws a distinction between electronic 

14 surveillance and acquisition on the one hand and 

15 collection on the other. 

16 And collection involves the tasking of 

17 that, or tasking of communications, whereas 

18 electronic surveillance and acquisition do not. 

19 And so, you know, we have always 

20 thought of this, putting the vocabulary to the 

21 side for a second, we've always thought of this in 

22 two stages. There is a kind of, just to -- there 
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1 is a kind of, you might call it scanning, you 

2 might call it collection, but there's a kind of 

3 large scale acquisition of data, and then there's 

4 the government tasking that data, and then there 

5 is the government's tasking that data with 

6 selectors. 

7 So to be a little more concrete, if the 

8 government installs on a switch somewhere installs 

9 a device that either diverts all of the 

10 communications or a large portion of the 

11 communications, or scans a large portion of the 

12 communications, we would call that bulk 

13 collection. 

14 I'm not sure that anything turns on 

15 vocabulary but we should all make sure we're 

16 talking about the same concepts.

17 MR. MEDINE: Ms. Cook.

18 MS. COLLINS COOK: Actually that was 

19 right at the top of the last piece. I think we've 

20 used, and in this conversation alone we've used 

21 scan, inspect, acquire, collect, access. 

22 And so I guess my question is, if you 
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1 have access, so in your hypothetical you've 

2 installed something that gives you access to this 

3 stream of communications, is that a seizure or a 

4 search for the purpose of Fourth Amendment 

5 analysis in your view? 

6 MR. JAFFER: Well, I think it would 

7 depend what you were accessing. You know, the 

8 question would be have you invaded a reasonable 

9 expectation of privacy? 

10 But we have taken the position that, 

11 for example, the bulk accessing of telephone 

12 metadata is an invasion of a reasonable 

13 expectation of privacy, and we would certainly 

14 take the same position with respect to the bulk 

15 acquisition of telephone calls or emails. 

16 The MYSTIC program, again, just 

17 discussing it as a kind of hypothetical, that 

18 program in my view involves the bulk collection of 

19 telephone calls, voicemail messages, and telephone 

20 calls, even if the government doesn't access more 

21 than a small proportion of them.

22 MS. DONOHUE: May I add something to 
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1 that just very quickly? I was a little bit 

2 confused in the earlier panel because on the one 

3 hand they were saying this is a very limited 

4 program. On the other hand they say that this 

5 SIGAD is the most used NSA SIGAD. 

6 The slides that have been released say 

7 it draws from Microsoft, Google, Yahoo, Facebook, 

8 Paltalk, YouTube, Skype, AOL and Apple, that it 

9 gets voice over Internet protocol, email, chats, 

10 all this information, and it's hard to square 

11 that. 

12 And what they say is the value of the 

13 program, with its limited nature -- 

14 MS. COLLINS COOK: I'm sorry, can we 

15 talk about -- I appreciate your desire to talk 

16 about the previous panel but I had a specific 

17 question out that I'm really trying to understand 

18 the panelists' view on when the Fourth Amendment 

19 is implicated and how. 

20 And so if it's under your hypothetical 

21 if you have the acquisition of all phone calls 

22 from a country with subsequent access, at what 
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1 point would the Fourth Amendment attach?

2 MR. JAFFER: I would say certainly the 

3 moment you put it in your databases, by that 

4 moment the Fourth Amendment has attached.

5 MS. COLLINS COOK: So flipping that, if 

6 it's access to a wide swath of communications but 

7 acquisition into the government's possession or 

8 control, when would the Fourth Amendment attach?

9 MR. JAFFER: I'm sorry, but I've lost 

10 track of the difference between access and 

11 acquisition.

12 MS. COLLINS COOK: And this is part of 

13 the, I think you've used scanned, but some ability 

14 to review a stream of communications and pull, 

15 filter, something to that effect.

16 MR. JAFFER: Right. The scanning or 

17 the filtering would implicate the Fourth Amendment 

18 in my view.

19 MS. COLLINS COOK: That's helpful. I 

20 wanted to follow up on a different set of 

21 questions and just close the loop. 

22 If the determination was made that the 
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1 acquisition of the information pursuant to 702 was 

2 lawful, it's lawfully acquired information, would 

3 you still take the position that a subsequent 

4 search, and by that I mean a query using a U.S. 

5 person identifier, would need some sort of 

6 probable cause determination, that there would be 

7 a separate Fourth Amendment analysis? 

8 And can you explain why? I guess is 

9 this because there's a view that there's a lack of 

10 particularity of the front-end and therefore you 

11 have to have subsequent some particularized 

12 finding?

13 MR. JAFFER: Yes.

14 MS. DONOHUE: That would be my position 

15 as well.

16 MS. COLLINS COOK: Okay. One question 

17 for Professor Ku, if I could. We've heard that 

18 702 is silent, I think it's fair to say on the 

19 precise question of abouts. There are some 

20 structural arguments here and some purpose 

21 arguments that you can look to, but it's silent.

22 In view of the evolution of our 
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1 understanding of Article II of FISA, how would you 

2 as a constitutional matter assess a silence in 

3 702? Because Title VII is both an authorization 

4 and a restriction on Article II authority, so.

5 MR. KU: Right. So I think, I don't 

6 know if I have any sort of grand insights on the 

7 purely textual analysis, although I do think that 

8 the constitutional background is what can help us 

9 here with respect to, if we understand where we're 

10 coming from can help us analyze this. 

11 If we understand that constitutionally 

12 that the U.S. government was engaged in broad 

13 searches prior to the enactment of 702 then you 

14 have to sort of think about, well, to what degree. 

15 This is not really about authorizing, 

16 this is really about restricting, imposing 

17 restrictions on what I think the U.S. government 

18 had the authority to do prior to the enactment of 

19 the statute. 

20 And so if you look at it from that 

21 perspective then, if it doesn't, the silence or 

22 the lack of clarity or specificity would then I 
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1 think lead me from that perspective to suggest 

2 that the President retains that power. 

3 I would analogize this a little bit to 

4 the point that was made in the earlier FISA 

5 statute, how they excluded radio completely from 

6 the original FISA, radio communications, they just 

7 said nothing about it. 

8 And there are a lot of people that 

9 argue that was on the assumption that most of the 

10 foreign intelligence was radio in 1973 and that 

11 the President would continue going on gathering as 

12 much radio signals intelligence as he could. And 

13 then at a certain time, no one used radio anymore. 

14 But the point is that if you add the 

15 restriction in the statute it doesn't -- the 

16 previous or the other authority the President has 

17 to conduct the surveillance should in theory 

18 continue, and I think would likely to continue 

19 here too, assuming he had the authority prior to 

20 the enactment.

21 MR. MEDINE: Mr. Dempsey.

22 MR. DEMPSEY: A quick comment and then 
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1 a question. Going to the definition of 

2 distinctions between collect, acquire, etcetera, 

3 my comment is we really have to take yes for yes 

4 and no for no and move on. The government has 

5 said, to my mind totally clearly, they are not 

6 relying upon the USD 18 concepts in implementing 

7 702, so I think that we just have to move on from 

8 that. That's my comment. 

9 My question is the following, and this 

10 is for Jameel or anybody, Rachel, in terms of the 

11 querying of data otherwise lawfully acquired, what 

12 is the best case law that would limit the 

13 proposition that data lawfully acquired can be 

14 subsequently queried without limitation? 

15 MR. JAFFER: Well, so on your comment, 

16 I think you're certainly right that the government 

17 said on the panel earlier today that they were not 

18 relying on the distinction, any distinction 

19 between acquisition and collection. 

20 But I think that the government also 

21 acknowledged that it was engaged in about 

22 surveillance, and to engage in about surveillance, 
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1 my understanding is that there is no way to engage 

2 in about surveillance without inspecting in some 

3 sense every communication within the universe of 

4 those that you are monitoring or surveilling. 

5 There's no way to do it.

6 Now you can call that bulk collection 

7 or you can call it something else, but that 

8 scanning of every communication in a particular 

9 universe raises constitutional issues, and if all 

10 you're saying, Mr. Dempsey, is we should just 

11 address those constitutional issues, then I 

12 entirely agree.

13 MR. DEMPSEY: So now as the querying of 

14 otherwise lawfully acquired communications, and 

15 let's take, you know, if I steal your computer, I 

16 think, and then I give it to the government, the 

17 government lawfully acquired it. I may have 

18 stolen it. Or certainly in the Title III context 

19 the government lawfully acquires, or in the normal 

20 search and seizure context, or in the voluntary 

21 disclosure context, where is there case law 

22 limiting the proposition that lawfully acquired 
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1 information cannot subsequently be queried 

2 essentially without prior authorization, without 

3 meeting any threshold? What is, is there any 

4 case law limiting that? 

5 MS. DONOHUE: So we're starting to see 

6 cases come out of border security issues where 

7 computers -- border security issues, and I'd be 

8 happy to send you the names of the cases 

9 afterwards, where computers have been lawfully 

10 seized under customs laws but then they cannot be 

11 searched for all of the information on them 

12 because of the privacy implications that are 

13 involved and lack of a sufficient nexus to the 

14 suspected criminal activity. 

15 So those cases might be one source that 

16 you would look to in a new age of data where so 

17 much information is available.

18 MR. JAFFER: You know, I think it's 

19 important to ask the question the other way around 

20 as well, which is, you know, where is there 

21 case law showing that the Constitution is 

22 indifferent to the government collecting huge 
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1 volumes of communications without any 

2 individualized suspicion or particularity, and 

3 then sort of bootstrapping its way into free rein 

4 or --

5 MR. DEMPSEY: Again, if we're in a 

6 situation, I'm just trying to pose the situation 

7 of let us assume, just let us assume that the 

8 collection was lawful.

9 MR. JAFFER: I'm not suggesting for 

10 these purposes that the collection was unlawful. 

11 What I'm saying is that the collection here is 

12 different in kind from the kind of collection that 

13 the courts have been concerned with in other cases 

14 involving the use of information lawfully 

15 acquired. You know, it was important to those 

16 cases not just --

17 MR. DEMPSEY: So then the license plate 

18 readers, the information collected by the license 

19 plate readers is lawfully acquired and then the 

20 government can subsequently query that license 

21 plate database. I mean that's standard procedure.

22 MR. JAFFER: I'm not sure that it's 
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1 established with any certainty that the bulk 

2 collection, that the querying of a database of 

3 bulk collected license plate reader information 

4 doesn't raise Fourth Amendment concerns, and I 

5 think that that's still an open question.

6 MR. DEMPSEY: Well, I'm looking for 

7 some cases. Professor Donohue has some border 

8 cases --

9 MS. DONOHUE: I'd be happy to send you 

10 the border doctrine cases.

11 MR. DEMPSEY: That may be relevant. I 

12 would welcome any other cases limiting that 

13 proposition.

14 MR. MEDINE: Judge Wald.

15 MS. WALD: This is probably an unfair 

16 question but I'll ask it anyway. Given the fact 

17 that the grievances about 702 as it operates today 

18 have included a whole series of things, one we 

19 didn't discuss here but it's been raised in 

20 written stuff is the lack of FISA review of 

21 particularized targeting designations. I know 

22 it's allowed by the statute, but nonetheless the 
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1 capture and use of incidental U.S. information to 

2 search database, the use and retention of the U.S. 

3 information. 

4 But my question is, if you had to focus 

5 on one or maybe two important changes that you 

6 would like to see made now in 702, what would they 

7 be? Very quickly, anybody that wants to 

8 answer it. 

9 MS. DONOHUE: I would say limiting the 

10 information to, or from, or held by the actual 

11 target and inserting a mechanism of judicial 

12 review if information is uncovered that would lead 

13 to subsequent criminal prosecution prior to 

14 analysis of the databases that are held.

15 MS. WALD: Okay, great. Down the line.

16 MR. JAFFER: The only thing that I 

17 would add to that is destruction of inadvertently 

18 acquired communications. Communications that the 

19 government itself acknowledges should not have 

20 been acquired in the first place should be 

21 destroyed immediately.

22 MS. WALD: Destruction, they say 
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1 they're purging them but you mean something --

2 MR. JAFFER: There are broad exceptions 

3 to the --

4 MS. WALD: I know there are exceptions, 

5 but you mean -- okay. 

6 Do you have any, Professor Ku? 

7 MR. KU: Actually, I mean this may be 

8 kind of not what you're looking for, but I do 

9 think that actually I would prefer the FISA 

10 section clarify the default that I've been arguing 

11 for, that it doesn't encroach, to clarify further 

12 that it doesn't encroach on, Section 702 doesn't 

13 encroach on the President's, you know, foreign 

14 intelligence authority. That would, I think, help 

15 our interpretation of the statute.

16 MS. LEVINSON-WALDMAN: And I just would 

17 mention three things. One is I agree more robust 

18 involvement by the FISC. 

19 MS. WALD: I'm sorry, more?

20 MS. LEVINSON-WALD: More robust 

21 involvement by the FISC in terms of review. 

22 There's some review now that is sort of a 
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1 box-checking procedure, and have that review be 

2 more -- 

3 MS. WALD: Just the way they do what 

4 they do now, but more carefully? 

5 MS. LEVINSON-WALDMAN: Well, I'd say 

6 not even, it's not so much that I think that 

7 they're not careful with it now, it's that the 

8 statute actually limits the scope of some of the 

9 review that they do, that they sort of don't get 

10 behind the curtain.

11 MS. WALD: Including the targeting.

12 MS. LEVINSON-WALDMAN: Right. I guess 

13 the second, thinking about, so if you think about 

14 Section 702 but having the minimization procedures 

15 be a natural part of that statute. 

16 Certainly limiting and potentially 

17 eliminating the use of information for law 

18 enforcement purposes. And obviously this is 

19 something that the NSA, that the President's 

20 review group spoke to as well and made that 

21 recommendation. 

22 And then the third quite honestly would 
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1 be to lift the standard back up to agent of a 

2 foreign power from the foreign intelligence 

3 requirement. And the foreign intelligence purpose 

4 is so loose and that that seems to be --

5 MS. WALD: For targeting? 

6 MS. LEVINSON-WALDMAN: For targeting, 

7 yes, that's correct.

8 MS. WALD: Okay. I've got maybe one 

9 minute left so a quick question. Some of you, I 

10 don't remember now, all of you in a prior one, 

11 when we were doing 215, talked about the 

12 desirability/necessity of having an adversarial 

13 element in the FISA proceedings. 

14 A very quick notion of how would you 

15 see an adversary, however appointed, in a 702 

16 proceeding? In other words, what function could 

17 they serve, he or she serve in a 702?

18 215 was a little bit more evident. A 

19 novel technological case coming up to the court, 

20 what would you say, do they have any, would they 

21 have any function in a 702?

22 MS. DONOHUE: So I would imagine them 
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1 having a function absolutely, yes. The ACLU tried 

2 to do this and was not allowed to intervene on a 

3 motion on a First Amendment grounds and it was 

4 denied by the court in part on the grounds that 

5 they would never succeed on the First Amendment to 

6 actually intervene. 

7 I think having an advocate there would 

8 allow them to more carefully review minimization 

9 procedures, to more carefully review targeting 

10 procedures. It would allow them to evaluate the 

11 role that they play with regard to targeting.

12 MS. WALD: In individual cases in 702? 

13 MS. DONOHUE: And in individual cases, 

14 yes, but you would have to change to insert some 

15 sort of a warrant requirement equivalent for 

16 criminal prosecution or further examination of the 

17 records.

18 MR. JAFFER: And I think that our 

19 biggest concern is with judicial rulings that have 

20 far-reaching implications and not just 

21 implications in the individual cases. So I think 

22 that when you're talking about the individual 
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1 cases, I do think that, you know, in theory an 

2 adversarial process would be a useful thing. 

3 On the other hand, I think that the 

4 closer you get to an individualized warrant 

5 application, or court order application, or 

6 surveillance application, the more it looks like 

7 traditional Title III or a search warrant context, 

8 which is ex parte. 

9 But you know, when you get to judicial 

10 opinions that authorize about surveillance at some 

11 level of generality, that is something that ought 

12 to be argued in open court, you know, with a 

13 closed hearing to follow if there is legitimate, 

14 if there are legitimate sources and methods to be 

15 protected.

16 But if I can just use the process to 

17 add one answer to your previous question, I agree 

18 very strongly with what Rachel said that reforming 

19 or revising the standard, the targeting standard 

20 is crucial. 

21 Right now there is, there's really no 

22 limit on who the government can target overseas. 
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1 The example that the government panelist kept 

2 coming back to is bad guy at Google.com or bad guy 

3 at Yahoo.com. But it could as easily be 

4 journalist at Yahoo.com, or human rights activist 

5 at Yahoo.com. And I think it's crucial that some 

6 limits be drawn around the category of people whom 

7 the government can legitimately target.

8 MS. WALD: And by the FISA court?

9 MR. MEDINE: We only have a couple of 

10 minutes. If there's any members of the Board who 

11 want to ask any additional questions.

12 MS. COLLINS COOK: Can I ask just one 

13 quick follow-up question on this point actually? 

14 MR. MEDINE: Sure.

15 MS. COLLINS COOK: And this is to 

16 Ms. Levinson-Waldman. You had said lift the 

17 standard back to agent of a foreign power or a 

18 foreign power. What were you referring to when 

19 you said back to?

20 MS. LEVINSON-WALDMAN: Right, I mean I 

21 guess back to, we're sort of envisioning to some 

22 extent Section 702 is sui generis and when it came 
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1 into being it was a foreign intelligence 

2 requirement. But I guess thinking of FISA more 

3 broadly, narrowing that foreign intelligence 

4 standard in some way to match what is in other 

5 sections. 

6 Obviously one option would be matching 

7 what's in other sections of FISA, agent of a 

8 foreign power, I think that would be our 

9 preference, but narrowing that in some way. Back 

10 was probably an imprecise way of referring to it. 

11 And if I could add one other brief 

12 thing, I think our other, you know, if we have a 

13 wish list it would be, and again, I'll say 

14 restore, but thinking about other parts of FISA, 

15 having the collection be, and you know, these may 

16 be one or the other but having the collection, the 

17 foreign intelligence be the primary purpose rather 

18 than a significant purpose, that that has also 

19 allowed, you know, potentially a fair amount of 

20 slippage in terms of what the collection is for.

21 MR. MEDINE: Any other final questions? 

22 I want to thank the panelists very much for 
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1 joining us today. It was a very enlightening 

2 discussion. We're now going to take a lunch break 

3 and we will resume with our third panel at 1:45. 

4 Thank you.

5 (Off the record)

6 MR. MEDINE: Good afternoon, and thanks 

7 everyone for rejoining us. And I want to 

8 introduce our third panel, which will be on 

9 transnational and policy issues.

10 We are joined by John Bellinger, who is 

11 a partner at Arnold & Porter, Dean Garfield, who 

12 is the President and CEO of the Information 

13 Technology Industry Council, Laura Pitter, who is 

14 a Senior National Security Researcher at the Human 

15 Rights Watch, Ulrich Sieber, who is the Director 

16 at the Max Planck Institute for Foreign and 

17 International Criminal Law in Freiburg, Germany, 

18 and Chris Wolf, who is a partner at Hogan Lovells.

19 Each of the panelists will make a brief 

20 opening statement and then we will proceed with 

21 the Board questioning.

22 I guess we can start alphabetically 
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1 with Mr. Bellinger.

2 MR. BELLINGER: It's me first then. 

3 Well, thank you all very much for having me in, 

4 the members of the Board. I'm going to focus my 

5 comments on whether international law places any 

6 restrictions on electronic surveillance of foreign 

7 nationals outside the United States. 

8 I think you know I served as the legal 

9 advisor for the Department of State from 2005 to 

10 2009, as the legal advisor for the National 

11 Security Council from 2001 to 2005, and then I was 

12 the national security advisor to the head of the 

13 Criminal Division at Justice Department before 

14 that, so I have extensive experience, both in 

15 intelligence activities and international law.

16 So in recent months I think you know 

17 many scholars and human rights advocates have 

18 argued that NSA surveillance of foreign nationals 

19 violates a so-called universal right to privacy 

20 recognized in international law. 

21 They base their argument on Article 17 

22 of a human rights treaty called the International 
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1 Covenant on Civil and Political Rights, which the 

2 U.S. ratified in 1992.

3 Article 17 provides, and I quote, no 

4 one shall be subjected to arbitrary or unlawful 

5 interference with his privacy, family, home, or 

6 correspondence, end quote. 

7 The argument that NSA surveillance 

8 violates Article 17 of the ICCPR is incorrect for 

9 several reasons. And I will say in my view 

10 international law, neither the ICCPR or any other 

11 part of international law placed international 

12 legal restrictions on the NSA, any of the NSA 

13 programs.

14 With respect to the ICCPR, first, for 

15 the last sixty-four years the United States 

16 government has taken the consistent position that 

17 it does not apply outside the borders of the 

18 United States. The U.S. took this position when 

19 we negotiated the treaty in 1950, and we 

20 re-articulated it in 1995, when the Clinton 

21 administration submitted its first report to the 

22 U.N. Human Rights Committee, which is the group 
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1 that oversees compliance with the ICCPR.

2 My predecessor at the time, the then 

3 legal advisor Conrad Harper, explained to the 

4 committee that the ICCPR imposes obligations on 

5 the United States only inside the United States. 

6 And that's because Article 2 of the ICCPR, which 

7 defines its scope, says that a state party is 

8 bound to respect and ensure the rights in the 

9 ICCPR only to all individuals within its territory 

10 and subject to its jurisdiction. 

11 And as my predecessor, Conrad Harper 

12 said at the time, this is a dual requirement that 

13 establishes that treaty obligations apply only if 

14 both conditions are satisfied. An individual must 

15 be under United States jurisdiction and within 

16 United States territory. 

17 And now the negotiating position of the 

18 United States of the treaty confirms that 

19 interpretation. The phrase, within its territory, 

20 was added at the request of the head of the U.S. 

21 delegation, Eleanor Roosevelt at the time in 1950. 

22 And she explained that, quote, the purpose of the 
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1 proposed addition is to make it clear that the 

2 draft covenant would apply only to persons within 

3 the territory and subject to the jurisdiction of 

4 the contracting states. 

5 There was a vote held on that addition 

6 and that addition was adopted 8 to 2 in 1950. 

7 Subsequent efforts to change that have failed. 

8 And again, in his statement to the 

9 Human Rights Committee in 1995, Conrad Harper 

10 explained that the words were added, quote, with 

11 the clear understanding that such wording would 

12 limit the obligations to within a party's 

13 territory. 

14 Now it's true, and I know that Laura 

15 Pitter is going to talk about this, that the Human 

16 Rights Committee and a lot of human rights groups 

17 in other countries don't agree with the 

18 long-standing U.S. interpretation, but the Human 

19 Rights Committee's statements don't have binding 

20 legal effect on the United States or to any other 

21 country. We give respect to them but they're not 

22 binding on us. 
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1 Both the Bush and the Obama 

2 administrations have confirmed the Clinton 

3 administration's position that the ICCPR does not 

4 apply extra-territorially. 

5 In fact, just five days ago in Geneva 

6 we were making our periodic report to the Human 

7 Rights Committee and the acting legal advisor, 

8 Mary McLeod, told the committee, quote, the United 

9 States continues to believe that its 

10 interpretation that covenant applies only to 

11 individuals both within its territory and within 

12 its jurisdiction is the most consistent with the 

13 covenant's language and negotiating history. 

14 So we really have fifty years of U.S. 

15 practice on this point recently reaffirmed by the 

16 Obama administration.

17 But even if the ICCPR did apply 

18 extra-territorially, the treaty would still not 

19 place limits on NSA surveillance because persons 

20 in other countries are not subject to U.S. 

21 jurisdiction. 

22 The Human Rights Committee itself has 
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1 defined the phrase subject to a party's 

2 jurisdiction to include people within the power or 

3 effective control, or effective control of the 

4 forces of a state party acting outside its 

5 territory. So not even the Human Rights Committee 

6 is suggesting that everybody who may be subject to 

7 NSA surveillance is actually within the power or 

8 effective control of the United States. 

9 And I would want to hear more from my 

10 colleague who I've met before, Professor Sieber, 

11 but even if they're unhappy with NSA surveillance, 

12 I am not aware of any foreign government that 

13 believes that the ICCPR or any other provision of 

14 international law imposes an obligation to respect 

15 the privacy rights of non-citizens. 

16 In fact, candidly, most foreign 

17 governments spend lots of time spying on foreign 

18 citizens. So they may be unhappy with what we're 

19 doing as a policy matter, human rights groups may 

20 suggest that there are binding legal norms, but 

21 I'm actually not aware that foreign governments 

22 are suggesting that there is an actual violation 
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1 of international law.

2 And finally, just to close on my 

3 analysis of the ICCPR, and then I'll wind up, even 

4 if the ICCPR did impose certain obligations on 

5 United States extraterritorial conduct, even if 

6 people outside the United States were considered 

7 to be within the jurisdiction of the United 

8 States, Article 17 of the ICCPR still only bans, 

9 quote, arbitrary and unlawful interference with 

10 privacy. 

11 Now we can certainly argue about 

12 constitutes arbitrary and unlawful interference 

13 but there is no international norm on that point. 

14 I'm sure lots of people can suggest that the NSA 

15 program is arbitrary, that it's unlawful, but when 

16 we're talking about international law there has to 

17 be actually a specific norm that people have 

18 agreed to, and there is no generally accepted 

19 framework under international law that defines 

20 what kind of surveillance is unlawful or 

21 arbitrary. 

22 So the bottom line, despite statements 
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1 that we are violating the Article 17 of the ICCPR, 

2 it just simply does not apply, nor does any other 

3 provision of international law. 

4 And so let me close by saying that just 

5 because international law doesn't actually create 

6 a universal right of privacy that's binding on the 

7 United States, I'm by no means saying that we 

8 ought to be insensitive to the rights of 

9 non-citizens. Certainly if I were still in the 

10 White House I would be saying, you know, we need 

11 to be respectful of concerns both of individuals 

12 or of leaders. That's why we make these policy 

13 decisions.

14 President Obama's recent presidential 

15 policy directive states that signals intelligence 

16 activities must take into account that all persons 

17 should be treated with dignity and respect, 

18 regardless of their nationality or wherever they 

19 might reside, and that all persons have legitimate 

20 privacy interests in the handling of their 

21 personal information. 

22 So it's perfectly appropriate to take 
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1 into account privacy interests, but international 

2 law does not place binding legal obligations on 

3 us. Thank you.

4 MR. MEDINE: Thank you. Mr. Garfield.

5 MR. GARFIELD: Thank you. Thank you 

6 members of PCLOB on behalf of fifty-six of the 

7 most dynamic and innovative companies in the 

8 world, thank you for inviting us to testify today. 

9 And thank you as well for your efforts to advance 

10 both national security and civil liberties. 

11 From our perspective we have the firm 

12 view that those two concepts are mutually 

13 reinforcing and in fact are not mutually exclusive 

14 and so we want to do whatever we can to support 

15 your efforts.

16 I'd like to focus my testimony on two 

17 areas. One, what we're experiencing in the 

18 marketplace as a result of the NSA disclosures 

19 and, then share some solutions that may help 

20 remediate some of the challenges that we're 

21 facing.

22 On the first, the economic impact from 
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1 the NSA disclosures are significant and ongoing. 

2 The folks in this room are very familiar with 

3 Section 215 and the distinction between that and 

4 Section 702, but for folks outside of this room 

5 much of what they experience and what we're 

6 experiencing is diminishing trust, particularly 

7 diminishing trust in U.S.-based technologies. So 

8 rather than made in the U.S.A. being a badge of 

9 honor, it's increasingly becoming a basis to 

10 question the integrity and security of 

11 technologies.

12 That has a real world economic impact. 

13 In fact, there are a number of analyses out there 

14 that put the numbers of the impact in the tens of 

15 billions of dollars. 

16 As significant, perhaps even more 

17 significant than the economic loss is the broader 

18 societal impact and the implications for the 

19 Internet more generally. We're celebrating this 

20 year the 25th anniversary of the commercialization 

21 of the Internet and are all very familiar with the 

22 benefits and the way it's transformed all of our 
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1 lives.

2 Increasingly, what we're seeing though 

3 are policies aimed at changing the open, 

4 ubiquitous, globally-integrated Internet into one 

5 of walled silos. And so the legislation that's 

6 actually being debated today in Brazil would 

7 create walled gardens around their data. 

8 And it's not simply limited to Brazil. 

9 We're seeing the same in Europe, as you all know, 

10 where the parliament is questioning the continuing 

11 viability of the safe harbor, or in particular 

12 territories within Europe where they're calling 

13 for country-specific clouds that would again 

14 create these islands of walled silos rather than 

15 an open, integrated Internet, which we all know 

16 the implications of that.

17 And so what do we do about it? I'll 

18 offer up three sets of solutions that build on 

19 global principles that we released earlier this 

20 year after working with our members to forge 

21 consensus on it. 

22 And I place the emphasis on global 
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1 because we firmly believe that in order to address 

2 these issues and to address them effectively, high 

3 level, global communication and engagement around 

4 surveillance is critically important. 

5 The first aspect or screed of solutions 

6 is around transparency. This body, the PCLOB in 

7 its January report made the point that 

8 transparency is the foundation for democratic 

9 principles. We firmly agree. We also think it's 

10 the foundation for separating fact from fable. 

11 And so to the extent that there's a 

12 greater awareness, particularly around 702 where 

13 there are protections in place already, for there 

14 to be greater awareness about that would be quite 

15 helpful.

16 As it relates to our companies, the 

17 ability to share with the public more about 702 

18 and 215 and the requests that come in pursuant to 

19 those, as well as the accounts, particularly the 

20 numbers, would be incredibly helpful. And so 

21 greater transparency is one element of what we 

22 would recommend.
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1 The second relates to oversight. And 

2 as I've said in other places, including my 

3 testimony on the hill, our solutions are offered 

4 with a great deal of humility because we don't 

5 know what we don't know. I don't pretend to be 

6 able to offer the exact framework for making sure 

7 that there is a civil libertarian advocate or a 

8 civil liberties advocate within the FISA or FISC 

9 court process. But developing a framework for 

10 enabling that, we think is very important.

11 Finally, the last set of solutions are 

12 based on working to rebuild the trust that has 

13 been eroded, and there, a few unequivocal 

14 statements from our government would be quite 

15 helpful. 

16 By way of example, there has been a lot 

17 of reporting around steps that may or may not have 

18 been taken to undermine encryption standards. 

19 NIST has been very firm in taking steps to make 

20 sure that they bolster the encryption standards 

21 that are being developed. 

22 But a statement from our government 
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1 that they don't, do not intend to take steps to 

2 undermine the integrity of our cyber -- to 

3 undermine the integrity of those standards would 

4 be incredibly important. 

5 Similarly, taking steps to affirm that 

6 data acquisition pursuant to 702 is not being done 

7 in an indiscriminate manner, I think would also be 

8 incredibly helpful. With that, I'll pause.

9 MR. MEDINE: Thank you. Ms. Pitter.

10 MS. PITTER: First, thank you very much 

11 for this opportunity. Thank you for having me. 

12 We've filed a more lengthy statement with the 

13 Board so I'm just going to be a little bit more 

14 brief here.

15 I was asked to talk about U.S. 

16 obligations under the International Covenant for 

17 Civil and Political Rights so I'll start with 

18 that. 

19 And obviously, I'm going to disagree 

20 with Mr. Bellinger on this issue, as did Harold 

21 Koh's recently released memo where he disagreed as 

22 well and tried to get the Obama administration to 
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1 take a different position, arguing that it was not 

2 actually in the U.S. interests to continue to not 

3 apply the ICCPR in an extraterritorial manner. 

4 There has been debate about whether or 

5 not this treaty applies outside of U.S. borders 

6 and it stems from, as Mr. Bellinger said, the 

7 operative jurisdictional clause in the covenant 

8 which says that states have an obligation to 

9 respect and ensure that those within its territory 

10 and subject to its jurisdiction, the rights under 

11 the covenant. 

12 So the word jurisdiction in that clause 

13 has been interpreted to mean power and effective 

14 control. But the U.S. does not accept that. It 

15 takes a strictly territorial stance. And this 

16 essentially means that a state has to abide by the 

17 covenant within its territory but then it can 

18 willfully violate the covenant outside its 

19 territory, killing and pillaging at will outside 

20 its borders, which doesn't really make any sense. 

21 Treaty law requires that the language 

22 of the treaty be interpreted in accordance with 
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1 its context, as well as its object and purpose. 

2 And the context in this case was post-World War 

3 Two when the treaty drafters were aiming at 

4 empowering people with rights universally and not 

5 diminishing them, and responding effectively to 

6 Nazi atrocities.

7 To interpret the treaty in that limited 

8 way would allow, for example, Nazi Germany to run 

9 a concentration camp in Poland, as Marco 

10 Milanovic, a prominent scholar on this issue has 

11 pointed out.

12 And the U.S. is the clear outlier on 

13 this. Only the U.S. and Israel take such a strict 

14 interpretation of the treaty. 

15 So how does this apply to surveillance 

16 and the right to privacy? Some have argued that 

17 even if the ICCPR applies extra-territorially it 

18 should only be in the case where the government 

19 has physical control over the individual, like in 

20 the context of detention or torture. And that 

21 doesn't apply to surveillance simply because the 

22 individual is not within a state's effective 
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1 control. 

2 But the problem is that their 

3 communications are. And so to not recognize even 

4 a duty to respect the right to privacy in this 

5 context creates a kind of absurd situation where 

6 the U.S. would be barred from going into someone's 

7 house in Germany and taking letters out of 

8 someone's drawer but not barred from reaching into 

9 their computer and doing the very same thing 

10 remotely. 

11 These are novel questions, and I won't 

12 deny that. The Human Rights Committee, which is 

13 the main interpretive body of the ICCPR, has not 

14 adjudicated this matter. 

15 And though there is a body of case law 

16 in other jurisdictions, particularly in the 

17 European Court of Human Rights, that have the 

18 issue and they do provide some guidance on a 

19 framework for how to analyze surveillance laws. 

20 That said, those decisions, they came 

21 out before the Snowden revelations so they're not 

22 informed by a lot of the information that's come 
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1 in the public domain about the vastness of the 

2 collection that's going on.

3 But these issues are novel in the U.S. 

4 too. Just because there may not be necessarily a 

5 case en point does not mean the obligations or the 

6 rights don't exist. They are in the treaty. 

7 Just as like many in the U.S. have 

8 argued that U.S. law has to catch up with 

9 technology and recognize a reasonable expectation 

10 of privacy in metadata, international law has to 

11 acknowledge that when it comes to surveillance, 

12 though an individual may not necessarily be in a 

13 state's physical control, their communications 

14 are, and the right to privacy can be violated 

15 remotely through technical means. 

16 But just because the obligation applies 

17 extra-territorially does not mean that the 

18 surveillance has to stop. There is a framework 

19 within which surveillance can take place, but also 

20 be in accordance with human rights obligations. 

21 The surveillance has to be lawful and 

22 non-arbitrary and necessary to a legitimate cause 
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1 that's proportional to that legitimate aim. 

2 By all accounts, that's not what 702 

3 is. 702 may all be for the purpose of protecting 

4 U.S. national security, which would be a 

5 legitimate aim, but are there more narrowly 

6 tailored ways to achieve that aim? 

7 And if the answer to that question is 

8 no, and I'm going to quote from the review group 

9 here, the question is not whether granting the 

10 government authority makes us incrementally safer 

11 but whether the additional safety is worth the 

12 sacrifice in terms of individual privacy, personal 

13 liberty, and public trust. And also, is it really 

14 worth the other harms that will result? 

15 We're in a situation now in which 

16 countries are rushing to enact laws that would 

17 localize data collection and companies are rushing 

18 to offer alternatives to customer data being 

19 stored in the U.S. 

20 And from a technological standpoint 

21 data flows are not necessarily based on geography 

22 but travel the cheapest, most efficient route. 
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1 This means a transfer to someone in the same 

2 country can mean data passing through many 

3 countries without the sender even knowing it. So 

4 a failure to respect the right to privacy 

5 extra-territorially imposes, exposes U.S. data to 

6 vulnerability when it's situated in other states. 

7 The President has already essentially 

8 recognized all this. His presidential policy 

9 directive purports to bring the rules on retention 

10 and dissemination of data collection on foreigners 

11 closer to those that govern data on U.S. persons. 

12 But it did not end bulk collection and 

13 specifically exempted data temporarily acquired to 

14 facilitate targeted collection. 

15 Also, this was through an executive 

16 order not legislation, so it could be changed by 

17 future administrations. 

18 The bottom line is that the U.S. is in 

19 a unique position because most of the world's data 

20 flows through its borders. And this confers an 

21 obligation to respect the privacy rights of those 

22 individuals whose communications fall within the 
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1 U.S. jurisdiction, but also to refrain from 

2 interfering with the ability of other countries to 

3 protect data, protect their own citizens' data. 

4 And a failure to recognize the value of this 

5 undermines U.S. business and long term national 

6 security interests. 

7 The administration says it will make 

8 some changes but the law remains the same and that 

9 too has to change.

10 MR. MEDINE: Thank you. Mr. Sieber, 

11 Professor Sieber.

12 MR. SIEBER: Thank you very much for 

13 your kind invitation. It's a pleasure to be here. 

14 International legal obligations for 

15 U.S. surveillance programs for which you are 

16 asking can be based on two different sources, 

17 interests of states and interests of persons. The 

18 two are interrelated since the protection of a 

19 state's territory also has effectual protective 

20 functions for its citizens.

21 Let me start therefore with a few 

22 remarks on this broader approach before turning to 
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1 specific human rights, which have been addressed 

2 here. 

3 General international law and Article 2 

4 of the U.N. Charter protects the sovereign 

5 equality and territorial integrity of all states. 

6 A state therefore violates territorial 

7 sovereignty if it accesses, copies, or manipulates 

8 non-public data in computer systems located in a 

9 foreign state because such acts initiate in data 

10 processing on the servers located in a foreign 

11 territory. 

12 There are no norms in public 

13 international law that permit violating other 

14 states' sovereignty by across the board world-wide 

15 surveillance.

16 There is also no customary rule of 

17 international law that permits the infringement of 

18 sovereignty resulting from acts of espionage. 

19 In addition, espionage committed from 

20 the premises of embassies violates the obligations 

21 under Article 3 of the Vienna Convention on 

22 Diplomatic Relations.
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1 These infringements of the territorial 

2 integrity of many states by large scale 

3 surveillance programs have two impacts for our 

4 topic. First, with respect to policy 

5 considerations, infringements of the territorial 

6 integrity of foreign states violate international 

7 law, plus in addition also national cyber crime 

8 statutes that are globally agreed upon in the 

9 Budapest Convention. 

10 These violations pose serious threat to 

11 the continuing trust and the integrity of the U.S. 

12 and its IT industry. This infringement may be 

13 more serious than the violations of privacy 

14 rights, the scope of which are controversially in 

15 dispute in most countries. 

16 Secondly, transnational surveillance 

17 programs on foreign territory take over the 

18 security functions of the affected states. This 

19 transnational control deprives citizens of 

20 protection by their own state and any other legal 

21 protective systems in these security measures, 

22 since their home state cannot protect them against 
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1 unknown foreign violations of their privacy and 

2 the intercepting foreign state often does not 

3 recognize any aliens' rights outside its territory 

4 where the interception is taking place. 

5 In such a global system the citizens, 

6 including U.S. citizens, are deprived of any 

7 protection, especially if authorities of different 

8 countries exchange certain data.

9 Thus we are all losing a protective 

10 system which mankind has won in a long historical 

11 battle dating back to the Enlightenment. Thus, if 

12 we are engaging in transnational surveillance 

13 programs we must at least recognize certain basic 

14 human rights apply to all humans, regardless of 

15 nationality and place of residence. And if we 

16 want to create an effective global solution this 

17 must be supported by international human rights, 

18 to which I will now turn. 

19 In the field of international human 

20 rights I will also concentrate on Article 17 of 

21 the International Covenant of Civil and Political 

22 Rights. The International Court of Justice, the 
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1 U.N. Human Rights Committee, both in its case law 

2 and in its General Comment 31, as well as many 

3 national courts and governments acknowledge the 

4 extraterritorial applicability of the ICCPR. 

5 I also simply refer to the well-founded 

6 memorandum presented by Harold Koh, former legal 

7 advisor at the U.S. State Department in 2010 and 

8 2013, with respect to the ICCPR. Koh is 

9 convincingly for the extraterritorial 

10 applicability of the conventions. 

11 According to the prevailing opinion, 

12 the ICCPR is extra-territorially applicable to 

13 anybody within the power or effective control of 

14 the acting state party or its agents. 

15 In the physical world, extraterritorial 

16 applicability of the ICCPR is thus limited to 

17 situations in which the government has total or 

18 special control, spatial control over a territory. 

19 Since communications and privacy rights 

20 are by their very nature exercised in the virtual 

21 world and are prominently infringed upon there, 

22 the control of this virtual world by highly 
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1 extensive surveillance programs should be a 

2 decisive factor. 

3 If we do not accept these conclusions 

4 we still must deal with an argument of the German 

5 Constitutional Court, which also might be relevant 

6 for the American discussion. The court argues 

7 that telecommunication interception not only 

8 infringes upon privacy rights by the first act of 

9 recording the telecommunication, it also infringes 

10 on these rights by the following data transmission 

11 to their home country, the analysis, the linking, 

12 the long-lasting storing, and by further 

13 transmissions to other recipients. 

14 All these acts are repeating and 

15 deepening the infringements of privacy rights and 

16 they are undoubtedly committed on the territory of 

17 the surveilling states. Thus, even in cases of 

18 foreign intelligence gathering, we are not dealing 

19 only with actions outside the national territory. 

20 Accepting the arguments for the 

21 transnational applicability of specific 

22 international human rights would promote then a 
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1 deeper discussion on the substantive scope of 

2 international human rights protection of privacy. 

3 A first attempt to define the contours 

4 of the international concept of privacy can be 

5 seen in the already mentioned U.N. General 

6 Assembly Resolution 68167 of last December on the 

7 right to privacy in the digital age. 

8 When this discussion proceeds, it will 

9 be most important to recognize that threats from 

10 abroad are different from internal threats. Thus 

11 the principle of proportionality as developed by 

12 international and national courts will lead to 

13 very different results in different circumstances, 

14 such as for data collection to homeland, in 

15 Afghanistan, or today in the Ukraine. 

16 These necessary differentiations under 

17 the principle of proportionality can recognize 

18 many U.S. security concerns. Thus applying 

19 certain transnational privacy rights would not 

20 prevent a reasonable security policy, especially 

21 also since the ICCPR is self-executing in the 

22 U.S.A. and national foreign citizens could not 
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1 initiate judicial proceedings against the U.S. 

2 In sum, I would advocate for an 

3 international solution and discussion in order to 

4 maintain or regain the leading role of the U.S. as 

5 an advocate for the rule of law and human rights 

6 in democratic societies, as well as for the trust 

7 in its IT industry and its clouds. 

8 If time is not yet ripe for an 

9 international human rights solution, then more 

10 emphasis should be placed on national efforts to 

11 provide more guarantees for non-U.S. persons. 

12 For that reason I welcome the 

13 respective U.S. Presidential Directive 28 of last 

14 January to applying certain safeguards for all 

15 individuals, regardless of the nationality of the 

16 individuals to whom the information pertains or 

17 where that individual resides. 

18 This policy is also the position of the 

19 German constitutional law. In case of your 

20 interest it would be a pleasure for me to provide 

21 you with more details on these comparative legal 

22 aspects later on in the discussion. Thank you.
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1 MR. MEDINE: Thank you. Mr. Wolf.

2 MR. WOLF: Thank you, Mr. Chairman. As 

3 Chairman Medine said at the outset, I'm the 

4 partner in the law firm of Hogan Lovells, where I 

5 lead the firm's global privacy practice. 

6 And in 2013 Hogan Lovells published a 

7 white paper examining the similarities and 

8 differences among various legal regimes that 

9 authorize and limit governmental access to data. 

10 And our work began before the Snowden 

11 NSA disclosures in response to the claims of 

12 certain EU cloud service providers that storage of 

13 data in the EU made it safer from surveillance 

14 than storage with a U.S.-based cloud provider. 

15 Obviously following the Snowden 

16 revelations the argument in support of allegedly 

17 secure from surveillance regional clouds has been 

18 renewed loudly. 

19 A previous white paper we did on 

20 governmental access to data internationally noted 

21 the availability of mutual legal assistance 

22 treaties and other forms of cross-border 
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1 governmental sharing addressing faulty claims of 

2 regional cloud service providers about the 

3 invulnerability to foreign government access that 

4 local cloud storage might provide. 

5 Our 2013 white paper specifically 

6 looked at Section 702 surveillance and the 

7 frameworks in Australia, Canada, France, Germany, 

8 and the United Kingdom. My written and oral 

9 testimony today synthesizes the findings from this 

10 white paper and includes additional information on 

11 similar laws in Brazil, Italy, and Spain that we 

12 intend to publish soon. 

13 I will note that our white paper 

14 foreshadowed last week's report of the European 

15 Parliament criticizing the practices of certain EU 

16 member states for the lack of transparency and 

17 controls on their surveillance activities.

18 My principle point today following our 

19 white paper is straightforward. While the 

20 policies and practices of the United States 

21 addressing surveillance and related privacy 

22 concerns obviously need to be and are being 
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1 reassessed, the U.S. has on its books greater due 

2 process and independent oversight of surveillance 

3 activities than many of our fellow democracies. 

4 As you know, Section 702 surveillance 

5 requires court approval, surveillance is limited 

6 to foreign intelligence information, and oversight 

7 mechanisms exist for 702 surveillance. 

8 As our white paper revealed those same 

9 limitations are not always found in the law of 

10 many of our counterparts. Australia, Canada, 

11 France, Germany, Italy, and the United Kingdom do 

12 not require court approval for national security 

13 surveillance.

14 In France, the intelligence agency is 

15 allowed to conduct surveillance to protect 

16 economic and scientific assets, even when national 

17 security interests are not at stake.

18 On the issue of intelligence agencies 

19 secretly and without any process at all asking 

20 companies for data, we have found that Australia, 

21 Canada, France, Germany, and the U.K. allow their 

22 governments to ask private entities voluntarily to 
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1 disclose data to the government. 

2 In the U.S. the government is not 

3 allowed to seek voluntary transfers. A neutral 

4 judicial body must approve the government's 

5 request for data.

6 Last week's resolution by the European 

7 Parliament recognized extensive surveillance 

8 systems in EU member states, and the lack of 

9 control and effective oversight that some EU 

10 member states have over their intelligence 

11 community. 

12 The resolution also questioned the 

13 compatibility of some member state's massive 

14 economic espionage activities within the EU, with 

15 the EU internal market and competition laws. The 

16 parliament did not go into the detail of our white 

17 paper, but its resolution reflected the baseline 

18 findings of our research, that there are 

19 substantial deficiencies in transparency about and 

20 controls over national security access to data in 

21 countries outside the U.S. 

22 Thus when also considering the cross-
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1 border sharing arrangements available to 

2 governments for information they collect through 

3 surveillance, it is misleading in the extreme to 

4 contend that so-called regional clouds provide 

5 individuals with security from government 

6 surveillance. 

7 I commend this Board for engaging in an 

8 assessment of U.S. surveillance practices and 

9 looking at how these practices relate to our 

10 counterparts. There are no guarantees in the U.S. 

11 or elsewhere that agencies will abide by the laws 

12 restricting national security surveillance, but 

13 the degree of authorization required and the kind 

14 of review that occurs is obviously relevant to a 

15 determination of how well personal privacy and 

16 personal liberty are protected. 

17 Thank you again for the opportunity to 

18 present the findings of our white paper and I'll 

19 look forward to your questions.

20 MR. MEDINE: Thank you very much. 

21 I want to turn to the ICCPR for a 

22 moment, and as I understand it there are really 
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1 two issues here. One is the jurisdictional test, 

2 and if you pass that then the substantive test 

3 with regard to evaluating whether the 702 program 

4 affords appropriate protections or is arbitrary in 

5 some fashion.

6 I want to start with the jurisdictional 

7 issues, and that is, I guess there are three 

8 interpretations of the applicability of the 

9 treaty. One is that there has to be both 

10 territorial presence and jurisdiction. The other 

11 is there could be one or the other. And I guess 

12 the co-approach, which is they sort of split it, 

13 and that is there is a respect requirement across 

14 the board and an ensure requirement only subject 

15 to the territorial and jurisdictional issues.

16 I want to ask about the jurisdictional 

17 side. As we know from discussion earlier today 

18 and what's been made public is the information 

19 that's being collected under the 702 program is 

20 being collected in the United States, albeit about 

21 non-U.S. persons. 

22 I guess my question is for the 
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1 panelists, how should we, how should one interpret 

2 jurisdiction? It's not going to be up to us to 

3 interpret it, but in terms of understanding 

4 jurisdiction, is it jurisdiction over the 

5 information, which may be here, is it jurisdiction 

6 over the person, who may be elsewhere? And how 

7 would that apply, both in sort of friendly and 

8 unfriendly countries, in terms of the scope of our 

9 responsibilities?

10 MR. BELLINGER: I'll take a stab at 

11 that. Let me say a couple of things. One, just 

12 to reiterate that the U.S. has in fact reaffirmed 

13 its position again that the ICCPR does not apply 

14 extra-territorially and the point that the 

15 individuals have to be under the power and 

16 control. 

17 You know, I get sort of the novel 

18 suggestion that anybody who is subject to 

19 electronic surveillance is therefore under U.S. 

20 power and control. But I don't think that's 

21 actually a credible argument. 

22 Even the Human Rights Committee I think 
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1 would not go so far as to say that if one can 

2 touch a foreign national through surveillance that 

3 that is someone who is under U.S. power and 

4 control. 

5 The fact that the surveillance may be 

6 then collected ultimately inside the United States 

7 I think does not change the fact that the 

8 collection is being done of persons who are 

9 outside the United States. And so I think that 

10 does not change the, either the essential 

11 jurisdictional element that it does not apply 

12 extra-territorially outside the United States, and 

13 that those individuals are within the power and 

14 control of the United States. 

15 Again, these are things that one might 

16 wish were so, and I'm not sure that there's as 

17 much of a disagreement between me and Laura Pitter 

18 as she suggests. 

19 If one were writing a new treaty and 

20 could get people to agree to certain things one 

21 might agree that there might be, you know, policy 

22 limitations that one might accept. 
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1 But the way this particular treaty is 

2 written now, certainly the view of the United 

3 States government, and I frankly think I am not 

4 aware of any single government in the world, and I 

5 mean this is what I mean, governments who believe 

6 that their right to conduct electronic 

7 surveillance of people outside their territory is 

8 controlled by the ICCPR. I would be very 

9 surprised if we found any European government, as 

10 upset as they might be with electronic 

11 surveillance by the United States, who would say 

12 the Article 17 of the ICCPR limits our ability to 

13 collect outside our borders. 

14 And in fact, the German government in a 

15 submission made to the European Court of Human 

16 Rights interpreting the European Convention on 

17 Human Rights argued that that convention did not 

18 limit its electronic surveillance of Uruguayans 

19 outside of Germany. 

20 So again, the view of governments is 

21 that this does not have jurisdictional control 

22 over people who are outside their territory.
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1 MR. MEDINE: I just wanted to follow 

2 up. What is the scenario where someone would be 

3 in our territory and not within our jurisdiction? 

4 Because the statute, the treaty says both 

5 territory and jurisdiction. Are there other 

6 situations where one would apply but not the 

7 other?

8 MR. BELLINGER: Well, certainly there 

9 would be people who would be, theoretically there 

10 could be people who are not in our territory and 

11 who could be subject to our jurisdiction. That 

12 was the problem that Eleanor Roosevelt was trying 

13 to solve at the time, to think about what the 

14 converse might create.

15 MR. MEDINE: Okay, thanks. Ms. Pitter.

16 MS. PITTER: Well, first of all, the 

17 German position was taken in 2008 before these 

18 revelations came forward and they've since 

19 sponsored a U.N. resolution which underscores the 

20 importance of respecting the right to privacy. 

21 So I would say that, you know, Koh's 

22 interpretation is that there's on the one hand a 
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1 duty to ensure the rights in the covenant to those 

2 within a state's territory and jurisdiction, and 

3 then there's also a duty to respect the rights of 

4 individuals outside of the territory, the actual 

5 territory of the United States. 

6 So there's the duty to respect is 

7 what's important here, and so there is an 

8 obligation under the ICCPR, even with the 

9 jurisdictional clause, to respect the rights to 

10 privacy of those outside the United States. 

11 But this all, as you said, is happening 

12 in the United States. I mean the data is flowing 

13 through U.S. borders, although I'm not sure about 

14 the backbone upstream collection, where exactly 

15 that's taking place. So absolutely, yeah, 

16 absolutely, I mean I think that it would be the 

17 duty to respect the right to privacy is what's 

18 implicated here. 

19 MR. MEDINE: Thank you. Judge Wald.

20 MS. WALD: I've got two questions I 

21 think for Mr. Bellinger. First is I think we 

22 recognize that the government has now reaffirmed 
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1 its earlier position about what the ICCPR means in 

2 relation to people abroad. But I wondered if 

3 you'd just say a word about how they dealt with 

4 the question of Article 31 of the Vienna 

5 Convention on the interpretation of treaties 

6 insofar as, as I remember it, you know, deference 

7 should be given to the official interpreters of 

8 the -- which in this case I believe, you know, 

9 have taken a much broader interpretation of that.

10 And I think a couple of our Supreme 

11 Court justices have said in several cases that 

12 when you're interpreting, when they're 

13 interpreting a treaty one should look to the 

14 interpretations, maybe for guidance, maybe not 

15 controlling, of other parties to the same treaty. 

16 Just a word or two on those two aspects of the 

17 reasoning which led to what is, is the 

18 reaffirmance of it. 

19 MR. BELLINGER: Right, and I think what 

20 you're talking about is the General Comment 31 of 

21 the Human Rights Committee.

22 MS. WALD: Yeah, yeah.
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1 MR. BELLINGER: Which certainly in the 

2 view of the United States, and again, I'm not 

3 aware of any government in the world who believes 

4 that the views of the Human Rights Committee 

5 actually are legally binding. 

6 The Human Rights Committee was set up 

7 to monitor compliance and it makes statements 

8 which governments, including the United States, 

9 give respect to but we certainly don't, neither we 

10 nor other countries believe that that is the 

11 definitive interpretation of the treaty, nor do we 

12 believe that it's legally binding.

13 MS. WALD: Okay. My second question --

14 MS. PITTER: I was just going to add, 

15 sorry.

16 MS. WALD: Go ahead.

17 MS. PITTER: That it is, the Human 

18 Rights Committee is a very authoritative source 

19 regarding the interpretation of the covenant. And 

20 I mean the U.S. is under an obligation to give 

21 effect to the rights in the treaty in good faith. 

22 So what the Human Rights Committee has said in 
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1 that regard is very important.

2 MR. BELLINGER: And if I could just 

3 say, because these are important points right now, 

4 including for treaties, frankly the Human Rights 

5 Watch is extremely interested and having gotten 

6 through the senate the U.N. Convention on 

7 Disabilities. 

8 So you know, Human Rights Watch can 

9 speak for itself, but certainly the view of the 

10 U.S. government and of most human rights 

11 organizations is that the statements made by these 

12 treaty compliance groups, while due great respect, 

13 are not binding on the United States. 

14 If they were in fact considered to be 

15 binding on the United States, those would in fact 

16 fundamentally change U.S. obligations under the 

17 treaties and we would never get any treaties 

18 through the senate, including the treaty that both 

19 Laura and I would very much like to get through 

20 the senate, the U.N. Disabilities Convention.

21 MS. WALD: Okay. My second question 

22 very quickly is that acknowledging what 
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1 everybody's about, that this big debate in the 

2 international world will continue probably despite 

3 the most recent position we've taken, and given, 

4 you know, all of the people allied with it, the 

5 official interpreters, whatever they're called, 

6 Harold Koh, Sara Cleveland, Manfred Nowak, who's 

7 the U.N.'s leading expert on the ICCPR, my 

8 question to you deals with the last paragraph of 

9 your both oral and written testimony, and that is 

10 that you would see no problem with a policy which 

11 gave greater consideration to the rights of 

12 non-U.S. persons within the surveillance context, 

13 alluding to the fact that the President in his 

14 directive suggested that.

15 But I'm wondering if you, having served 

16 the position you did as counselor in the State 

17 Department, have any more specific ideas about in 

18 this context 701, or maybe even in other 

19 surveillance programs we could do just that?

20 MR. BELLINGER: Thank you, Judge. It 

21 is a great question. I have not actually given a 

22 lot of thought to that.
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1 MS. WALD: Maybe a little.

2 MR. BELLINGER: My general sense from 

3 the surveillance that I saw was in fact that we 

4 are very targeted on specific intelligence 

5 requirements. 

6 These are not broad dragnets of the 

7 surveillance of average individuals and so this is 

8 not a great violation of the rights of privacy of 

9 every single foreign national, that's very much 

10 focused on individuals who may pose a national 

11 security threat or for which the United States has 

12 a valid intelligence interest.

13 MS. WALD: Would you, for instance, 

14 think that taking national security, assuming you 

15 didn't have a national security risk, that 

16 basically non-U.S. persons we should try to 

17 approximate as much as we can within those 

18 restrictions the equal treatment in use, 

19 retention, that kind of thing of non-U.S. persons 

20 in our surveillance, or not? 

21 MR. BELLINGER: I think that some of 

22 the things that the Obama administration, 
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1 President Obama has been focusing on to ensure 

2 that, particularly for the information that is 

3 collected, that we ensure that it is kept private. 

4 I mean I would be personally, I haven't 

5 seen this happen, but I would be personally 

6 extremely concerned if we found that the United 

7 States had collected information about foreigners 

8 great or small, either a world leader or a lesser 

9 known person, and then we're not careful with that 

10 information and were to let it out. That would 

11 very much interfere with that individual's right 

12 to privacy. 

13 I think, you know, as a national 

14 security official it's important for us to collect 

15 the information that we've collected, but we need 

16 to be extremely careful with it. So my sense is 

17 that as a policy matter these privacy concerns are 

18 important.

19 MR. MEDINE: Mr. Dempsey.

20 MR. DEMPSEY: My question I guess for 

21 Laura Pitter and maybe also for Mr. Sieber. Among 

22 the major, certainly the countries that Chris Wolf 
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1 looked at and cited, but among the other major 

2 democracies that do foreign intelligence 

3 surveillance, is there anyone that has a law which 

4 you would point to as a better model? 

5 MR. SIEBER: Could you ask the 

6 question? 

7 MR. MEDINE: Is there a country that 

8 has a better model of surveillance than ours? Is 

9 that --

10 MR. DEMPSEY: Yeah. In other words, 

11 what other country has a better model, a better 

12 law, more checks and balances, more controls, more 

13 limits?

14 MR. SIEBER: In general. 

15 MR. MEDINE: In general, checks and 

16 controls balancing privacy and civil liberties and 

17 national security.

18 MR. SIEBER: It's a very broad 

19 question -- 

20 MR. DEMPSEY: Just pick one.

21 MR. SIEBER: Because you have to 

22 consider many, many aspects, not only the 
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1 extraterritorial implication. I just can give you 

2 some reliable differences a between the German 

3 system and the U.S. American, that's what I can 

4 witness on. 

5 If you have a look at the German system 

6 you have to see that Germany has a very strong 

7 constitutional court and is very much attached to 

8 fundamental rights. This is a reaction to the 

9 Nazi cruelties and any steps towards this 

10 direction should be prevented. This is the reason 

11 for some very basic differences between the U.S. 

12 and Germany. 

13 The first one, for example, is that 

14 intelligence agencies in Germany have no executive 

15 powers. So they cannot execute arrest warrants or 

16 anything like that. They just can collect the 

17 information. This is based on the idea that the 

18 lack of control which we have in this area of 

19 intelligence agencies must be balanced by lesser 

20 constrained measures.

21 Secondly, Germany has constitutionally 

22 founded strong separation of powers and separation 
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1 between the police and the intelligence agencies. 

2 This has been changed a little bit after 9/11 but 

3 still there is a fundamental separation. 

4 Information exchange is only possible 

5 in a very limited way for very, very serious, 

6 serious crimes. 

7 So I would say the differentiation 

8 between the institutions is stricter. We don't 

9 have multipurpose institutions like the FBI. 

10 On the institutional side there is an 

11 absolute strong separation between these 

12 institutions, despite certain common datas and 

13 things which we have done after 9/11. 

14 You could go further, if I compare it 

15 and look around at the control agencies which you 

16 have. In Germany it's separated. For internal 

17 surveillance we have a special commission 

18 appointed by the parliament, G-10 Commission who 

19 is doing the job. It's not called a court but the 

20 functions are similar. 

21 And for foreign intelligence agency, 

22 the BND, there is a parliamentary commission who 
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1 does these things. 

2 Maybe one last point, if you look at 

3 the aspect of protection of foreigners' rights and 

4 applicability of the constitution abroad, the 

5 German attitude is more in favor of applying the 

6 national constitutional guarantees. 

7 With respect to the first question, 

8 which is foreign territoriality, section 1 of the 

9 basic law says that the basic law binds all public 

10 authority. And this is in general irrespective of 

11 whether it's in the country or outside the 

12 country. 

13 There are differences of course, but 

14 they have more to do with the different 

15 circumstances, because the risks coming from 

16 abroad might be bigger than coming from within the 

17 countries, and for that reason I absolutely agree 

18 that the systems might be different for internal 

19 intelligence and external. 

20 But it's not based on the fact that we 

21 do not apply the constitutional guarantees abroad, 

22 and it's definitely not based on the fact that we 
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1 are giving different rights to foreigners and to 

2 citizens, at least in this area of dignity rights, 

3 of human rights, and especially in the privacy 

4 rights. 

5 So for example, there was a German 

6 decision of the court which was controlling 

7 intelligence gathering for abroad and which 

8 checked these systems. 

9 So with respect to this question which 

10 we are dealing here, if I generalize it I would 

11 say we are more open to applying these 

12 fundamental rules. We do not reject it as it's 

13 not applicable. We don't go into these 

14 (inaudible) stay out of it. We would apply it, 

15 but then we have a proportionality principle and 

16 we check whether the things are justified. 

17 And for example, in this decision I 

18 mentioned, the court said, yes, dangers coming 

19 from abroad are bigger, bigger dangers, and with 

20 balances and this law was in general justified 

21 with one exception. 

22 It was applied also by law to internal 
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1 conflicts, and the constitutional court said it 

2 cannot apply just like that. 

3 So I think these are the main interests 

4 which I could tell you. It's impossible to say 

5 better or worse. I would never, never do that.

6 MR. MEDINE: Thank you. Ms. Cook.

7 MR. DEMPSEY: We'll come back around.

8 MR. SIEBER: And if you permit 

9 afterwards I would like to say a few words with 

10 these International Convention 17, the 

11 applicability, but I don't want to -- 

12 MR. MEDINE: We'll come around at the 

13 end.

14 MS. COLLINS COOK: So I wanted to thank 

15 you all for coming and to congratulate you for 

16 being the panel that has come the farthest set of 

17 distances to participate today. I think it's very 

18 helpful to have this type of discussion in an open 

19 forum. 

20 We've talked a fair amount today and 

21 all through the day about skepticism about U.S. 

22 law and U.S. practices. I think it's fair to say 
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1 there is also a high degree of skepticism about 

2 the contours -- let me get closer here.

3 I think it's fair to say that there's a 

4 high degree of -- if I can get through this 

5 question without hurting someone, this is really 

6 going to be my goal for the day.

7 (Laughter)

8 MS. COLLINS COOK: There's a high 

9 degree of skepticism about the contours and 

10 applicability of international law as well. So 

11 having experts who are able to speak to these 

12 issues is critical, I think, to us. 

13 And I wanted to draw off of something, 

14 Professor Sieber, that you had mentioned and I 

15 have to confess it was not a focus of mine coming 

16 into today. I had been focused on the ICCPR and 

17 the potential applicability of Article 17. 

18 But you talked about the interests of 

19 states, and if I understood what you said 

20 correctly, that the interest of a state in its own 

21 sovereignty is inviolate, that surveillance by one 

22 country in another country is a violation of that 
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1 sovereignty, there is no exception under customary 

2 international law that would make that any less of 

3 a violation of the state's sovereign status or 

4 rights. 

5 So that's the academic point. That 

6 would lead me to think that no one was conducting 

7 surveillance on anyone else, that no country is 

8 doing surveillance. 

9 But as a practical matter I think it's 

10 fair to say that every country is either engaging 

11 in foreign intelligence collection or attempting 

12 to engage in foreign intelligence collection.

13 So if you can explain to me how you can 

14 have a principle of customary international law, 

15 here the absence of an exception that is honored 

16 by not one country in the world, as I understand 

17 it.

18 MR. SIEBER: Yes, I remain with the 

19 saying that there is no permission of espionage 

20 under international law because the principle of 

21 self-defense, that needs an armed conflict for it. 

22 It's not there for the ordinary case. 
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1 And customary law would require an 

2 opinio juris, the conviction of the people that 

3 espionage is right. 

4 But our estimations, that are split. 

5 If we are considering our own law, we say, yes, we 

6 do it and we give them a medal if they are 

7 successful. If we are considering the other, we 

8 say it's illegal.

9 So there are two regimes of law which 

10 come to different results. We live with that but 

11 we cannot say that international law has a general 

12 view that we can, that we can do it. 

13 We have this problem in a very 

14 interesting case with the German reunification 

15 because when the two parts of Germany came 

16 together, there have been people doing espionage 

17 in East Germany and they are now under our 

18 jurisdiction. 

19 This question came up and here again 

20 the Constitutional Court said there is no general 

21 violation of international law, and I think you 

22 agree with that. We have to live with this 
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1 conflict. 

2 And in the global world that's normal. 

3 The world is getting so diverse that we have many 

4 conflicting regimes today now, so we can stand 

5 with that.

6 MS. COLLINS COOK: So I guess my 

7 question, perhaps Mr. Bellinger, you can speak to 

8 this, is it a violation of international law in 

9 terms of infringing the interests of another state 

10 to engage in sort of foreign surveillance? 

11 MR. BELLINGER: I was going to jump on 

12 that as well. And the answer to that I think is 

13 clearly no. I am not aware of any country who 

14 believes that the U.N. Charter's statement on the 

15 protection of territorial integrity and sovereign 

16 equality of states actually prohibits electronic 

17 surveillance of another country. 

18 Certainly if that were the 

19 understanding of our senate that in becoming party 

20 to the U.N. Charter that prohibited us from spying 

21 on another country because it would violate their 

22 sovereign equality or territorial integrity, then 
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1 we would get out of the U.N. Charter immediately. 

2 But I am not aware that any other country believes 

3 that as well. 

4 So there is not, the principle of 

5 territorial integrity and sovereignty would apply 

6 to, say, for example, use of force. International 

7 law does not prohibit electronic surveillance or 

8 spying. Domestic law may. 

9 And so that's really, you know, when we 

10 talk about international law, that basically means 

11 that there is a compact between countries. Judge 

12 Wald knows this very well, you know. Countries 

13 have to have agreed that they are not going to do 

14 these things to each other. 

15 And in the U.N. Charter, the U.N. 

16 Charter was not saying we promise not to spy upon 

17 one another, we were saying we promise not to use 

18 force against one another. 

19 U.S. surveillance in another country 

20 might violate the other country's law, but it is 

21 not a violation of international law.

22 MR. MEDINE: Let's go on to another 
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1 question. We'll give Ms. Brand a chance and then 

2 we'll come back.

3 MR. SIEBER: Because I think I have to 

4 contradict.

5 MS. BRAND: All right. Let's see if 

6 this microphone will work now.

7 Thank you all for being here today. 

8 One of the things I find frustrating about this 

9 discussion, not here specifically but in general 

10 is that there is a tendency to not distinguish 

11 between what is law and what is -- it's not 

12 working is it? 

13 And what is either what people would 

14 like to be the law or what is a matter of policy. 

15 And John, thank you for making that 

16 distinction very clearly in your remarks. 

17 I was having a little bit of a harder 

18 time, Laura, following where you were moving from 

19 what you think is actually binding law to what is 

20 not. 

21 And so I wanted to know if we are 

22 looking, setting aside policy, aspirational policy 
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1 for a moment, if we were trying to determine 

2 whether what the government is doing under 702 is 

3 legal, do you think there is some binding 

4 international law instrument that affects that 

5 questions?

6 MS. PITTER: Yes. I mean from my 

7 position it is a violation of Article 17 of the 

8 International Covenant on Civil and Political 

9 Rights. The United States does not recognize 

10 that, and that's part of the problem.

11 MS. BRAND: So let me just ask a 

12 question then. If the U.S. government doesn't 

13 recognize that, what is the body, what is the 

14 document, what is it that then makes that law 

15 binding on the U.S., on the agencies implementing 

16 702?

17 MS. PITTER: It's the treaty itself. 

18 As Mr. Bellinger said, you know, a treaty is 

19 something that governments have agreed to abide by 

20 and to honor the commitments in the treaty in good 

21 faith.

22 MS. BRAND: And what is the body that 
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1 has the last say on the interpretation of the 

2 treaty, right? Because obviously the U.S. 

3 government interprets the treaty differently from 

4 the way you interpret the treaty. 

5 Is there some other body besides the 

6 U.S. government itself whose interpretation of the 

7 treaty is then binding on the way the U.S. 

8 agencies implement it?

9 MS. PITTER: Well, the Human Rights 

10 Committee is one of the most authoritative sources 

11 on this, but -- 

12 MS. BRAND: But is it legally binding, 

13 right? That's my question, not is it persuasive, 

14 is it binding? 

15 MS. PITTER: I mean from the opinion of 

16 many other governments it is. The treaty is 

17 binding upon them. The United States does not 

18 recognize the extraterritorial application of it.

19 MS. BRAND: And this is an honest 

20 question, give me an example of a country that 

21 views the ICCPR to have extraterritorial 

22 application with respect to surveillance of 
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1 foreigners abroad that itself that takes its own 

2 advice or heeds its own interpretation.

3 MS. PITTER: So this surveillance, as I 

4 said, is a novel issue. It's not something that's 

5 been addressed by the case law, and especially not 

6 since the revelations from Snowden which have 

7 disclosed, I think even to policy makers in many 

8 countries, the degree to which the law, the 

9 domestic law on the books is actually being 

10 applied, and the vastness of the programs, how 

11 much data is actually being collected. 

12 So it's a novel interpretation, I mean 

13 it's a novel question, as it is in the United 

14 States --

15 MS. BRAND: I'm sorry to cut you off 

16 but we have a strict timekeeper here, the 

17 Chairman, and I want one last question.

18 I'm interested in your interpretation 

19 of what constitutes control and how being 

20 surveilled essentially would put someone within 

21 the control. 

22 My concern about that interpretation in 
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1 part is that I'm not sure what meaning is left in 

2 the phrase, under its jurisdiction. If the 

3 statute talks about territory and jurisdiction, if 

4 jurisdiction means something in addition to 

5 territory, it seems like a meaningless phrase if 

6 it can include surveillance.

7 MS. PITTER: Well, it is meaningless in 

8 the sense that the United States has taken up, 

9 used the technology to conduct surveillance on a 

10 very mass scale. So it affects an enormous number 

11 of people. 

12 The, you know, jurisdictional clause 

13 has been interpreted extra-territorially in the 

14 context of detention and torture, in which a 

15 smaller number of people have been affected. But 

16 when you're talking about surveillance --

17 MS. BRAND: But detention, I mean 

18 someone being detained or tortured is, I would 

19 say, much more clearly within the control of the 

20 government who has detained or is torturing them, 

21 right? 

22 So my question is when you get into 
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1 surveillance and the person is clearly not within 

2 the physical custody of the government in 

3 question, what is it within the ambit of the 

4 treaty? 

5 MS. PITTER: So you can look at it two 

6 ways there. You know, their communications are 

7 within the effective control of the government and 

8 so that's one way to look at the obligation. 

9 But in addition, they have an 

10 obligation to ensure the rights within the 

11 covenant territorially, but also to respect the 

12 rights in the covenant extra-territorially. 

13 So although they are not necessarily 

14 bound, you know, to enact legislation domestically 

15 regarding, you know -- well, they're not 

16 necessarily bound to ensure the rights of 

17 individuals with regards to privacy 

18 extra-territorially, they are bound to respect 

19 those rights extra-territorially. 

20 MS. BRAND: I see my time is up.

21 MR. MEDINE: Mr. Garfield, in your 

22 statement earlier you indicated that the 
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1 revelations about the surveillance programs, 

2 particularly 702, has had significant 

3 international impact with regard to business 

4 dealings with U.S. firms, and you proposed a 

5 number of steps to ameliorate that, and I wanted 

6 to ask you about some of them. 

7 And you also mentioned one of them, 

8 namely transparency in your remarks earlier. Do 

9 you have thoughts about what level of transparency 

10 would be helpful to companies, but taking into 

11 account national security concerns? 

12 As you know, our first report on 215 

13 did recommend greater transparency, but in terms 

14 of disclosures that a company can make about 

15 surveillance requests from the U.S. government, so 

16 long as that took into account national security. 

17 And I guess in particular if you have 

18 comments on the agreement that was reached between 

19 the Department of Justice and a number of firms, 

20 whether that agreement goes far enough and 

21 provides sufficient detail to give comfort to 

22 business partners of those firms overseas.
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1 MR. GARFIELD: Thank you for the 

2 question, first of all. The agreement with the 

3 Justice Department is viewed as a significant step 

4 forward. There are additional steps that can be 

5 taken that would be helpful as well. 

6 One is the level of detail that the 

7 companies are able to share, including 

8 disaggregation of data between Section 215 and 

9 702, or whether it's a national security letter. 

10 So a greater level of granularity would be 

11 helpful. 

12 The second part of that is it is not 

13 only important that the companies be able to share 

14 out information but that the government share 

15 information as well and provide greater 

16 transparency, which is often lost in these 

17 discussions. 

18 The debate that's been taking place 

19 today speaks to the importance of greater 

20 transparency because 702 already includes a number 

21 of protections that are not generally known, 

22 particularly internationally. 
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1 To Christopher Wolf's point, if they 

2 were more well-known it would be clearer the 

3 extent to which steps are being taken in the 

4 United States that are not necessarily being taken 

5 in other countries.

6 MR. MEDINE: And you also recommended, 

7 made a couple of other recommendations that you 

8 put forward were oversight, the importance of 

9 oversight and in discriminant collection.

10 And I guess the question is in the 702 

11 program isn't there already oversight through the 

12 Foreign Intelligence Surveillance Court and some 

13 of the internal government processes? 

14 And with regard to indiscriminate 

15 collection, I think as we heard earlier there has 

16 to be a foreign intelligence purpose, and so it's 

17 somewhat constrained. Do you think that with 

18 regard to this program it meets those 

19 requirements?

20 MR. GARFIELD: Correct. My 

21 recommendations there weren't intended to suggest 

22 that it in fact was indiscriminate. It was 
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1 suggested, it was a suggestion that taking steps 

2 to be clear about the protections that are in 

3 place and to the extent it is not, it is in fact 

4 not indiscriminate, to reaffirm that would be 

5 helpful as we go about doing our business 

6 internationally.

7 MR. MEDINE: And Mr. Wolf, you analyzed 

8 other country's laws and shown that they're not 

9 only not better but maybe not even as good as our 

10 laws by some criteria. What lessons should we 

11 draw from that in terms of how countries should 

12 conduct their surveillance programs?

13 MR. WOLF: So the purpose of our white 

14 paper and our research was really to be expository 

15 than to reach judgements and to pick winners and 

16 losers or to decide whose was better or best. 

17 But we thought it was important in 

18 light of the claims that were being made, 

19 particularly by the cloud industry in Europe that 

20 there is national security access obviously that 

21 goes on in the EU and elsewhere around the world, 

22 and often without the controls and safeguards and 
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1 transparency that we have here. 

2 So the overall conclusion that we 

3 reached is that this is a global problem. 

4 Obviously it's one that has been focused on 

5 intensively here in the United States because of 

6 the Snowden revelations, but it is an 

7 international issue that needs to be resolved 

8 internationally, particularly with the sharing 

9 that goes on among intelligence authorities. 

10 It is heartening that the European 

11 Parliament in its resolution last week adopted the 

12 draft report that came out in January that focused 

13 on the European intelligence gathering practices. 

14 We hope that the data protection 

15 authorities in Europe who've been vigorous critics 

16 of the NSA practices will comment on their own 

17 country's practices. They've been relatively 

18 silent on that, and we think the debate that has 

19 to be made should be among all those interested in 

20 privacy protection, and obviously that would 

21 include the privacy commissioners abroad.

22 MR. MEDINE: Obviously countries have a 
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1 lot of self-interest in conducting surveillance 

2 programs. Do you see a forum in which countries 

3 can or even should agree with the methods by which 

4 they conduct surveillance?

5 MR. WOLF: So that's well above my pay 

6 grade. I really don't have a view on that. 

7 I do have, if I can just mention on the 

8 transparency point, we did a white paper in August 

9 that then general counsel of the Commerce 

10 Department Kerry cited in his speech at the German 

11 Marshall Fund that actually showed on a per capita 

12 basis access by national security and law 

13 enforcement on a per capita basis is larger 

14 outside the United States in many instances.

15 MR. MEDINE: Judge Wald.

16 MS. WALD: I have two questions for 

17 Ms. Pitter. Given what most or many observers 

18 concede are widely varying practices in different 

19 countries about surveilling their own and other 

20 country's citizens, would you advocate, as we 

21 sitting here have to make some observations, maybe 

22 recommendations on 702, would you advocate that we 
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1 unilaterally, we recommend unilaterally putting in 

2 place one and the same protections for non-U.S. 

3 person surveillance that we have for U.S. 

4 citizens? Or two, raising the non-U.S. citizen 

5 person protections to the level that the official 

6 bodies of these international organizations that 

7 we've talked about say they should be? 

8 If you come out on the second, what 

9 specific criteria do we have to go on as to what 

10 those practices would be? 

11 In other words, there's a slightly 

12 cynical end to the question, what would be the 

13 additional protections in real time to privacy 

14 interests of non-U.S. persons if the U.S. took a 

15 position that the ICCPR does apply to our 

16 activities outside territorial U.S., but that 

17 we've already met those standards, such as seems 

18 to be the case with some of the other countries 

19 who espouse the official broader interpretation of 

20 ICCPR but then go on their way, as Mr. Wolf 

21 suggested, and don't really raise those? 

22 MS. PITTER: This is to me?
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1 MS. WALD: Yes, this is to you.

2 MS. PITTER: So, I mean I think one 

3 clear change that needs to be made is the purpose 

4 of the surveillance needs to be much more 

5 targeted. The definition of foreign intelligence 

6 information is just much too broad. It 

7 encompasses, you know, things that, conversations 

8 that could be just about generally the foreign 

9 affairs of the United States. 

10 And I know we heard in the panel 

11 testimony earlier that that is somewhat reined in 

12 by certifications but those are not public and 

13 we've not seen them.

14 There should be a lot more transparency 

15 in the law. I think the difference in the German 

16 law is that there is a lot more transparency. The 

17 capacity also is less in Germany. I mean the U.S. 

18 has vast capacity, so you know it affects a lot 

19 more people. 

20 But definitely a more narrow, a more 

21 targeted approach, and applying, you know, 

22 necessary and proportionate principles to the 
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1 surveillance as well, I think would go a long way. 

2 There's probably plenty of room for 

3 recommendations. I probably can't get into all of 

4 them here but that would be --

5 MS. WALD: In general would your 

6 standard be that there should be a presumption 

7 that we treat non-U.S. persons like U.S. persons 

8 in our surveillance activities, or rather that we 

9 go to the best practices we can pull from that 

10 people who endorse the ICCPR, even if we don't 

11 actually endorse that application?

12 MS. PITTER: So I think that there can 

13 be differences in the law itself but it has to, 

14 the differences have to be ones that don't impair 

15 the impact of the right itself. 

16 So the right to privacy has to be part 

17 of, it has to be made part and parcel of the 

18 assurances, but they can be different for 

19 practical reasons when it comes to --

20 MS. WALD: Can you give us, in my 

21 remaining few seconds, some application of what 

22 you've just said to 702? 
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1 MS. PITTER: Well, I'd like to go into, 

2 you know, a more detailed analysis here but right 

3 now there's --

4 MS. WALD: Well, just quickly.

5 MS. PITTER: There's not a warrant 

6 requirement, for example, under 702 for 

7 individuals, but there should be -- it may be that 

8 it's not a practical requirement to have a warrant 

9 for individuals outside of the United States. 

10 And it's not just individuals under 

11 702, it's also facilities and about targeting as 

12 well. 

13 But the procedures that are in place to 

14 protect against sort of suspicionless, you know, 

15 there's no standard for what authority has to find 

16 before it can target an individual. The main 

17 distinguishing principle is that it's a foreigner, 

18 and that that information is going to be acquired 

19 for foreign intelligence purpose, for foreign 

20 intelligence purpose, so that is too broad.

21 MS. WALD: Okay.

22 MS. PITTER: Does that make sense? 
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1 MS. WALD: Yes. All right, very 

2 quickly I guess, Mr. Wolf, your testimony, you 

3 know, recited the report about the lesser, 

4 basically the lesser protections most other 

5 countries including our close allies give to 

6 privacy, at least despite some of their countries 

7 adherence to the ICCPR's broader definition of 

8 privacy, yet you also note that the economic risks 

9 to U.S.-based telecommunication companies from 

10 threats both from competing companies inside those 

11 countries and from the governments themselves that 

12 they may balkanize and insist on collection and 

13 storage activities being conducted in-country 

14 poses a real risk. 

15 Is it above your pay grade to give us 

16 some indication of what line or policies the U.S. 

17 should follow given those two competing concerns?

18 MR. WOLF: Well, I think our concern in 

19 doing the work that we did on the white paper was 

20 the misperception that was arising --

21 MS. WALD: Let's assume you've done 

22 those and that they are real, but also are real 
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1 the threats to the competitiveness of U.S. 

2 companies if foreign governments and peoples get 

3 very excited and want to keep everything inside 

4 their own countries.

5 MR. WOLF: So our position is that 

6 they're deceiving themselves if they think that 

7 when they keep data presumably within the four 

8 borders, four corners of their own country that 

9 it's safer from surveillance, not only from their 

10 own surveillance authorities, but of course 

11 through the sharing arrangements from surveillance 

12 authorities from elsewhere around the world, and 

13 that the Balkanization of data is not a useful 

14 global phenomenon at all.

15 MS. WALD: Well, what can the U.S., or 

16 what could we recommend they bring them together? 

17 MR. MEDINE: Judge, your time has 

18 expired. Mr. Dempsey.

19 MS. WALD: Right. You can think about 

20 it.

21 (Laughter)

22 MR. DEMPSEY: On my last round we were 
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1 talking about what were, if any country's laws 

2 that did a better job here, and Mr. Garfield, you 

3 were ready to jump in. Do you remember what you 

4 wanted to jump in on? I wanted to give you a 

5 chance to make the point, if you still remember 

6 what it was.

7 MR. GARFIELD: It really was the point 

8 that was made in response, which is that in fact 

9 our experience in carrying out our business is 

10 that there aren't many, if any, other countries 

11 that have as many safeguards in place. 

12 The lack of open discussion through 

13 multinational engagement as well as transparency 

14 here in the U.S. furthers that false perception 

15 that somehow other nations are doing more than we 

16 are. And that is certainly something that whether 

17 through legislation or recommendations from the 

18 PCLOB, we can do something about.

19 MR. DEMPSEY: The question for Laura 

20 Pitter, a couple of other witnesses have raised 

21 this and a couple of times I grabbed for the book 

22 in order to raise it and didn't get a chance to, 
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1 the definition of foreign intelligence, as I read 

2 it, it means information that relates to the 

3 ability of the United States to protect against 

4 actual or potential attack, grave hostile acts of 

5 a foreign power, sabotage, international 

6 terrorism, international proliferation of weapons 

7 of mass destruction, or clandestine intelligence 

8 activities. None of those are too broad, I would 

9 think. 

10 And then it says, information with 

11 respect to a foreign power or foreign territory 

12 that relates to the conduct of the foreign affairs 

13 of the United States. 

14 I mean isn't that precisely what 

15 foreign intelligence is supposed to be about, 

16 information with respect to what foreign countries 

17 are doing that might affect our foreign affairs? 

18 Why is that too broad?

19 MS. PITTER: I think that the first 

20 category of information that you said could, it 

21 would be permissible. But the general foreign 

22 affairs of the United States allows for the 
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1 collection of a vast amount of information that 

2 does not necessarily have any national security 

3 purpose.

4 MR. DEMPSEY: No, but it has foreign 

5 affairs purpose. It is by definition about the 

6 intent of foreign governments, and are you saying 

7 that other countries self-restrain themselves from 

8 trying to understand what their adversaries are 

9 doing, even in matters that don't involve attack 

10 and so on?

11 MS. PITTER: I mean if other country's 

12 laws are overbroad and vague then they're in 

13 violation of, you know, the International Covenant 

14 on Civil and Political Rights as well.

15 MR. DEMPSEY: Well, I think John would 

16 say that if everybody is doing it, it probably 

17 isn't a violation of the treaty. Everybody didn't 

18 bind themselves not to do what they all were doing 

19 at the time they bound themselves to the treaty.

20 MS. PITTER: Well, you know, the 

21 revelations about how this is applied are just 

22 coming out now and there are going to be 
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1 challenges and there already are challenges to the 

2 law. 

3 And I think we're going to find that 

4 there is room certainly for reining in the 

5 overbroadness of some of the statutes as they 

6 exist right now. 

7 I think that because it allows for the 

8 communications of things that don't necessarily 

9 have to do with national security, that it just, 

10 it's overbroad and it's impacting, you know, the 

11 United States in other ways.

12 MR. DEMPSEY: In what way is the 

13 collection of information about foreign affairs 

14 overbroad? 

15 MS. PITTER: Because it could be, you 

16 know, someone talking about, you know, their 

17 opinions about the foreign affairs of the United 

18 States --

19 MR. DEMPSEY: Not someone talking about 

20 their opinions, it's the information with respect 

21 to a foreign power. So this is not Joe Schmoe in 

22 Germany saying I like or don't like the United 
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1 States, this is about what Germany thinks about 

2 the United States.

3 MS. PITTER: It merely has to relate to 

4 the foreign affairs of the United States -- 

5 MR. DEMPSEY: Yes.

6 MS. PITTER: In my opinion it's too 

7 broad. It allows in for much too broad a type of 

8 communication.

9 MR. DEMPSEY: No, I'll yield. I'd like 

10 to have another round, a third round if we could, 

11 but I'll yield for now.

12 MS. COLLINS COOK: Mr. Bellinger, I 

13 think you had put your finger up midway through 

14 that and I'd like to follow on this conversation 

15 as well because it struck me.

16 First, where would you draw the line? 

17 And I'm struggling to determine what precisely is 

18 impermissible about collecting foreign 

19 intelligence in the category of foreign affairs as 

20 set forth in FISA.

21 MR. BELLINGER: Yeah, so thanks for 

22 that question. And I think this is a very 
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1 important point, and Judge Wald started it and you 

2 have continued it. 

3 We have to be really very clear about 

4 what international law is. International law is 

5 not principles that we think would be fine, policy 

6 principles that you and I might agree. 

7 International law, if we are serious 

8 about international law, and this actually is the 

9 definition of international law, are things that 

10 nations agree to, to be bound by, by treaty or 

11 that is customary internationally, meaning that 

12 countries do it so often that everybody does it 

13 and they do it by a sense of binding legal 

14 obligation. 

15 So two points here, and Judge Wald, I 

16 heard you say that while it is true that other 

17 countries actually take a broader definition of 

18 whether the ICCPR applies extra-territorially, I'm 

19 not aware of any country in the world that 

20 believes that the ICCPR actually binds them with 

21 respect to electronic surveillance, that that 

22 right to privacy in Article 17 actually limits 
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1 their ability to conduct electronic surveillance 

2 of foreign nationals. So that is just not a 

3 treaty obligation that countries have accepted, 

4 even under the ICCPR. 

5 It might be something that human rights 

6 groups wish were the case, but it is not something 

7 that governments have accepted, and certainly not 

8 something the United States government has 

9 accepted.

10 And then just one more round on the 

11 Human Rights Committee. Again, the treaty itself 

12 does not say that the decisions of the Human 

13 Rights Committee, which is basically a group of 

14 academic experts, are binding. Governments who 

15 write treaties know how to write language. 

16 For example, the U.N. Charter says that 

17 we undertake to comply with rulings of the ICJ. 

18 But the human rights monitoring groups, countries 

19 have not said that we undertake to comply with 

20 their decisions. 

21 And in fact, the senate, and all of you 

22 know this, the senate would never agree to cede 
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1 responsibility for the future interpretation of a 

2 treaty to a group of academic experts. That would 

3 take completely out of the hands of the shared 

4 understanding between the executive and senate, 

5 the interpretation of a treaty. 

6 So you know, the United States, and 

7 this is the view of the Obama administration as 

8 well, you know, recognizes that other people may 

9 not agree on the extraterritorial application of 

10 the ICCPR, but you know, no country believes that 

11 the ICCPR actually limits electronic surveillance.

12 MS. COLLINS COOK: So I just wanted to 

13 as a follow-up question to Ms. Pitter. Thank you. 

14 I know we've aimed a lot of our questions at you. 

15 I think there's a sense within the 

16 United States government, a little bit of 

17 exasperation, the concern is that our surveillance 

18 lacks transparency or that we are somehow outside 

19 the mainstream of what other countries are doing. 

20 And I look at 702 in particular and I 

21 see something where our legislative branch has 

22 specifically said exactly what our executive 
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1 branch can do. The executive branch, which is 

2 headed by democratically accountable individuals 

3 then oversees the execution of that authority, it 

4 is subject to the oversight of the judicial branch 

5 and it is subject to the oversight of our 

6 legislative branch.

7 So I guess my question is systemically 

8 what else could the United States be doing to help 

9 build the confidence and trust of other countries? 

10 MS. PITTER: So the oversight so far 

11 has all been in secret. I think that's one 

12 problem. I mean even the first panel today said 

13 they were in the process of declassifying a large 

14 number of documents and they were looking at doing 

15 that because they recognize the importance of 

16 transparency. 

17 The oversight has not, I mean if you 

18 look at what happened with 215, even --

19 MS. COLLINS COOK: I was talking about 

20 Section 702, which is the focus of our --

21 MS. PITTER: We don't know the details 

22 of the oversight regarding 702, so the only 
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1 information I have about oversight would be 

2 regarding 215. And we saw that the judicial 

3 oversight in that context, you know, would up, 

4 there was an opinion that had an impact on the 

5 vast number of communications of Americans that 

6 was kept secret from the Americans, so -- 

7 MS. COLLINS COOK: Well, let me push 

8 back a little bit on this notion that the 

9 oversight is not transparent. 

10 So again, we have a statute that tells 

11 the world exactly what the executive branch must 

12 present to the judiciary, what findings the 

13 judiciary must make, what authority judiciary has 

14 vis-a-vis that application, and the framework for 

15 this surveillance. 

16 We have a public statute that also 

17 tells you exactly what the executive branch is 

18 obligated to share with Congress. So where's the 

19 lack of transparency in that? 

20 MS. PITTER: Well, the judicial 

21 oversight for the 702 program is annual. They 

22 look at just the procedures. They don't actually 
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1 look at the individual targeting requirements. 

2 That's done by an NSA analyst at his computer 

3 desk. 

4 MS. COLLINS COOK: Actually I think if 

5 you were here for the first panel the testimony by 

6 the first panel was that that is not in fact the 

7 case, that it is an ongoing process of oversight. 

8 There are regular reporting requirements, both to 

9 the court and to the Congress, so.

10 MS. PITTER: I was, I did hear the 

11 first panel, and I believe he said that those 

12 targeting decisions by the analysts are reviewed 

13 eventually, but it's not something that's done at 

14 the beginning. So the -- 

15 MS. COLLINS COOK: So if there's not 

16 public review of specific targeting decisions, so 

17 this, the United States government saying we would 

18 like to collect foreign intelligence information 

19 about this specific selector, that's a lack of 

20 transparency that is problematic for you? 

21 MS. PITTER: Well, the transparency, 

22 even the certifications that the FISC court gets, 
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1 there's no, they don't even see the identifiers or 

2 the selectors, they just approve the procedures. 

3 So you know, that's a problem with the oversight. 

4 In terms of --

5 MR. MEDINE: I'm going to let Ms. Brand 

6 pick up since we're at time. So thank you.

7 MS. BRAND: Okay. I guess maybe this 

8 question is directed at John but if anyone wants 

9 to jump in, that's fine. 

10 If the ICCPR did have application to 

11 the U.S. government surveillance of non-U.S. 

12 persons abroad, setting aside the territorial 

13 issue for a minute, what does privacy mean in that 

14 context? 

15 I have found the lack of a universally 

16 accepted definition of privacy very frustrating 

17 writ large across everything that we do, and I 

18 mean the same issue pertains here. So I guess is 

19 there a universally accepted definition of 

20 privacy? Is there a definition of privacy that is 

21 binding on the U.S. government? If not, how would 

22 we find, who would supply such a definition? If 
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1 you can sort of help us understand that.

2 MR. BELLINGER: Yeah, so that's a great 

3 question. And that's really the third prong. I 

4 mean the reason that the ICCPR doesn't apply is, 

5 one, there's the within its territory and subject 

6 to its jurisdiction. Then even if it were subject 

7 to our jurisdiction, then it has to be within the 

8 power and control. 

9 And you know, no one is really going to 

10 legitimately argue that, as I think you said 

11 earlier, power and control in the view of those 

12 who take that interpretation of power and control 

13 is someone that you actually physically have in 

14 your custody, not electronic surveillance. 

15 And then there's the issue, even if 

16 those applied, is something unlawful or arbitrary 

17 violation of privacy? And there are not 

18 definitions that are universally accepted. 

19 You know, people can argue about these 

20 things but for it to be law that a country 

21 actually violates, there has to be an agreed 

22 definition on privacy and there has to be an 
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1 agreed definition on what is arbitrary, and there 

2 just are not those definitions. 

3 You know, again, someone can say that 

4 someone has an absolute right not to have any 

5 country pry into anything that they're doing and 

6 that that's a violation of their privacy, but 

7 there's not an accepted definition of that. 

8 I mean I could frankly imagine if one 

9 were to accept the first part of your premise, 

10 which is that it were to apply extra11 territorially, and let's also say that it were 

12 someone within the U.S. jurisdiction, let's say 

13 someone, the United States is actually holding a 

14 terrorist in another country and we agreed that 

15 the ICCPR applied, we agreed the person was within 

16 our power and control, and then we were to do 

17 extensive interviews of that person about the 

18 person's private life, and then we just publish it 

19 willy-nilly, not as part of a criminal proceeding 

20 but essentially just as a leak, well, you know, 

21 there might be an argument that that might be an 

22 arbitrary intervention with that person's right to 
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1 privacy. 

2 But I think that's -- there's not a 

3 definition of privacy, or of arbitrary, or 

4 unlawful that is binding as a matter of 

5 international law.

6 MS. BRAND: Chris or Laura, any 

7 thoughts on that question? 

8 MS. PITTER: Would you repeat that 

9 question again? 

10 MS. BRAND: Just what does privacy mean 

11 in the ICCPR context? Where does the definition 

12 come from? How would you find the definition? 

13 MS. PITTER: Well, it guards against 

14 unlawful and arbitrary interference with an 

15 individual's privacy, so there has to be a respect 

16 for correspondence, for example, and a respect for 

17 an individual's personal space, and there has to 

18 be an ability to have personal space to 

19 communicate.

20 MS. BRAND: Where are you getting that 

21 definition? 

22 MS. PITTER: Well, that's, I mean 
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1 that's coming from the interpretation of, the 

2 right to privacy is connected to freedom of 

3 expression, freedom of association. It impacts 

4 that. And you know, the right to correspondence 

5 comes from that as well. So I mean it's defined 

6 in the treaty itself, and -- 

7 MS. BRAND: What is the definition? 

8 Humor me.

9 MS. PITTER: I mean --

10 MS. BRAND: I can look it up, 

11 never mind. But it sounds like what you're giving 

12 me is sort of your sense of what privacy entails, 

13 not a sort of legally defined or legally 

14 articulated definition. Chris?

15 MR. WOLF: So a privacy lawyer's answer 

16 goes back to Brandeis and Warren who said the 

17 right to privacy is the right to be left alone. 

18 But they recognized and I think it's been 

19 recognized ever since, that was 1890, that there 

20 are exceptions for the good of society, for law 

21 and order, for social good. 

22 And that's really where the rubber hits 
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1 the road. What are the permissible exceptions for 

2 national security surveillance? And you know, 

3 that's the discussion that needs to be had 

4 globally. 

5 You know, Judge Wald asked what should 

6 the U.S. government do? I think it should promote 

7 that discussion as a global matter, and at the 

8 same time I think it should promote the decoupling 

9 of national security surveillance from cross10 border data flows for commercial purposes. 

11 The threat to withdraw safe harbor, for 

12 example, the declaration that the transatlantic 

13 trade and investment partnership shouldn't address 

14 data because of what happened with national 

15 security surveillance is a non sequitur. 

16 Those issues need to be dealt with 

17 between governments, but that shouldn't interfere 

18 with cross-border data flows, which have to have 

19 privacy protections built-in, no question. But 

20 those are not something, that isn't something, the 

21 surveillance issue is not something that the 

22 companies themselves can really address and 
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1 they've done about as much as they can in pushing 

2 for transparency, pushing very hard.

3 MR. MEDINE: Dean, did you want to add 

4 something?

5 MR. GARFIELD: The question was asked 

6 earlier about what the appropriate venue is and I 

7 would say a reminder that the strategic and 

8 economic dialogue didn't exist beyond five years 

9 ago, and so this is one issue that's getting left 

10 behind in the discussion, the importance of 

11 creating a framework and a venue for greater 

12 multinational dialogue around the surveillance 

13 issue. And I think the PCLOB in its 

14 recommendations can have a dramatic effect in this 

15 area.

16 MR. SIEBER: It's clear that we have 

17 not an international definition because the 

18 countries are too different. However, in the 

19 countries and national law, and European law and 

20 in other legal bodies these definitions are 

21 emerging. And of course they have to develop. 

22 What is sure is that there is a core 
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1 area of privacy where we all would agree that 

2 privacy is infringed. For example, if you 

3 directly do intelligence gathering on the sexual 

4 life of somebody who is not a suspect, there's no 

5 reason, that's a clear core area infringement of 

6 privacy. 

7 Now if you go further, it's becoming of 

8 course a difficult, mass surveillance of people 

9 against which there is no suspicion would be one 

10 aspect where we'd have to investigate. 

11 Another one is to create a complete 

12 picture of the private life of somebody going back 

13 to his birth, whatever did he do, did he 

14 demonstrate in school? So collecting enormous 

15 mass of data on one person would be another 

16 aspect, just illustrating. There are cases which 

17 fall under something like that. 

18 And we should work on this definition 

19 and the fact that we do not have something like 

20 that would not lead me to the conclusion we 

21 shouldn't go in these things. 

22 It's the same with this attitude on 
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1 extraterritorial application and things like that. 

2 These questions are so new that you cannot find 

3 any government's position here. So for me, that's 

4 not a valid argument. If you are pioneers on 

5 these questions, we cannot say the governments are 

6 not yet there. 

7 I agree with you it's a political 

8 question on this issue. 

9 One final point where I do not agree 

10 what was said is the question with respect to 

11 territoriality. If you are collecting data in a 

12 foreign country from (inaudible) it's clear that's 

13 legal. You are not infringing the foreign 

14 territory. 

15 But if you go to a foreign territory 

16 and you switch on servers, you download countries 

17 -- the electronic pulses, you are changing and you 

18 do a function that usually the police does, this 

19 is a clear infringement of territoriality. 

20 And you can see this especially in the 

21 cyber crime convention where we are fighting about 

22 these questions. We have Article 32 B with a big 
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1 struggle between the U.S. and Russia, which is 

2 bringing down the complete process of the cyber 

3 crime convention. We all agree that except these 

4 cases mentioned in Article 32 of the cyber crime 

5 convention ratified by the U.S., any police 

6 activities doing access to foreign countries are 

7 of course infringements of privacy. Nobody would 

8 claim that this is legal. We could stop the 

9 process of the cyber crime convention if your 

10 statement would be, all right, like that in this 

11 generality. 

12 So I would say that we have to 

13 remain -- these surveillance activities do not in 

14 any case infringe territoriality but there are 

15 many cases, especially looking at the cyber crime 

16 convention, our agreements which we have on this 

17 committee, we all would say that's a clear 

18 infringement of the sovereign territoriality of a 

19 country. And it is also undisputed that the 

20 protection of territoriality is guaranteed, not 

21 only by Article 2 of the U.N. Charter, but also by 

22 customary law. It's one of the basic principles 
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1 since the Westphalia Peace Accord.

2 MR. MEDINE: Let's give John a chance 

3 to respond.

4 MR. BELLINGER: I'll be brief. On the 

5 second point, again I would say that I don't think 

6 any country in the world would say that the 

7 Article 2 of the U.N. Charter's protection of the 

8 territorial integrity and sovereignty of states 

9 would mean that they cannot conduct essentially 

10 espionage activities from anywhere. I just don't 

11 think that's what the U.N. Charter says. 

12 But more importantly, the first thing 

13 you said really goes to the heart of our 

14 discussion here, where you said this is an 

15 evolving national dialogue about privacy and it is 

16 a dialogue that is going on nationally in 

17 different countries, and it therefore is going on 

18 internationally. 

19 But the question at least that was put 

20 to several of us, to me and Laura in particular 

21 is, is there a binding international law standard 

22 right now? And the answer to that is clearly no. 
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1 Germany may have laws inside Germany, 

2 given its particular past. Other countries may 

3 have particular national laws. Sooner or later 

4 countries may get together and agree on things, 

5 but right now there is not an international legal 

6 standard, either in the ICCPR or anywhere else 

7 that limits electronic surveillance from the 

8 United States, or again, from any other country. 

9 Other countries would not agree that 

10 there's not an international legal standard -- or 

11 that there is an international legal standard.

12 MR. MEDINE: We have time for just a 

13 quick round that Jim had requested. Let me just 

14 ask just to clarify one point, John, the treaty 

15 ICCPR is not self-executing. What does that mean 

16 and is there any forum in which enforcement action 

17 could take place?

18 MR. BELLINGER: That means that it 

19 would require implementing legislation for it to 

20 be, so it's binding as a matter of international 

21 law and we have implemented it already and are in 

22 compliance with it in certain ways because of laws 
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1 that we already had on our books, or might thereby 

2 have our Congress pass. But it does not have 

3 automatic legal effect merely by the United States 

4 becoming party to it.

5 MR. MEDINE: And is there any forum in 

6 the world where we could be held accountable for 

7 compliance with the ICCPR? 

8 MR. BELLINGER: The U.N. Human Rights 

9 Committee monitors our compliance and comments 

10 upon things that we are doing. That's what 

11 happened last week when we presented our report. 

12 And the United States commented on or responded to 

13 these comments, but that's not judicially or 

14 legally enforceable.

15 MR. MEDINE: Thanks. Judge Wald.

16 MS. WALD: Just a quick comment. Am I 

17 not right, John, that not in this context of 

18 surveillance, but hasn't England at times relied 

19 in some of its judicial decisions on the ICCPR for 

20 the, to disallow, I think in dealing with some 

21 detainees or asylum people, etcetera? 

22 So my impression was there are courts 
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1 who have actually relied upon the ICCPR, not in 

2 the surveillance context but in other contexts.

3 MR. BELLINGER: You and I would have to 

4 look at those together. It may have been the 

5 European Convention on Human Rights. There has 

6 been a fair amount of jurisprudence recently on 

7 the extent to which the European Convention on 

8 Human Rights creates obligations on British and 

9 European forces who actually do have someone 

10 within their control of their military outside of 

11 Britain, or Germany, or elsewhere.

12 MS. WALD: Okay. I'll let you off. 

13 Very quickly I have one question, quickly, for 

14 Mr. Garfield, and that is that the statement that 

15 your organization provided to us spoke of the need 

16 for meaningful oversight by an independent body in 

17 government as to the surveillance programs, 

18 including access to collected data. 

19 Just wondered very quickly, who you had 

20 in mind, was it the IGs, us, FISA, Congress? Did 

21 you have particular independent bodies who would 

22 provide the meaningful insight, which included in 
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1 your statement oversight of collected, access to 

2 the collected data? 

3 MR. GARFIELD: We did not.

4 MS. WALD: Okay, that's a succinct 

5 answer.

6 MR. MEDINE: Gives you a concise 

7 answer.

8 MR. DEMPSEY: Rather than a question 

9 I'll just offer an invitation, which is if any of 

10 the witnesses could provide us with guidance on 

11 the question I posed, what would be a better way 

12 of structuring a foreign intelligence system. 

13 I think at the end of the day any 

14 concept of law, any set of rules is going to 

15 recognize that different countries are going to 

16 have somewhat different structures. So the German 

17 structure is robust but different from the United 

18 States. The United States believes it has a 

19 robust system with different elements than Germany 

20 has, etcetera. 

21 Has anybody put together or could 

22 anybody put together a list of the elements of a 
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1 system and then some sense of how you come up with 

2 what is the minimum? 

3 We talked a lot about judicial 

4 oversight but Germany does not have. The court 

5 reviews the statutory structure but not the 

6 individual implementation, does not do individual 

7 targeting on the strategic surveillance in 

8 Germany. In the U.K. it's all administerial, not 

9 judicial. 

10 Secondly, if any further thoughts on 

11 how we get from here to there. So several 

12 witnesses have said it's an evolving situation. 

13 We have new questions, questions which to my view 

14 are not answered in the existing documents. Let's 

15 just say that it's not answered. They don't 

16 apply. No one thought about this. It hasn't been 

17 answered. How do we move forward, we, the world, 

18 or maybe the U.S. and Europe, which have more 

19 shared values than we sometimes admit, how do we 

20 move forward in getting that kind of commitment? 

21 And the industry in Garfield's paper is 

22 that a global, I think implicitly recognizes we 
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1 need global understanding, even if not all of the 

2 laws are the same. 

3 So any thoughts that you can offer us. 

4 Not right now because we want to move along, but 

5 any further follow-up thoughts you could offer us 

6 in writing, please, it would be very helpful on 

7 both of those points.

8 MS. COLLINS COOK: I just wanted to 

9 thank you all for coming. As I said at the 

10 beginning I think it's important to have these 

11 discussions. I won't assign homework or request 

12 any follow-up, but it's an education process for 

13 us, as well as for the American people, 

14 particularly on these issues. 

15 So if there is information you think 

16 should be a part of the public record, which will 

17 remain open, I'm sure David will explain, it is 

18 welcomed.

19 MS. BRAND: I won't take up anymore of 

20 your time since we are at the end of our schedule 

21 here. But I want to thank all of you for coming. 

22 It was very helpful to me, so thank you for taking 
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1 the time to prepare and to be here.

2 MR. MEDINE: Thanks again to all the 

3 speakers and the Board staff that made this 

4 hearing possible. The Board's activities for 

5 today are now complete. 

6 The Board encourages all those who are 

7 interested to submit, panelists and members of the 

8 public, to submit written comments on this topic 

9 at our website of www.regulations.gov. And the 

10 deadline for submitting comments is March 28th. 

11 All comments submitted will be available for 

12 review by the public. A transcript of today's 

13 hearing will be posted on PCLOB.gov. 

14 And I will now move to adjourn the 

15 hearing. All in favor of adjourning the hearing 

16 please say aye.

17 (Aye)

18 MR. MEDINE: Upon receiving unanimous 

19 consent to adjourn, we will now adjourn. The time 

20 is 3:40. Thank you. 

21 (Whereupon, at 3:40 p.m., the hearing 

22 was adjourned.)
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1 CERTIFICATION

2

3

4 I, LYNNE LIVINGSTON, A Notary Public of 

5 the State of Maryland, Baltimore County, do hereby 

6 certify that the proceedings contained herein were 

7 recorded by me stenographically; that this 

8 transcript is a true record of the proceedings.

9 I further certify that I am not of 

10 counsel to any of the parties, nor in any way 

11 interested in the outcome of this action.

12 As witness my hand and notarial seal this 

13 ________ day of __________________________, 2013.

14 ________________________________

15 Lynne Livingston

16 Notary Public

17 My commission expires: December 10, 2014

18 

19 

20

21

22
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A

a.m 1:17 4:6

ABA 87:9

abide 224:16

242:11 267:19

ability 74:13

192:13 221:17

230:2 246:12

285:3 290:1

298:18

able 102:8

111:21 222:6

261:11 273:7

273:13

abouts 55:6 56:9

57:7 63:2

94:10 98:4,12

160:21 163:15

163:17 164:6

168:9,18

193:19

abroad 37:12

40:10,20 41:1

41:7,21 49:21

58:15 96:10

148:9 182:21

182:22 236:10

249:2 258:4,16

258:21 259:7

259:19 269:1

276:21 295:12

absence 123:19

156:19 262:15

absent 122:9

absolute 66:21

257:11 297:4

absolutely 37:9

67:2 76:18

205:1 248:15

248:16 258:17

abstracting

106:17

absurd 226:5

academic 262:5

290:14 291:2

academics 6:17

6:22

accept 150:14

174:12 224:14

235:3 245:22

297:9

accepted 87:5

216:18 290:3,7

290:9 295:16

295:19 296:18

297:7

accepting 166:7

235:20

access 76:22

77:10,12,14

83:17 86:5

105:19 119:7

152:9 174:21

176:13 188:1

189:21 190:1,2

190:20 191:22

192:6,10 238:9

238:20 239:3

241:20 275:20

277:12 304:6

308:18 309:1

accesses 231:7

accessing 190:7

190:11

accidental 96:16

96:19 97:1

Accord 305:1

account 41:10

42:6 43:1 51:5

51:12,17,20

52:2 53:5,6

54:15 55:20,22

56:4,7 60:16

73:21 95:17

101:2 217:16

218:1 272:11

272:16

accountable

292:2 307:6

accounts 52:12

55:5 221:19

228:2

accuracy 73:1

74:15

accurate 67:19

achieve 228:6

achievements

13:10

acknowledge

227:11 234:3

acknowledged

196:21

acknowledges

201:19

acknowledging

251:22

ACLU 113:13

155:14 156:12

205:1

ACLU's 120:22

acquire 7:22

38:2 39:3 68:6

122:2,5,18

123:20 133:10

134:15 147:3

152:1,2,3

162:3 189:21

196:2

acquired 28:2

32:12 37:4,5

38:21 52:13

79:21 106:5

123:17 134:9

164:22 165:16

165:22 166:4

193:2 196:11

196:13 197:14

197:17,22

199:15,19

201:18,20

229:13 281:18

acquires 38:5

152:4 197:19

acquiring

151:21

acquisition 9:20

17:7 38:8,12

38:15,16

104:17 133:5

133:10 139:17

158:14 165:2

188:8,14,18

189:3 190:15

191:21 192:7

192:11 193:1

196:19 223:6

act 1:8 2:11 3:3

5:11,12,16

7:18 29:10

84:17 175:9

235:8

acting 214:7

215:4 234:14

action 306:16

313:11

actions 235:19

activist 207:4

activities 11:8

11:18 84:13

127:2 131:19

179:4 210:15

217:16 239:17

240:3 241:14

278:16 280:8

282:13 285:8

304:6,13

305:10 312:4

activity 19:5

38:10 86:10

105:3,19

115:15,21

118:7 142:3

149:11 156:2

198:14

actors 67:22

acts 231:9,18

235:14 285:4

actual 48:17

118:6 147:17

172:9 201:10

215:22 248:4

285:4

actuality 126:18

add 13:18 21:16

30:8 31:14

34:13 42:9

43:6 49:12

65:19 77:18

96:4 99:20

103:17 139:13

179:16 181:7

185:18 190:22

195:14 201:17

206:17 208:11

250:14 301:3

added 68:19

212:20 213:10

adding 30:20

162:11

addition 22:3

23:3 85:9,14

136:9 213:1,5

213:6 231:19

232:7 270:4

271:9

additional 33:5

35:2 63:2 94:5

136:2 185:18

207:11 228:11

239:10 273:4

278:13

address 13:18

15:2 17:2,6,7

18:8 19:16

30:6 51:8

54:18,20 67:12

79:5 83:13

92:18 112:4

116:1 120:6,7
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136:19 179:2

197:11 221:1,2

300:13,22

addressed 116:3

146:14 231:1

269:5

addresses 9:5

10:8 25:12

52:7,10 71:6

88:16 120:2

addressing

239:1,21

adherence 85:14

282:7

adjourn 312:14

312:19,19

adjourned

312:22

adjourning

312:15

adjudicated

226:14

adjustable

47:11

administerial

310:8

administration

159:12,12

211:21 214:16

223:22 230:7

253:22 291:7

administratio...

214:3

administrations

214:2 229:17

administrative

157:4,5

admit 310:19

admittedly

137:12

adopted 213:6

276:11

advance 59:19

218:9

adversarial

204:12 206:2

adversaries

286:8

adversary

204:15

advice 88:7,18

269:2

advisor 210:9

210:10,12

212:3 214:7

234:7

advocate 159:13

205:7 222:7,8

237:2,5 277:20

277:22

advocates 6:17

6:22 210:17

affairs 117:17

127:1,10 279:9

285:12,17,22

286:5 287:13

287:17 288:4

288:19

affect 285:17

affirm 223:5

affirmative

42:11 74:10

114:16

affords 243:4

Afghanistan

236:15

afraid 36:19

afternoon 209:6

age 198:16

236:7

agencies 6:13

19:9 22:9 36:3

36:6 49:6 67:7

78:21 79:3

80:18 105:1

106:12 107:4,5

108:21 118:4

136:6 240:18

242:11 256:14

256:19 257:1

257:15 267:15

268:8

agency 2:16

18:3,16 107:14

107:15,16,18

109:6 110:2

122:8,13

240:14 257:21

agent 29:7 116:7

141:13,21

149:4,10

150:21 173:22

204:1 207:17

208:7

agents 67:21

126:3 149:5

234:14

aggressive

131:13

aggrieved

165:18,19,21

166:3

ago 86:14

145:17 214:5

301:9

agree 42:21

64:11 68:17

69:8 90:11

131:21 138:8

138:16 153:22

164:8 169:21

197:12 202:17

206:17 213:17

221:9 245:20

245:21 258:17

263:22 277:3

289:6,10

290:22 291:9

302:1 303:7,9

304:3 306:4,9

agreed 5:8

127:13 216:18

232:8 265:13

267:19 296:21

297:1,14,15

agreeing 5:2

agreement

272:18,20

273:2

agreements

111:19 304:16

ahead 125:11

149:20,20

250:16

aim 228:1,5,6

aimed 60:13

220:3 291:14

aiming 225:3

Al 120:6

albeit 243:20

alien 8:3

aliens 233:3

allegedly 238:16

allied 252:4

allies 282:5

allocated 64:20

allow 40:13,14

40:15,16 122:8

124:3 151:10

205:8,10 225:8

240:21

allowed 30:14

30:19 167:8

200:22 205:2

208:19 240:15

241:3

allowing 13:4

26:16 124:16

180:6

allows 187:18

187:22 285:22

287:7 288:7

allude 98:19

alluding 105:17

252:13

alongside 183:1

alphabetically

209:22

alternatives

228:18

ambiguities

37:8

ambiguity 161:9

ambit 59:9

271:3

ameliorate

272:5

Amendment

10:16 13:1

14:9,12 15:2,7

15:9,13,14,18

16:2,9 17:4

18:1 20:7,10

20:11,12 21:5

21:7,9,11,13

22:5,11,13,19

27:13,19 28:8

28:15 39:4,6

39:15 43:4

74:22 75:19,21

80:13 94:22

116:10 118:1

119:16,22

120:10,16

121:2 129:2,7

129:15 131:5,6

131:20 137:4

137:19,21

138:9,17,18

142:17 144:16

144:19 146:18

148:4 152:20

153:1,4,6,9,11

153:16,17

154:10,13,15

154:19 155:9

156:4,14,21

157:14,18,21

158:1,4,15

160:5 172:21
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175:22 180:19

182:9,11 183:2

183:3,4,6,8,19

184:12 185:1,8

185:21 186:5

186:12 190:4

191:18 192:1,4

192:8,17 193:7

200:4 205:3,5

Amendment's

126:5 129:17

130:10

Amendments

5:12,16 119:18

American 3:6

181:13,15

235:6 256:3

311:13

Americans

121:4,6 123:18

124:2 131:22

151:21 152:9

159:2,8 170:17

180:21 293:5,6

amount 36:5,10

68:5 113:2

208:19 260:20

286:1 308:6

analogize 195:3

analogizing

14:16

analyses 219:13

analysis 15:9

20:10,11 21:11

22:5,11,14,19

23:4,8 46:15

75:20,22 77:8

101:17 114:22

120:14 143:17

145:6,7,9

146:19 153:1

154:1 174:15

176:22 185:2

190:5 193:7

194:7 201:14

216:3 235:11

281:2

analyst 41:10,11

45:8 59:14

79:14,15 294:2

analysts 41:19

42:11 46:9,10

47:1 62:5

74:11 87:14

88:17 111:21

294:12

analyze 80:19

142:2 154:8

184:5 194:10

226:19

analyzed 275:7

angrily 140:19

annex 84:18

anniversary

219:20

announced 4:9

annual 8:22

22:7,12,17,20

62:13,15

293:21

annually 22:4

22:21 43:2

59:11 112:10

answer 37:20

42:3 70:2

135:12 154:4,5

155:4 164:15

169:17 201:8

206:17 228:7

264:12 299:15

305:22 309:5,7

answered 36:9

135:16 161:14

310:14,15,17

answering

82:22 169:14

answers 16:15

92:13 135:17

136:16 161:13

ante 42:16 59:19

82:11

anybody 40:14

83:6 171:2

196:10 201:7

234:13 244:18

309:21,22

anymore 195:13

311:19

anyway 62:10

105:20 200:16

AOL 191:8

apartment

138:1

apologize 98:5,9

125:11 147:9

152:17

apparent 32:2

apparently 80:2

appear 8:11

120:21 125:8

134:9

appears 135:5

applaud 132:7

Apple 191:8

applicability

137:4 234:4,10

234:16 235:21

243:8 258:4

260:11 261:10

261:17

applicable

16:17 234:12

259:13

application

206:5,5,6

268:18,22

280:11,21

291:9 293:14

295:10 303:1

applications

21:20

applied 82:15

183:21 259:22

269:10 286:21

296:16 297:15

applies 111:3

129:18 151:13

184:4 185:10

186:12,14

214:10 224:5

225:17 227:16

289:18

apply 18:21

26:21 50:21

81:13 87:3

109:17 121:10

129:7 154:11

165:18 176:13

183:19,22

184:2,7 211:17

212:13 213:2

214:4,17 217:2

224:3 225:15

225:21 233:14

244:7,13

245:11 247:6

258:21 259:14

260:2 265:5

278:15 296:4

297:10 310:16

applying 236:18

237:14 258:5

259:11 279:21

appointed

204:15 257:18

appreciate 20:3

27:8 36:10

46:16 113:3

191:15

approach 19:18

22:1 65:12

153:1,3 158:5

230:22 279:21

appropriate

48:3 86:7 97:3

97:18 217:22

243:4 301:6

appropriately

81:10 171:14

approval 7:20

14:21,21 20:11

28:17 29:6

156:16 171:12

240:5,12

approvals 29:16

approve 9:9

49:3 241:4

295:2

approved 43:3

48:1 53:11

98:13 112:9,13

150:22 151:5

approves 8:22

12:22 59:10

approving

173:6

approximate

253:17

arbitrary 211:4

216:9,12,15,21

243:4 296:16

297:1,22 298:3

298:14

arcane 52:5

area 71:9 77:22

114:21 116:12

117:6 118:16

119:15 120:9

256:18 259:2

301:15 302:1,5

areas 69:14

114:1,4 120:13

172:2 218:17

arguably 150:4

argue 148:3

195:9 216:11

296:10,19

argued 206:12

210:18 225:16

227:8 246:17
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argues 235:6

arguing 202:10

224:1

argument

102:16 145:16

161:1,18 163:9

164:5 176:1

210:21 211:7

235:4 238:16

244:21 297:21

303:4

arguments

124:20 193:20

193:21 235:20

arises 37:16

157:14

arising 282:20

armed 262:21

Arnold 3:15

209:11

arose 118:10

arrangements

242:1 283:11

arrest 256:15

Article 142:14

144:6 194:1,4

210:21 211:3,8

212:6 216:8

217:1 231:3,21

233:20 246:12

249:4 261:17

267:7 289:22

303:22 304:4

304:21 305:7

articulable

48:19

articulate 63:13

95:12 112:7

articulated 27:3

30:13,16 40:11

109:2,7 299:14

articulating

22:3 82:6

aside 73:19

266:22 295:12

asked 81:12

223:15 300:5

301:5

asking 58:4

111:16 146:6

154:4 168:16

169:4 174:20

230:16 240:19

asks 109:14

aspect 62:18

116:3 138:17

143:16,16

149:13 221:5

258:3 302:10

302:16

aspects 119:6

164:18 237:22

249:16 255:22

aspirational

266:22

Assembly 236:6

asserts 175:19

assess 63:13,18

64:6,8 81:2,13

83:1 194:2

assessing 63:19

assessment 46:7

83:11 126:11

164:12 187:8

242:8

assessments

62:14

assets 240:16

assign 311:11

assist 70:21

assistance 25:15

26:2 69:21

238:21

Assistant 2:19

35:17

associated 68:4

120:2,8 123:17

142:16

association

299:3

associations

125:4 153:15

174:19

assume 76:10

77:1 105:19

199:7,7 282:21

assuming

195:19 253:14

assumption

114:13 177:22

195:9

assurances

280:18

asylum 307:21

atrocities 225:6

attach 192:1,8

attached 192:4

256:7

attack 285:4

286:9

attempt 126:15

236:3

attempted 64:19

attempting

262:11

attention 72:10

117:12

attitude 258:5

302:22

attorney 2:19

7:21 9:1 35:17

85:20 86:12,15

86:18 87:1,5

88:9,20 106:14

118:14 140:15

141:1 151:1

155:14 161:21

attorneys

118:19

audience 35:11

35:12

audits 62:6

augment 122:1

August 277:8

Australia 239:7

240:10,20

authoritative

250:18 268:10

authorities

158:3 233:7

276:9,15

283:10,12

authority 11:1

121:21 122:2,5

122:18 123:20

127:14 130:16

159:16 169:11

171:5 172:3

176:8 182:21

183:13 194:4

194:18 195:16

195:19 202:14

228:10 258:10

281:15 292:3

293:13

authorization

84:17 127:18

194:3 198:2

242:13

authorize

123:14 161:22

183:17 206:10

238:9

authorized

102:3,11

140:16 177:10

authorizes

121:11 164:11

authorizing

194:15

automatic 307:3

availability

238:21

available 9:21

20:5 26:17

32:2 41:11

47:3 93:12

112:3 198:17

242:1 312:11

Avenue 1:16 4:8

average 253:7

avoid 151:21

Awang 5:6

aware 11:1

96:13 215:12

215:21 246:4

250:3 264:13

265:2 289:19

awareness 69:18

221:12,14

aye 4:18,19

312:16,17

B

B 303:22

back 25:2 29:18

30:1,4 44:8

50:14 60:17

71:11 74:18

80:22 92:22

93:5 100:16

112:6 123:15

147:9 153:22

171:16 173:3

175:16 176:16

178:15 180:9

182:3 204:1

207:2,17,19,21

208:9 233:11

260:7 266:2

293:8 299:16

302:12

back-end 152:8

173:12 174:7

174:12 175:17

backbone 26:7

248:14

background

125:21 126:13

194:8
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

5

bad 55:3,8

60:16 73:10

156:2 167:1

207:2,2

badge 219:8

Baker 2:13

22:22 32:6

35:12 61:18

67:10 70:2

73:2 82:18

85:7 92:16

105:15 111:1

balance 84:8

93:1 105:14

balanced 256:19

balances 255:12

259:20

balancing

155:18 156:3

255:16

Balkanization

283:13

balkanize

282:12

ballroom 4:7

Baltimore 313:5

ban 130:21

bank 153:13

186:15

bans 216:8

bar 178:21

179:10 180:7

barred 226:6,8

barriers 34:20

119:3,4

bars 89:21

base 78:11

106:6 109:16

210:21

based 5:21 7:20

10:7 18:13,17

26:10,14 41:7

56:10 57:12

60:7 71:5

73:18 104:22

132:22 149:9

153:6 160:7

170:14 173:15

177:14 219:7

222:12 228:21

230:16 238:14

256:17 258:20

258:22 282:9

baseline 101:13

241:17

basic 30:11

101:10 109:1

233:13 256:11

258:9,9 304:22

basically 43:10

50:11 86:21

87:6 133:11

140:11 156:3

175:17 253:16

265:10 282:4

290:13

basis 37:5 61:13

74:12 76:10

78:17 84:1

100:12 107:16

219:9 277:12

277:13

Bates's 163:4

battle 233:11

bear 58:4

bears 74:8

becoming

139:10 219:9

264:19 302:7

307:4

beg 116:19

began 238:10

beginning

147:10 294:14

311:10

begun 63:15

behalf 8:11

218:6

belief 40:19

believe 10:9

14:10 17:17

23:8 51:9

60:15 73:10

80:16 111:10

125:1 129:1

131:4,10,19

133:1,20 141:2

147:1 150:20

154:10 173:8

175:6,8 214:9

221:1 246:5

249:8 250:10

250:12 294:11

believed 9:11

37:11 39:20

40:10,20 58:15

71:17 89:9,13

122:14 131:1

136:6 148:11

162:2

believes 215:13

250:3 264:14

265:2 289:20

291:10 309:18

Bellinger 3:15

209:10 210:1,2

223:20 224:6

244:10 247:8

248:21 249:19

250:1 251:2

252:20 253:2

253:21 264:7

264:11 267:18

288:12,21

296:2 305:4

306:18 307:8

308:3

belong 53:12

155:13

belongs 52:21

73:10 103:10

benefit 35:10,12

benefits 219:22

best 45:1 93:11

145:15 164:5

196:12 275:16

280:9

Beth 34:13

82:22

better 25:1 26:7

34:22 255:4,8

255:11,11

260:5 275:9,16

284:2 309:11

beyond 59:8

88:13 97:6

131:19 140:11

301:8

big 48:5 88:5

109:3 252:1

303:22

bigger 40:6

42:10 46:14

258:16 259:19

259:19

biggest 205:19

billions 219:15

bind 286:18

binding 213:19

213:22 215:20

217:6 218:2

250:5,12

251:13,15

266:19 267:3

267:15 268:7

268:12,14,17

289:13 290:14

295:21 298:4

305:21 306:20

binds 258:9

289:20

biometric

154:16

birth 302:13

bit 20:17 23:19

23:21 24:20

28:19 30:7

39:18 44:12

45:6 61:2 80:3

82:8 89:2 93:6

98:20 104:15

105:7 116:15

147:16 149:2

158:2,8 167:21

171:7,13 185:2

191:1 195:3

204:18 223:13

257:2 266:17

291:16 293:8

blank 67:1

blanket 60:12

blessing 131:15

blind 33:21

blocked 108:17

blow 168:4

BND 257:22

board 1:3 2:1

4:12,13 5:2 6:8

7:3,5 18:21

36:9 76:22

77:2,10 83:17

87:9 111:11

120:21 125:8

125:13 128:11

132:19 134:22

135:11 136:19

149:22 173:20

174:9 182:10

207:10 209:21

210:4 223:13

231:14 242:7

243:14 312:3,6

Board's 4:3 5:3

312:4

Bob 8:8 15:5

23:17 25:8

35:14 40:11

48:11 68:19

76:6 105:16

109:7
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

6

Bob's 101:19

bodies 278:6

301:20 308:21

bodily 172:17

body 64:5 180:6

180:12 221:6

226:13,15

241:4 267:13

267:22 268:5

308:16

bolster 222:20

bomb 140:1

bomber 34:18

book 284:21

books 19:16

240:1 269:9

307:1

bootstrapping

179:20 180:9

180:17 181:8

181:20 199:3

border 198:6,7

200:7,10 242:1

300:10

borders 211:17

224:5,20

229:20 246:13

248:13 283:8

bottom 216:22

229:18

bound 212:8

271:14,16,18

286:19 289:10

box-checking

203:1

Brad 2:19 22:3

27:2 32:10

35:16 39:2

72:6,22 80:8

146:14

Brad's 30:20

Bradford 5:4

branch 20:8

68:20,21 84:4

84:4 85:12

127:21 128:5

140:2,4 142:13

142:14 291:21

292:1,1,4,6

293:11,17

branch's 128:14

branches 11:5

132:5

brand 2:4 4:14

20:2 22:13

23:2,17 24:19

27:6 56:14,19

57:1,2,9,16,21

60:21 61:14

62:21 93:5,19

95:3,9 96:3

97:4,9 145:11

146:5 148:5

149:15,20

179:6 182:6,7

184:7 186:2,10

187:3 266:1,5

267:11,22

268:12,19

269:15 270:17

271:20 295:5,7

298:6,10,20

299:7,10

311:19

Brand's 153:22

Brandeis 299:16

Brazil 220:6,8

239:11

break 6:20

113:4 209:2

breaks 169:5

Brennan 3:10

113:16 140:20

Brian 5:5

brief 7:6 8:13

21:8 34:13

113:17 132:11

208:11 209:19

223:14 305:4

briefing 20:21

21:15

briefings 100:4

100:5

briefly 39:18

127:3 129:4

132:16 133:2

134:21 186:3

briefs 77:21

78:5

bring 79:22

142:4 229:9

283:16

bringing 304:2

brings 11:2

139:14

Britain 308:11

British 308:8

broad 14:20

122:4 125:22

127:22 150:17

151:7 172:4

186:8 194:12

202:2 253:6

255:18 279:6

281:20 285:8

285:18 288:7,7

broad-based

68:12 131:15

broader 62:2,19

97:12 124:12

130:7 138:20

151:8 159:16

166:11 219:17

230:22 249:9

278:19 282:7

289:17

broadly 15:1

68:15 122:16

158:20 208:3

brought 141:9

141:18

Brownell 140:3

Budapest 232:9

budget 64:21

build 51:3

170:12 220:18

292:9

building 54:12

built 80:10

114:13 124:14

built-in 300:19

bulk 10:6,6,12

23:18,19,22

24:2,6,17 48:8

71:6 157:7,9

157:11 158:8

158:10,11,14

158:14 189:12

190:11,14,18

197:6 200:1,3

229:12

bunch 24:11

burden 48:15

114:7,9 176:16

177:19

burdensome

30:4

bureau 2:13

30:10

Bush 159:12

214:1

business 230:5

272:3,22 275:5

284:9

bypassing 180:5

Byron 140:10

C

C 3:16

call 4:16 90:6

138:2 159:6

163:18 174:17

177:9 189:1,2

189:12 197:6,7

called 61:6

118:2 124:15

155:14 210:22

252:5 257:19

calling 103:10

103:15 220:12

calls 46:2 47:22

124:16 156:11

190:15,19,20

191:21

camp 225:9

Canada 239:7

240:10,21

candidate 75:6

candidates 75:8

candidly 215:16

capabilities

67:20

capable 124:15

150:11

capacity 279:17

279:18

capita 277:11,13

capture 201:1

card 153:13

care 85:15 168:5

168:12

careful 203:7

254:9,16

carefully 11:17

203:4 205:8,9

carrying 284:9

carve 33:7

case 23:12 29:12

39:14 48:3

55:2 60:6

64:17 74:3

77:8 79:16

115:11 116:6,8

137:22 139:22

140:10 141:9

141:14 144:16

147:8 149:10

155:19,21

157:4 196:12

197:21 198:4
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

7

198:21 204:19

225:2,18

226:15 227:5

234:1 237:19

249:8 262:22

263:14 269:5

278:18 290:6

294:7 304:14

cases 6:7 17:18

43:11 73:19,19

74:6 77:21

137:20 139:19

142:7 143:1

150:2,9,18,19

150:19 160:4,5

160:6 184:12

184:15 185:7

186:21,22

198:6,8,15

199:13,16

200:7,8,10,12

205:12,13,21

206:1 235:17

249:11 302:16

304:4,15

catch 227:8

categories 9:2

81:8

category 32:9

32:20 105:6

207:6 285:20

288:19

cause 116:5

118:6 124:7

141:11,20

150:20 155:19

156:9 157:19

160:8 172:10

172:16 173:1,8

173:16,17,19

174:3,5 180:8

193:6 227:22

caution 149:22

cede 100:15

290:22

celebrating

219:19

cell 73:10,13

Center 3:10

113:16

central 114:1

centralized

106:14 107:2

CEO 3:16

209:12

certain 66:19

85:11 95:19

102:7 104:2

106:7 134:5

177:17 195:13

216:4 233:8,13

236:19 237:14

238:12 239:15

245:20 257:12

306:22

certainly 44:14

83:9,14 102:7

112:6 118:12

126:19 135:6

135:14 137:6

186:18 190:13

192:2 196:16

197:18 203:16

216:11 217:9

246:2 247:8

250:1,9 251:9

254:22 264:18

284:16 287:4

290:7

certainty 200:1

certification

22:7,8,18

62:15 313:1

certifications

8:22 9:7 59:10

59:11 279:12

294:22

certify 313:6,9

chair 21:5

chair's 26:21

chairman 2:3

4:5,11 238:2,3

269:17

challenged

77:19

challenges 185:4

218:20 287:1,1

chance 35:9

45:9 132:12

142:20 160:15

182:17 266:1

284:5,22 305:2

change 23:6

157:16 158:2,9

205:14 213:7

230:9 245:7,10

251:16 279:3

changed 76:11

144:9,10

229:16 257:2

changes 79:19

139:11 157:12

201:5 230:8

changing

137:18 220:3

303:17

characterized

167:7

charge 92:22

charges 141:18

142:5

charities 153:15

Charter 231:4

264:20 265:1

265:15,16

290:16 304:21

305:11

Charter's

264:14 305:7

chats 191:9

chatting 171:21

cheapest 228:22

check 114:17

178:5,8,9

259:16

checked 259:8

checking 41:17

checks 62:8

255:12,15

Chicago 73:12

chief 127:10

140:14

choose 6:5

Chris 209:18

254:22 298:6

299:14

Christopher

3:22 274:1

CIA 18:4,15

78:22 119:7,9

119:10 140:1

circuit 130:4

circuits 15:22

circular 105:8

105:12

circumscribed

115:2

circumstance

23:9 88:19

178:17

circumstances

41:8 42:5

85:11 94:16

106:8,11

107:13 111:17

112:7 126:22

178:12 186:18

236:13 258:15

cited 255:1

277:10

citing 147:5

citizen 8:3 128:9

130:2 131:8

138:2 278:4

citizen's 125:4

citizens 126:9

129:7,12,13,19

183:22 184:2

215:18 230:3

230:20 232:19

233:5,6 236:22

259:2 277:20

278:4

civil 1:3 3:7 4:3

93:2 211:1

218:10 222:7,8

223:17 233:21

255:16 267:8

286:14

claim 165:21

304:8

claimed 127:21

128:6

claiming 121:20

145:1

claims 127:4

238:11 239:1

275:18

clandestine

285:7

clarified 185:7

clarify 30:14

78:20 183:10

202:10,11

306:14

clarifying 57:5

clarity 40:12

194:22

class 133:15

classic 137:21

144:16

classified 6:2,3

6:7 13:11

84:18 85:3

135:9

clause 100:12

152:11 224:7

224:12 248:9

270:12

clauses 69:3
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

8

clear 11:16 12:8

14:2 36:13

37:9 39:2

49:15 69:16

90:11 129:6

133:22 152:21

155:1 179:11

213:1,11

225:12 275:2

279:3 289:3

301:16 302:5

303:12,19

304:17

clearer 274:2

clearly 139:18

163:21 177:8

196:5 264:13

266:16 270:19

271:1 305:22

Cleveland 252:6

client 86:12,15

86:18,19 87:1

87:6 88:20

118:14

clients 87:7

Clinton 211:20

214:2

close 13:7

154:14 192:21

216:2 217:4

282:5

closed 206:13

closely 81:5

closer 206:4

229:11 261:2

cloud 238:12,14

239:2,4 275:19

clouds 220:13

237:7 238:17

242:4

co-approach

243:12

co-existent 91:3

code 71:9

colleague 30:9

215:10

colleagues 13:17

29:1 36:3 54:4

68:9 100:14

collect 8:18 16:3

16:10 26:16

29:13,21 38:2

39:3 51:10

53:5 59:2 60:4

80:18 147:22

148:11,16

159:17,17

167:9 180:20

189:21 196:2

242:2 246:13

254:14 256:16

294:18

collected 9:3

13:3,5 15:12

16:20 17:11

19:12,19 27:16

28:5 29:9,15

29:19 30:21,22

31:3 32:15,17

37:14 38:21

43:18 72:19

95:5 100:20

101:2 102:20

106:20 133:20

134:6 136:15

146:4,6 163:6

170:10 176:8

176:18 177:14

179:12,19,21

180:3,7,12

199:18 200:3

243:19,20

245:6 254:3,7

254:15 269:11

308:18 309:1,2

collecting 13:13

51:15,19 58:19

73:14 85:22

89:4 94:13

95:20 142:12

159:21 161:5

162:10,18

167:19 177:17

181:10 198:22

288:18 302:14

303:11

collection 7:14

10:6,6,7,12

11:2,4,8 12:5

12:10,14 13:9

14:1,13,20,22

15:3,5,17 16:7

16:18 17:4,22

21:3,12,18

23:18,20 24:3

24:7,7,9,17,17

25:4,5,7,16,20

25:22 26:4,5,6

26:6,12,14,15

26:18,20 27:2

27:14,22 29:3

29:4,5 30:13

30:15 31:17

32:22 33:22

36:22 37:1,9

37:22 38:8,12

38:15,16 40:17

42:16 47:8,12

47:13,16 48:8

48:9 49:14,20

53:6 54:11

55:6 56:5 57:5

57:6,7,11,19

57:20 58:17

59:5,7 60:12

63:3,6,8 64:12

64:14 65:1,4

65:15,18 66:14

66:15 67:18

68:13 70:14

71:4,7 77:18

81:4 82:3,7,13

86:14 88:8

93:6,8,9,16,21

93:22 94:3

95:16 96:6,8

97:1 98:11

100:18 101:8

101:18 102:2

102:10 103:19

109:2,7 132:21

133:4,21 134:3

134:17,19

145:18,20

146:1,10 148:4

148:8,19

150:11 157:7

157:11 158:14

159:6,8 160:10

161:4 162:22

163:7 170:8,17

170:22 177:11

178:1 186:13

186:14 187:6

188:4,8,12,15

188:16 189:2

189:13 190:18

196:19 197:6

199:8,10,11,12

200:2 208:15

208:16,20

227:2 228:17

229:10,12,14

236:14 245:8

248:14 262:11

262:12 274:9

274:15 282:12

286:1 287:13

collections

30:18 54:14

56:8 59:17

94:10 137:5,8

157:9

collects 38:4

Collins 2:7 4:14

27:7 28:13

35:5 63:1,5,9

67:5 97:11

98:3,15,18

100:13 111:13

116:14,22

152:13 155:3

155:10,12

156:6,17 157:1

157:15 189:18

191:14 192:5

192:12,19

193:16 207:12

207:15 260:14

261:8 264:6

288:12 291:12

292:19 293:7

294:4,15 311:8

collision 143:19

colloquial 38:4

combed 166:12

come 25:19 33:3

34:11 41:3

65:3 99:14

118:3 136:17

160:16 169:1

176:16 184:1

198:6 221:18

226:22 260:7

260:12,16

263:10 266:2

278:8 298:12

310:1

comes 32:14,16

72:9 181:5

227:11 280:19

299:5

comfort 94:21

272:21

coming 27:7

126:14 152:14

182:19 183:15

194:10 204:19

207:2 258:15

258:16 259:18
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

9

260:15 261:15

286:22 299:1

311:9,21

commencing

1:17

commend 242:7

comment 14:16

40:5 63:22

82:18 83:14

86:3 111:1

195:22 196:3,8

196:15 234:2

249:20 276:16

307:16

commented

87:9 307:12

comments 7:10

19:15 32:7

132:12,13

182:16,17

210:5 272:18

307:9,13 312:8

312:10,11

Commerce

277:9

commercial

300:10

commercializ...

219:20

commission

172:8 257:17

257:18,22

313:17

commission's

172:15

commissioners

276:21

commissions

34:16,19 35:4

commit 155:20

172:17,18

commitment

310:20

commitments

267:20

committed

76:14 136:8

155:20 231:19

235:16

committee

211:22 212:4

213:9,16 214:7

214:8,22 215:5

226:12 234:1

244:22 249:21

250:4,6,18,22

268:10 290:11

290:13 304:17

307:9

Committee's

213:19

committees

84:11 98:21

99:11,18 100:3

100:6,9

committing

155:20

common 257:12

commonly 10:5

29:10

communicate

298:19

communicating

92:9

communication

7:15 12:12

25:15 50:9

52:10 87:21,22

90:14 91:20

94:13 95:5,20

103:16 108:14

108:18 120:4

123:8,12

134:16 138:13

138:14 139:12

175:8 197:3,8

221:3 288:8

communicatio...

9:14 12:2,10

12:17,19 13:3

14:8 15:11

19:17 24:7,12

25:22 26:17

37:4 40:17

51:19 52:14

54:16 55:5,7

55:16 73:15

82:8 86:15,18

87:3 91:9 92:3

92:7 94:14

95:22 101:3

115:14,18

118:19,22

119:1 121:5,5

122:3,6,12,14

122:19,21

123:6,16,21

124:1,4 125:5

131:9 132:1

133:4,13,19

134:5,7 135:20

136:5 137:11

138:6 144:10

144:11 148:1,2

151:21 152:4,7

152:9 155:16

159:17,22

161:4 162:10

163:6 164:1,21

165:16,22

166:4 167:9

170:18 174:19

175:11 180:20

188:17 189:10

189:11,12

190:3 192:6,14

195:6 197:14

199:1 201:18

201:18 226:3

227:13 229:22

234:19 271:6

287:8 293:5

community

46:19 64:21

99:15 241:11

compact 265:11

companies

53:18 70:5

218:7 221:16

228:17 240:20

272:10 273:7

273:13 282:9

282:10 283:2

300:22

company 52:1

53:10,14,21

69:21 70:8,16

107:1 272:14

comparative

237:21

compare 257:14

compared 184:4

compatibility

241:13

competing

282:10,17

competition

241:15

competitiveness

283:1

complementary

66:3

complete 130:21

302:11 304:2

312:5

completely 12:8

64:10 69:8

129:14 172:4

195:5 291:3

complexity 34:2

compliance

11:12,19 23:10

62:7,12 72:13

73:7,16 94:21

152:10 212:1

250:7 251:12

306:22 307:7,9

complicated

97:14

complies 21:4

132:21

comply 21:6

53:19,22

290:17,19

comprehensive

62:7

compromise

131:12 132:4

compulsory

25:13 70:15

computer 12:19

147:18 197:15

226:9 231:8

294:2

computers

198:7,9

concede 277:18

concentrate

233:20

concentration

225:9

concept 167:11

236:4 309:14

concepts 102:1

189:16 196:6

218:12

concern 18:9

36:18 45:13

92:19 94:2

95:17 118:16

119:22 120:9

157:17 181:5

205:19 269:22

282:18 291:17

concerned 114:4

114:22 199:13

254:6

concerning

63:11

concerns 14:10
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

10

15:2 23:11

94:5 114:2

118:1,11

119:16 120:16

152:20 153:5,7

153:9,11,16,19

200:4 217:11

236:18 239:22

254:17 272:11

282:17

concise 309:6

conclude 128:17

130:20 131:10

166:1

concluded 16:5

53:11 55:9

60:3 127:12

concluding

151:12 166:2

conclusion

29:21 55:2

120:12 164:14

166:5 276:2

302:20

conclusions

235:3

conclusively

178:20

concrete 103:9

189:7

condemn 132:7

conditions

212:14

conduct 12:15

22:11 121:3

123:15 124:4

126:1,16 127:1

127:8,14 128:1

128:6,14

131:13 182:21

183:13 195:17

216:5 240:15

246:6 270:9

275:12 277:4

285:12 290:1

305:9

conducted 21:19

25:14 37:19

62:19 75:22

129:21 130:3

139:1 179:4

282:13

conducting 20:9

29:11 75:19

130:12,14

134:16 168:22

262:6 277:1

confers 229:20

confess 261:15

confidence

42:10 292:9

confine 113:22

confirm 6:9

114:12

confirmed 129:9

129:16 134:12

214:2

confirms 212:18

conflate 49:16

conflated

133:21

conflating

162:12

conflation

182:14

conflict 140:21

262:21 264:1

conflicting

264:4

conflicts 260:1

conform 109:21

confused 147:16

171:8,13 191:2

congratulate

260:15

Congress 5:9

11:14 12:9

62:13 68:22

69:6 72:16

83:22 85:10

98:16 100:7,11

131:14,18

164:15,19

166:16 177:8

180:1 185:19

293:18 294:9

307:2 308:20

congressional

84:10

connect 46:20

connected 299:2

Connecticut

1:16 4:8

connection

33:18 100:3

Conrad 212:3

212:11 213:9

consensus

220:21

consent 4:21

312:19

consequence

77:5 94:18

consider 27:18

92:10 144:15

171:2 255:22

considerably

48:22

consideration

252:11

considerations

232:5

considered

19:17 69:12

75:16 140:15

141:6 145:8

216:6 251:14

considering

127:11 241:22

263:5,7

consist 6:12,16

6:21

consistent 9:19

12:22 22:15

43:4 74:21

86:7 104:19

128:20 169:13

211:16 214:12

Consistently

34:19

conspiring

140:1

constitutes

216:12 269:19

constitution

10:16 126:1,20

127:7,11

169:13 183:15

198:21 258:4

constitutional

5:18 6:18 11:1

71:12 74:18

82:14 109:20

109:22 114:2

125:14 126:10

127:4,14 128:1

128:6 131:17

136:10 137:14

194:2,8 197:9

197:11 235:5

237:19 256:7

258:6,21 260:1

263:20

constitutional...

75:16 76:4

78:3 121:19

170:14,21

constitutionally

194:11 256:21

constrained

256:20 274:17

constraints

128:13,18,19

128:19,22

183:7

construction

118:2,13

consult 88:17

consulting 87:7

consumption

106:10

contain 122:15

134:8 136:7

contained 313:6

contemplate

165:14

contemplated

80:5 163:22

164:15 166:8

contemplates

165:20

contemplating

164:20 166:17

contend 242:4

content 48:12

49:18,20

115:17 118:20

133:12,13

141:22 147:21

148:2

contents 155:15

165:3

context 39:13

46:17 47:2

48:15,16 50:21

62:2,19 65:22

83:20 86:19

88:16,21,22

96:15 107:9

118:20 138:19

146:15 154:19

154:21 156:5

158:17 160:5

165:19 179:4

197:18,20,21

206:7 225:1,2

225:20 226:5

252:12,18

270:14 293:3

295:14 298:11
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

11

307:17 308:2

contexts 12:15

28:10 29:13

105:9,13 124:6

160:6 308:2

continue 20:6

50:6 110:14

195:11,18,18

224:2 252:2

continued 289:2

continues

118:16 184:18

214:9

continuing

131:13 220:10

232:11

contours 236:3

261:2,9

contracting

213:4

contradict 266:4

contrary 35:3

41:12 122:9

133:22 134:19

166:18 178:7

contrast 19:2

contributes

74:13,15

contributions

134:22

control 192:8

215:3,3,8

224:14 225:19

226:1 227:13

232:19 234:13

234:18,18,22

241:9 244:16

244:20 245:4

245:14 246:21

256:18 257:15

269:19,21

270:19 271:7

296:8,11,12

297:16 308:10

controlled 246:8

controlling 15:7

249:15 259:6

controls 239:17

241:20 255:12

255:16 275:22

controversial

175:10,11

controversially

232:14

controversy

36:18

convention

231:21 232:9

246:16,17

249:5 251:6,20

260:10 303:21

304:3,5,9,16

308:5,7

conventional

159:7

conventions

234:10

conversation

98:9 124:21

189:20 288:14

conversations

14:4 124:17

142:1 156:13

279:7

converse 247:14

convey 108:15

conviction 263:2

convincingly

234:9

Cook 2:7 4:14

27:7 28:13

35:5 63:1,5,9

67:5 97:11

98:3,15,18

100:13 111:13

116:14,22

152:12,13

155:3,10,12

156:6,17 157:1

157:15 189:17

189:18 191:14

192:5,12,19

193:16 207:12

207:15 260:6

260:14 261:8

264:6 288:12

291:12 292:19

293:7 294:4,15

311:8

Cook's 82:22

93:3

cooperation

132:4

copies 231:7

copying 174:17

core 301:22

302:5

corners 283:8

correct 37:6,7

39:11 41:13

42:3 44:20

46:12 56:2

63:7 70:1,11

71:3,10,10

75:4 101:14

204:7 274:20

correctly 79:18

101:1 179:17

261:20

correspondence

120:4 211:6

298:16 299:4

costs 34:7 68:4

Council 3:17

209:13 210:11

counsel 2:13,15

2:17 3:9 35:13

35:14,15 87:15

88:17 113:15

119:8 277:9

313:10

counselor

252:16

count 38:15

counterparts

240:10 242:10

counterterror...

5:10 59:12

68:14,16 69:12

69:15 83:18

countries 71:3

128:7 213:17

214:20 228:16

229:3 230:2

232:15 233:8

241:21 244:8

250:10 254:22

258:17 265:11

265:12 269:8

274:5 275:11

276:22 277:2

277:19 278:18

282:5,6,11

283:4 284:10

285:16 286:7

289:12,17

290:3,18

291:19 292:9

301:18,19

303:16 304:6

305:17 306:2,4

306:9 309:15

country 11:2

123:12 138:4

191:22 213:21

229:2 235:11

255:7,11

258:11,12

261:22,22

262:7,10,16

264:13,17,21

265:2,19

268:20 283:8

289:19 291:10

296:20 297:5

297:14 303:12

304:19 305:6

306:8

country's

124:16 265:20

275:8 276:17

277:20 284:1

286:11

country-specific

220:13

County 313:5

couple 10:2

27:11 30:8

32:7 33:3

63:17 86:13

88:5 207:9

244:11 249:10

274:7 284:20

284:21

course 74:15

81:18 132:11

132:19 134:12

134:16 136:15

180:1 258:13

283:10 301:21

302:8 304:7

court 7:16,19

8:21 9:8 11:13

11:14,17,20

12:22 14:18,21

15:8,15 16:12

18:14 20:9,13

20:17,18 21:3

21:9 22:4,15

22:18 23:12,12

28:17 29:6,16

29:18 30:1

43:3 44:22

45:4 48:1 49:2

49:7 55:9

74:19 75:13,15

75:17 76:3,15

83:8 94:8,17

94:20 98:13

112:14 115:16
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

12

116:2,16

127:11,16

129:9,22

139:21 140:2,4

141:4,6,10,16

142:6,8,9

151:5 167:6

171:12 173:4

186:9 204:19

205:4 206:5,12

207:8 222:9

226:17 233:22

235:5,6 240:5

240:12 246:15

249:11 256:7

257:19 259:6

259:18 260:1

263:20 274:12

294:9,22 310:4

court's 20:10

76:9

court-approved

86:8

courtroom

142:4

courts 15:14,21

17:21 85:10

118:2 121:14

126:7 127:21

129:16 130:4,9

132:1 138:21

139:18 150:3

150:10,12

154:13 184:1

186:18 199:13

234:3 236:12

307:22

covenant 211:1

213:2 214:10

223:16 224:7

224:11,17,18

233:21 248:1

250:19 267:8

271:11,12

286:13

covenant's

214:13

cover 165:5

covered 10:20

covers 118:9

create 33:11,21

118:5 183:3

217:5 220:7,14

233:16 247:14

302:11

created 139:4,9

creates 183:6

226:5 308:8

creating 32:9,20

174:18 301:11

creation 174:22

credibility 42:7

credible 244:21

credit 153:13

crime 17:16

19:6 29:12

32:2 108:1,2

109:4 136:7,13

148:16 155:21

172:18 232:7

303:21 304:3,4

304:9,15

crimes 257:6

criminal 3:21

12:15 19:5

29:8 77:19

86:20,21 88:11

88:13,16,19,22

115:10,15,21

115:21 117:22

118:7 141:18

142:3,4,15

144:4 145:3

146:10 148:7

148:20 149:5

149:11 174:4

176:9 181:2

198:14 201:13

205:16 209:17

210:13 297:19

criminality

149:12,13

criteria 49:8

78:9,12 81:20

107:6 109:11

275:10 278:9

criterias 106:13

critical 112:11

261:12

critically 221:4

criticizing

239:15

critics 126:16

276:15

cross 241:22

300:9

cross-border

238:22 300:18

crucial 206:20

207:5

cruelties 256:9

CT 83:20

current 74:14

currently 84:12

178:1

curtain 203:10

custody 28:9,12

30:3,6 271:2

296:14

customary

231:16 262:1

262:14 263:1

289:11 304:22

customer

228:18

customs 198:10

cut 269:15

cyber 53:13

60:19 108:10

108:10 223:2

232:7 303:21

304:2,4,9,15

cycle 46:2

cynical 278:12

D

D.C 1:17 4:8

dangerous

170:12

dangers 259:18

259:19

data 31:9 34:10

37:17,20 38:14

45:2 47:7 58:9

70:19 79:21

95:18 115:11

117:7,20

120:15 172:11

172:22 189:3,4

189:5 196:11

196:13 198:16

220:7 223:6

228:17,18,21

229:2,5,10,11

229:13,19

230:3,3 231:8

231:9 233:8

235:10 236:14

238:9,13,20

240:20 241:1,5

241:20 248:12

269:11 273:8

276:14 283:7

283:13 300:10

300:14,18

302:15 303:11

308:18 309:2

databank 47:22

database 37:4

38:5 39:10

48:4,22 175:1

199:21 200:2

201:2

databases 62:6

86:5 114:17

119:7 123:22

178:9,9 192:3

201:14

datas 257:12

dating 233:11

David 2:3 4:5

311:17

David's 58:1

97:12

day 42:18 62:8

260:21 261:6

309:13 313:13

days 36:1 59:22

61:20 181:12

214:5

De 2:15 22:2,15

23:5 25:2 30:8

35:13 37:7

38:11 39:5,11

40:6 44:8,14

44:20 45:18,21

46:7,12 49:12

54:5 56:3,22

57:3,11,17

58:20 62:1

63:4,7 65:19

68:17 70:12,20

71:4,10 72:6

74:8 76:20

78:18 79:2,14

82:2 83:13

87:8 88:13

90:7,18 93:11

94:7 95:7,11

97:5 98:1,14

98:17 99:20

103:17 106:16

108:1 109:1,18

110:5,10,14,21

112:2 178:11

de-task 73:13

de-tasked 73:3

deadline 312:10

deal 222:4 235:4

dealing 235:18
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

13

259:10 307:20

dealings 272:4

deals 49:17,18

49:22 252:8

dealt 249:3

300:16

Dean 3:16

209:11 301:3

debate 70:4

77:13 224:4

252:1 273:18

276:18

debated 220:6

decade 34:14,15

deceiving 283:6

December 236:6

313:17

decide 107:6

110:2 111:21

275:16

decided 74:4

decides 78:11

decision 44:5

45:7 78:9,15

110:13 129:10

140:11 259:6

259:17

decisions 61:21

62:17 77:22

79:1 217:13

226:20 290:12

290:20 294:12

294:16 307:19

decisive 235:2

declaration

300:12

declassification

75:6,8,12

declassified

5:22 11:16

76:16 93:13

134:14

declassifying

292:13

decoupling

300:8

dedicated 36:11

dedication 36:6

deepening

235:15

deeper 236:1

deeply 36:4

99:16

default 46:3

47:5,6,8 96:2

202:10

defendants

77:19

defending 167:5

defends 158:22

Defense 188:11

defenses 159:1

defer 72:6

deference 249:6

deficiencies

241:19

define 143:9

236:3

defined 117:13

117:15 122:16

161:12 215:1

299:5,13

defines 212:7

216:19

definitely 37:7

68:17 97:22

156:9 258:22

279:20

definition 24:5

82:3,12 87:5

96:7,11,12

104:14 105:8

165:1,10,17

173:21 196:1

279:5 282:7

285:1 286:5

289:9,17

295:16,19,20

295:22 296:22

297:1,7 298:3

298:11,12,21

299:7,14

301:17 302:18

definitions

50:15 173:22

296:18 297:2

301:20

definitive

250:11

degree 80:9

185:1 194:14

242:13 261:1,4

261:9 269:8

degrees 6:13

delay 33:4,9

delegation

212:21

delete 104:9,11

deleted 101:8,13

108:16

delve 23:19

delving 36:4

democracies

240:3 255:2

democracy

175:12

democratic

125:1 221:8

237:6

democratically

292:2

demonstrate

302:14

Dempsey 2:6

4:14 35:20

38:1,22 39:8

39:14,18 69:16

70:4,18 71:1,8

71:11 74:17

75:5,9,15

77:14 100:16

101:15 102:5

102:15,21

103:3 104:4

105:7 160:18

162:16 163:13

164:4,17 165:4

165:9 195:21

195:22 197:10

197:13 199:5

199:17 200:6

200:11 254:19

254:20 255:10

255:20 260:7

283:18,22

284:19 286:4

286:15 287:12

287:19 288:5,9

309:8

Dempsey's

176:22

denied 205:4

deny 226:12

Department

2:20 11:9

35:18 42:19

59:20 61:13

62:9 167:7

210:9,13 234:7

252:17 272:19

273:3 277:10

Department's

188:11

depend 64:15

190:7

depending

105:2,5 143:9

depends 66:7

deprived 233:6

deprives 232:19

Deputy 2:19 3:6

35:16 113:12

derivative

109:20

derived 65:14

describe 153:3

described 30:15

describing

158:18

description

108:21 187:13

designations

200:21

designed 13:2

16:22 17:10

60:11 104:16

desirability/n...

204:12

desire 191:15

desk 294:3

despite 216:22

252:2 257:12

282:6

destroy 122:11

152:4

destroyed

201:21

destruction

59:13 201:17

201:22 285:7

detached 141:3

detail 11:7

25:10 87:11

120:13 159:5

241:16 272:21

273:6

detailed 95:15

281:2

details 112:5

130:8 237:21

292:21

detained 270:18

270:20

detainees

307:21

detention

225:20 270:14

270:17

determination

14:19 40:8
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

14

41:4,5,15

42:11,13,18,21

45:22 47:1

48:19 58:22

59:15 61:12,22

71:16 73:17

74:7,9,12,14

74:16 156:9

163:1,10,17

192:22 193:6

242:15

determinations

42:15 43:8,13

52:18

determine 42:20

46:17 64:20

74:20 76:15

88:1 102:13

140:6 178:20

267:1 288:17

determined 44:9

44:15 65:6

74:19 75:1

162:17

develop 301:21

developed

222:21 236:11

developing 68:2

222:9

device 189:9

dialogue 27:9

301:8,12

305:15,16

Diane 5:5

difference 48:5

48:7 101:21

182:2 192:10

279:15

differences 19:8

238:8 256:2,11

258:13 280:13

280:14

different 15:22

18:16,17 19:3

25:3 26:20

27:2,3,4 30:16

30:18 34:9

38:18 50:8

55:6,18 57:20

58:3 66:8,9,10

68:8 73:6

86:12 102:1

103:22 104:7

104:12,21

105:2,4,8,9,12

105:13 106:12

106:13 107:5

125:10 132:4,5

138:14 139:16

144:13,15

146:5 154:8

160:6,10

162:13 176:4

180:10,15

182:5 188:6

192:20 199:12

224:1 230:16

233:7 236:10

236:13,13

258:14,18

259:1 263:10

277:18 280:18

301:18 305:17

309:15,16,17

309:19

differentiation

257:7

differentiations

236:16

differently

20:17 34:4

175:9 268:3

difficult 30:4

46:16 125:1

302:8

difficulty

137:17

dig 99:15 178:15

digital 236:7

dignity 217:17

259:2

diligence 114:16

diminishing

219:6,7 225:5

Diplomatic

231:22

direct 79:19

105:22 117:12

directed 49:20

80:21 110:16

168:11,14

295:8

directing 66:18

direction 256:10

directions 66:19

84:20

directive 24:5

47:20 50:18

54:8 79:18

217:15 229:9

237:13 252:14

directives 7:20

26:3 53:16,17

directly 35:3

97:19 302:3

Director 2:18

3:6,20 7:21 9:1

11:10 35:15

42:20 59:21

64:18 85:20,21

113:13 161:22

209:15

Disabilities

251:7,20

disaggregation

273:8

disagree 76:18

127:5 223:19

disagreed

223:21

disagreement

245:17

disallow 307:20

disclose 111:7,7

241:1

disclosed 111:10

269:7

disclosure 84:9

197:21

disclosures

218:18 219:1

238:11 272:14

discourse

157:13,17

discover 71:18

71:22,22 101:5

101:6

discovery 66:13

discriminant

24:8 274:9

discriminators

147:20

discuss 95:16

121:12 166:18

166:19,21

200:19

discussed 58:5

94:11

discussing 6:8

37:13,18 38:19

54:17 55:21

57:6 113:2

155:15 190:17

discussion 5:18

5:21 6:1,4 14:1

20:7 36:18

50:7,12 58:9

58:21 113:21

209:2 235:6

236:1,8 237:3

237:22 243:17

260:18 266:9

284:12 300:3,7

301:10 305:14

discussions

55:21 166:13

273:17 311:11

disinclination

33:13

disinterested

140:5 141:3

155:22

disparate 46:21

disposal 31:11

dispute 127:6,22

158:12 232:15

disseminate

17:13 31:21

80:19 104:1,10

107:19

disseminated

81:10 106:6

110:7

disseminating

110:11

dissemination

9:22 17:8 81:5

103:20 104:17

111:17 117:7

117:21 120:15

174:14 229:10

distances 260:17

distinction

14:17 38:7

50:1 94:1

137:14 139:3

145:18 146:9

148:6 158:7

187:16 188:7,9

188:13 196:18

196:18 219:3

266:16

distinctions

196:2

distinguish 73:6

266:10

distinguishing

281:17

District 139:21

142:9
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

15

diverse 264:3

diverts 189:9

division 2:20

35:18 139:10

210:13

DNI 62:10 85:20

99:16 110:16

doctrine 179:7

200:10

document 59:17

59:19 61:5

62:5 76:2

267:14

documentation

42:17 60:22

documented

42:16 59:18

documenting

61:8

documents 6:2,5

6:10 11:15

75:11,14 119:2

119:10 147:17

178:8 188:2,9

292:14 310:14

doing 28:17

86:9 89:22

96:21 150:13

162:9,10 175:8

181:21 204:11

215:19 226:9

257:19 262:8

263:16 267:2

275:5 282:19

284:15 285:17

286:9,16,18

291:19 292:8

292:14 297:5

304:6 307:10

DOJ 43:7

dollars 219:15

domain 93:7

227:1

domestic 9:13

40:17 42:1

94:14 95:5,20

95:22 122:5,11

134:16 136:4

139:20 142:6

163:8 184:5,8

184:18 185:9

185:11 265:8

269:9

domestically

114:15 138:22

139:6 184:14

271:14

Donohue 3:4

113:10,19

116:19 117:3

120:19 139:13

145:13 146:2

146:13 149:1

152:16,17

153:21 155:7

155:11,17

156:2,15,22

157:3 160:17

168:10 171:7

176:5,15

177:16 190:22

193:14 198:5

200:7,9 201:9

204:22 205:13

door 123:15

dots 46:20

Douglas 140:20

download

303:16

draft 213:2

276:12

drafters 225:3

dragnets 253:6

dramatic 301:14

draw 169:12

187:15 188:9

261:13 275:11

288:16

drawer 226:8

drawing 188:7

drawn 207:6

draws 188:13

191:7

drive 170:21

drug 29:12

dual 212:12

due 114:16

240:1 251:12

duty 114:16

226:4 248:1,3

248:6,17

dynamic 218:7

E

earlier 26:22

55:19 58:20

61:20 74:5

80:8 85:5

93:20 96:7

147:16 186:6

187:4 191:2

195:4 196:17

220:19 243:17

249:1 271:22

272:8 274:15

279:11 296:11

301:6

early 45:7 46:1

70:4

easier 182:3

easily 207:3

East 263:17

echo 170:4

economic

117:17 218:22

219:12,17

240:16 241:14

282:8 301:8

education 58:1

311:12

effect 83:11

192:15 213:20

250:21 301:14

307:3

effective 67:8,10

67:14 68:18

69:9 85:17

215:3,3,8

224:13 225:22

233:16 234:13

241:9 271:7

effectively 64:20

221:2 225:5

effectiveness

66:5 68:22

69:7

effectual 230:19

effectuate 57:20

59:16

effectuated 54:9

109:5

efficacy 63:13

63:18,19 64:2

64:6,8 83:2,3

92:22

efficient 228:22

efficiently 31:5

efforts 5:6 11:21

213:7 218:9,15

237:10

either 10:4 14:4

33:13 64:5

66:18 91:16

107:20 114:11

117:13 149:9

154:3 158:2

173:5 189:9

245:10 254:8

262:10 266:13

306:6

elaborate 23:2

23:21 94:4

95:14 127:3

170:5

Eleanor 212:21

247:12

electronic 7:15

25:15 126:1

133:14,16

137:11 140:16

165:1,4,6,9,11

171:17 188:13

188:18 210:6

244:19 246:6

246:10,18

264:16 265:7

289:21 290:1

291:11 296:14

303:17 306:7

element 32:4

79:8 95:1

103:21 149:12

155:18 179:20

204:13 221:21

245:11

elements 309:19

309:22

eleven 113:5

eliminate 34:20

eliminating

203:17

Elisebeth 4:14

Elizabeth 2:7

email 9:5 10:8

14:5 25:12

50:13 51:4

52:6,10 54:8

54:14,18,20

71:6 73:21

167:20 174:17

191:9

emailing 56:19

emails 26:2,10

26:11 120:4

190:15

embassies

231:20

embedded 104:5

emergency 33:7

emerging
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

16

301:21

emphasis

220:22 237:10

emphasize

69:10 105:16

121:18 144:18

151:12

emphasized

183:20

emphasizing

13:8 143:14

employed 129:3

employee 111:7

empowering

84:10 225:4

en 227:5

enables 8:17

enabling 222:10

enact 228:16

271:14

enacted 15:20

enactment

127:20 128:4

130:18 194:13

194:18 195:20

encompasses

87:19 279:7

encounter 87:16

encountering

59:12

encourage 64:8

encouraged

46:20

encourages

312:6

encroach 126:22

202:11,12,13

encrypted

118:21 119:1

135:20,21

encryption

222:18,20

endorse 123:8

280:10,11

endpoint 124:19

ends 82:8

enforceable

307:14

enforcement

13:6 19:7

118:5 136:5

143:19 144:20

156:1 203:18

277:13 306:16

engage 127:19

175:10 196:22

197:1 262:12

264:10

engaged 16:6

115:14 156:2

158:11,14

194:12 196:21

engagement

113:12 221:3

284:13

engaging 233:12

242:7 262:10

England 307:18

enjoy 15:7

enlightening

209:1

Enlightenment

233:11

enormous

270:10 302:14

ensure 9:10,18

16:22 24:8

44:22 61:2

212:8 224:9

243:14 248:1

254:1,3 271:10

271:16

ensuring 58:18

entails 106:11

299:12

entire 71:3,9

98:8 105:6

110:10 165:13

entirely 159:9

167:11 197:12

entities 240:22

envision 176:3

envisioning

207:21

equal 253:18

equality 231:5

264:16,22

equally 186:12

equates 43:10

equivalent

205:15

eroded 222:13

erroneous 43:12

73:17 178:2,4

erroneously

74:7

error 43:9

especially

119:19 126:3

129:20 163:4

170:15 233:7

236:20 259:3

269:5 303:20

304:15

espionage

231:18,19

241:14 262:19

263:3,16

305:10

espouse 278:19

essential 245:10

essentially 24:6

43:10 61:6

91:7 104:15

108:20 118:9

130:15 144:11

145:5 198:2

224:16 229:7

269:20 297:20

305:9

establish 40:18

42:2 177:20

179:9,10

established

116:5 141:11

141:20 200:1

establishes

212:13

estimate 93:14

estimating

65:17

estimations

263:4

etcetera 109:16

120:4 161:5

171:6,6 173:7

179:7 196:2

307:21 309:20

EU 238:12,13

239:15 241:8,9

241:14,15

275:21

Europe 220:9

220:12 275:19

276:15 310:18

European

226:17 239:14

241:6 246:9,15

246:16 276:10

276:13 301:19

308:5,7,9

evaluate 64:2,12

64:14 66:4

84:14 186:22

205:10

evaluated 22:22

65:22 94:17

evaluating

110:22 243:3

evaluation

63:12 69:7

72:11 83:16,19

84:6 94:18

event 5:7 141:8

eventually

294:13

everybody

35:22 169:21

188:5 215:6

286:16,17

289:12

everybody's

174:18 252:1

everything's

185:3

evidence 17:15

19:6 21:18

32:1 108:1,2

109:4 122:9

136:7 142:3

146:20 148:16

169:1,6 186:15

evident 204:18

evolution

193:22

evolving 305:15

310:12

ex 20:18 21:19

21:20 42:16

59:19 82:10

206:8

exact 93:17

222:6

exactly 13:12

44:1 185:8

248:14 291:22

293:11,17

examination

205:16

examine 110:16

examining

238:7

example 17:12

17:18 19:2

26:14 32:16

47:7,13 59:12

66:10 71:9

73:7 81:7

83:17 99:22

109:10 153:8
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

17

165:18 167:1

169:19 186:16

188:10 190:11

207:1 222:16

225:8 256:13

259:5,17 265:6

268:20 281:6

290:16 298:16

300:12 302:2

exasperation

291:17

exceedingly

69:14

exception 14:11

15:19 16:1

115:7 117:12

130:7 139:14

143:6 149:18

150:2,4,5,15

150:17 151:6,9

183:3,6 184:16

185:14 186:5,8

186:20 259:21

262:1,15

exceptions

95:13 102:7

117:9 152:6

202:2,4 299:20

300:1

exchange 7:7

84:3 166:15

233:8 257:4

excited 283:3

excitement 35:8

exclude 86:18

excluded 195:5

exclusive 218:13

Excuse 162:16

execute 256:15

executed 85:15

execution 292:3

executive 20:8

68:20,21 81:7

81:11 84:3

85:12 125:22

126:16 127:21

128:5,14 140:2

140:4 142:13

142:14 182:20

183:1 187:17

188:12 229:15

256:14 291:4

291:22 292:1

293:11,17

exempted

229:13

exercised 127:7

234:20

exercising

121:20

exist 102:8

160:13 184:18

227:6 240:7

287:6 301:8

existence 156:12

existing 128:19

310:14

expanded 87:4

expect 5:20

46:22 58:15

77:22 83:19

169:2,7

expectation

121:6 190:9,13

227:9

expeditiously

32:19

experience 45:6

99:2,14 187:1

210:14 219:5

284:9

experiencing

218:17 219:6

expert 252:7

experts 261:11

290:14 291:2

expire 69:4

expired 50:5

56:13 283:18

expires 313:17

explain 11:6

20:7 44:1

50:11,19 58:2

58:12 82:7

129:5 193:8

262:13 311:17

explained 21:5

28:2 212:3,22

213:10

explaining 21:8

39:2 91:14

explanation

56:21 76:4

explicate 76:8

explicates 87:11

explicitly 164:10

164:11 165:5

explosives 56:20

exposes 229:5

expository

275:14

expression

124:12 299:3

expunged

117:10

extended 110:17

extensive 11:5,7

44:20 45:16

210:14 235:1

241:7 297:17

extent 20:13

45:1 65:4 81:3

88:8 112:14

163:11 170:4

207:22 221:11

274:3 275:3

308:7

external 84:22

258:19

extra 33:15

297:10

extra-territori...

214:4,18

225:17 227:17

229:5 234:12

244:14 245:12

270:13 271:12

271:18,19

289:18

extraterritorial

216:5 224:3

234:4,9,15

256:1 268:18

268:21 291:9

303:1

extreme 168:3

169:19 242:3

extremely 49:2

251:5 254:6,16

eye 99:5

F

FAA 123:17

165:14,19

166:16

fable 221:10

face 142:4

187:22

Facebook 191:7

faces 130:21

facetious 167:20

facial 154:17

facilitate 229:14

facilities 281:11

facility 162:15

168:4

facing 218:21

fact 10:19 12:1

16:21 27:15

32:8 40:9,19

45:2 46:19

47:6 52:20

59:4 64:17

66:15 74:14

77:2 84:16

87:22 92:8

95:8 103:12

134:14 135:22

139:7 143:18

150:1,15

155:13 158:10

158:13 159:9

160:11 163:4

166:1 172:14

173:7 177:22

180:18 200:16

214:5 215:16

218:13 219:13

221:10 244:12

245:5,7 246:14

251:14,15

252:13 253:3

258:20,22

274:22 275:3

284:8 290:21

294:6 302:19

fact-specific

41:15

factor 33:8

157:1 235:2

factors 23:6

facts 33:14

41:16 187:10

failed 213:7

failure 229:4

230:4

fair 54:3 102:21

108:21 113:1

158:6,7 159:6

164:12 193:18

208:19 260:20

260:22 261:3

262:10 308:6

fairly 84:3 97:14

99:13 102:9

158:4 180:7

faith 71:19

250:21 267:21

faithfully 85:15

fall 94:9 104:13
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

18

229:22 302:17

falling 9:6

falls 144:14

false 284:14

familiar 35:11

219:2,21

family 211:5

far 48:15 88:19

97:6 117:2

144:3 151:9

245:1 272:20

292:10

far-reaching

205:20

farthest 260:16

fashion 66:3

243:5

faulty 239:1

favor 4:17

130:11 258:5

312:15

FBI 18:4,15

19:2,3 30:6

35:13 61:19

78:22 85:21

86:4 105:17

108:3 257:9

FBI's 106:1

federal 2:13

4:10 5:10

86:21 111:6

feel 136:22

137:2 154:3

fellow 240:3

field 233:19

fifty 214:14

fifty-six 218:6

fighting 303:21

figure 24:15

29:12 32:18

67:4 172:1

figuring 24:13

filed 223:12

files 45:15

filing 77:21

fill 8:15 67:1

fills 26:15

filter 192:15

filtering 192:17

final 6:21

120:15 124:9

208:21 303:9

finally 13:7

31:20 42:22

44:4 119:15

123:13 136:3

216:2 222:11

find 12:19 32:16

90:13 114:17

115:20 152:14

153:2 154:15

164:1 172:3

178:16 266:8

281:15 287:3

295:22 298:12

303:2

finding 21:11

43:12 124:7

135:22 153:19

153:20 193:12

findings 239:9

241:18 242:18

293:12

finds 123:1

169:6

fine 102:16

289:5 295:9

finger 288:13

fingers 116:17

fingertips 112:5

finish 85:4

firm 107:1

218:11 222:19

238:4

firm's 238:5

firmly 221:1,9

firms 272:4,19

272:22

first 6:12,19 8:7

10:3 20:2 24:3

25:19 27:12

31:11 32:7

33:3 38:22

39:3 59:3 75:1

76:3,12 80:6

114:3,5 119:16

119:18,22

120:10,16

121:22 125:18

129:6 132:14

132:19 133:5

135:2,16 147:9

152:2,20 153:1

153:4,6,9,10

153:16,17

154:12,14,18

155:8 156:4,14

156:20 157:14

157:18,21,22

158:4,15

161:14 164:7

165:1 169:11

171:15 179:12

180:17 182:15

187:9,15

201:20 205:3,5

210:2 211:14

211:21 218:22

221:5 223:10

232:4 235:8

236:3 247:16

248:21 256:13

258:7 272:12

273:2 285:19

288:16 292:12

294:5,6,11

297:9 305:12

FISA 5:12,16

7:19 8:21 9:8

12:16,22 15:15

15:20 16:12

20:16 29:4,6

48:1 49:7

74:19 75:13,15

76:15 83:8,9

98:13 109:2

111:3 112:13

112:21 117:15

118:10 121:16

125:19 126:12

127:20 130:18

139:4,5,9

141:7,10 149:2

150:4,6,8

158:3 165:14

173:4 184:22

184:22 185:4,5

185:6,17

186:21 187:2

194:1 195:4,6

200:20 202:9

204:13 207:8

208:2,7,14

222:8 288:20

308:20

FISC 22:10

59:10 62:12,13

62:16 72:14

112:10 115:1

134:13 202:18

202:21 222:8

294:22

five 4:12 17:18

47:8 69:5 99:9

101:8,10,11,12

104:8 172:5

214:5 301:8

flavor 37:10

flip 182:3

flipping 192:5

flowing 248:12

flows 85:19

127:9 228:21

229:20 300:10

300:18

focus 5:15 6:17

7:1,13 66:20

86:16 132:16

174:13 201:4

210:4 218:16

261:15 292:20

focused 56:3

57:12 68:11

85:22 92:19

124:10 145:20

253:10 261:16

276:4,12

focusing 51:11

55:20 254:1

folks 76:21 77:6

98:5,6 127:5

128:20 219:2,4

follow 14:15

27:11 81:16

98:4 120:10

192:20 206:13

247:1 282:17

288:14

follow-up 56:16

152:18 207:13

291:13 311:5

311:12

following 28:13

56:15 93:2

97:11 117:4

196:9 235:10

238:15 239:18

266:18

follows 66:16

166:7

force 265:6,18

forces 215:4

308:9

forecloses

164:10

foreign 1:7 2:10

3:3,21 7:14,17

7:22 8:4,18 9:2

9:5,19 10:10

11:12,16 12:3
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

19

12:12 13:5

14:11 15:22

16:3,6,17

17:14,15 29:7

31:18 32:1

43:2,21 44:15

44:21 45:3,22

46:7,8,17 47:2

49:1 51:10

58:10,16 59:6

59:9,15 60:10

60:14,18 61:1

61:8,21 67:19

67:21 68:12

73:11 79:10

80:1,16,19

81:18,19 82:1

82:2 85:6 92:6

95:9 102:13

103:1 104:20

106:6 107:21

107:22 108:6

109:4 110:3,7

111:18,22

112:1 115:6

116:2,6,7

117:11,17

122:9,15 126:2

126:2,6 127:1

127:2,8,10,14

127:19 128:2,7

128:8,14 129:3

129:12,13,21

130:3,7,15

131:13 133:10

133:15 134:3,8

138:3,3,11

139:1,5,8,15

141:5,13,13,15

141:21,21

142:12 143:3,4

143:7,15,22

144:5,12,21

145:7,18 146:9

147:2 148:6,9

148:11,14

149:2,3,4,5,7,9

149:10,14,18

150:1,12,15,21

151:2,6,9,15

162:3,7,19,22

163:8,10,17

164:3 167:11

167:11,12

169:20 171:11

173:19,22,22

174:1,2 176:9

179:22 180:14

181:1,11,14,21

183:13 184:9

184:17 185:9

185:14 186:4,8

186:13,19

195:10 202:13

204:2,2,3

207:17,18

208:1,3,8,17

209:16 210:6

210:18 215:12

215:16,17,21

231:9,10 232:6

232:17 233:1,2

235:18 236:22

239:3 240:6

245:2 253:9

255:2 257:21

258:8 262:11

262:12 264:10

274:12,16

279:5,8 281:19

281:19 283:2

285:1,5,11,11

285:12,15,16

285:17,21

286:4,6 287:13

287:17,21

288:4,18,19

290:2 294:18

303:12,13,15

304:6 309:12

foreigner

281:17

foreigners 10:20

109:11 180:18

181:21 229:10

254:7 258:3

259:1 269:1

foreignness 41:4

42:2,12 43:8

43:12 52:18

58:21 61:12,22

74:12

foreseeable

159:9

foreshadowed

239:14

forge 220:20

forgive 93:15

145:15

form 10:5 17:4

76:16

forma 99:2,6,12

99:19

format 144:15

former 234:6

forms 238:22

Fort 34:17

forth 52:11

67:22 94:19

104:3 288:20

forthright

159:14

forum 260:19

277:2 306:16

307:5

forward 32:19

113:21 242:19

247:18 273:4

274:8 310:17

310:20

foster 5:17

found 11:21

17:21 18:15

34:20 43:9,20

63:11 82:21

99:1,6,9

166:15 184:17

240:9,20 246:9

254:6 295:15

foundation

221:8,10

founded 256:22

four 41:20 42:1

113:22 114:4

178:13 283:7,8

fourth 10:16

12:1 13:1 14:9

14:11 15:2,7,9

15:12,14,17

16:2,9 17:4,22

20:6,9,11,12

21:4,7,9,11,13

22:4,11,13,19

27:13,19 28:7

28:15 39:4,6

39:15 43:4

74:21 75:19,21

80:13 94:22

116:10 117:22

119:15,18

121:2 126:5

129:2,6,14,17

130:10 131:5,6

131:20 137:4

137:19,21

138:8,16,17

142:17 144:16

144:19 146:18

148:3 154:10

154:15 160:4

172:21 175:22

180:19 182:9

182:11 183:2,3

183:4,6,8,19

184:11 185:1,8

185:20 186:5

186:12 190:4

191:18 192:1,4

192:8,17 193:7

200:4

frame 125:15

126:11 145:9

framework

216:19 222:6,9

226:19 227:18

293:14 301:11

frameworks

239:7

France 239:7

240:11,14,21

Franklin 5:4

frankly 246:3

251:4 297:8

Frazelle 5:5

free 136:22

137:2 199:3

freedom 125:1

299:2,3

Freiburg 209:17

frequently

144:3 154:15

fresh 74:14

friendly 244:7

froms 163:14,16

168:7

front 24:6 58:12

front-end

160:12 193:10

frustrating

63:11 266:8

295:16

frustration

96:14

full 12:9 69:21

75:19

full-up 21:14

fuller 87:11

fully 33:1 84:12

fulsome 76:4

function 57:22
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

20

58:1 204:16,21

205:1 303:18

functions

230:20 232:18

257:20

Fund 277:11

fundamental

87:13 256:8

257:3 259:12

fundamentally

182:4,8 251:16

funneled 185:3

further 128:22

130:8 171:12

175:22 202:11

205:16 235:12

257:14 302:7

310:10 311:5

313:9

furthers 284:14

future 229:17

291:1

G

G-10 257:18

gap 26:16 33:11

33:20

gaps 33:12

gardens 220:7

Garfield 3:16

209:11 218:4,5

271:21 273:1

274:20 284:2,7

301:5 308:14

309:3

Garfield's

310:21

gather 142:15

145:3 151:2

181:1 186:15

gathered 144:11

gathering 14:8

54:16 89:16

115:7 128:15

130:16 131:14

139:6,15

143:21 144:5

144:22 145:8

149:14 183:18

184:9 186:14

195:11 235:18

259:7 276:13

302:3

general 2:13,15

2:17,19 7:21

9:1 11:9 28:10

29:3 35:13,14

35:15,17 62:14

80:17 81:2

85:20 87:15

112:20 119:8

119:22 126:12

140:15 141:1

151:1 161:21

167:6 231:3

234:2 236:5

249:20 253:2

255:14,15

258:10 259:20

263:11,20

266:9 277:9

280:5 285:21

General's

106:15

generality

206:11 304:11

generalize

259:10

generally

106:17 107:17

107:19 130:9

149:14,19

163:3 167:7

187:5 216:18

219:19 273:21

279:8

generated 65:2

generic 57:14

106:19

generis 207:22

generous 137:7

138:21

generously

130:11

Geneva 214:5

gentlemen 36:2

geographic 91:6

133:7 162:8

geography

138:10 228:21

Georgetown 3:4

113:11

German 235:4

237:19 246:14

247:17 256:2,5

258:5 259:5

263:14 277:10

279:15 309:16

Germany 3:21

209:17 225:8

226:7 239:7

240:11,21

246:19 256:6

256:12,14,21

257:16 263:15

263:17 279:17

287:22 288:1

306:1,1 308:11

309:19 310:4,8

getting 24:11,21

35:8 51:16

62:3 99:9

103:13 125:11

154:6 264:3

298:20 301:9

310:20

give 8:13 60:17

61:3 63:22

110:3 122:4,18

142:19 159:16

160:15 197:16

213:21 250:9

250:20 256:1

263:6 266:1

268:20 272:21

280:20 282:5

282:15 284:4

305:2

given 26:19 42:1

54:1 123:19

128:11 131:14

200:16 249:7

252:3,21

277:17 282:17

306:2

gives 121:21

143:10 190:2

309:6

giving 259:1

299:11

glad 8:14 56:14

58:3

global 220:19,22

221:3 233:5,16

238:5 264:2

276:3 283:14

300:7 310:22

311:1

globally 232:8

300:4

globally-integ...

220:4

go 29:17 30:1,4

33:6,15 51:13

51:14 52:19

53:14,18 58:18

78:14 80:22

93:5 100:4

115:15 131:19

142:2 143:1

149:20,20

159:4 164:4

171:4,16 172:9

175:9,16

178:15 241:16

245:1 250:16

257:14 259:13

265:22 275:5

278:9,20 280:1

280:9 281:1

302:7,21

303:15

goal 261:6

goals 67:15,17

143:20

goes 46:14 53:20

78:21 97:12

143:12 158:20

183:11 272:20

275:21 276:9

299:16 305:13

going 21:10 34:3

36:3 48:14

50:4 51:15

52:15 53:4

60:15,17 61:9

64:15 71:11

74:17 83:1

84:7 92:16

100:16 104:15

104:21 105:1,4

132:16 136:21

143:1,18 145:9

149:17 167:3

170:8 173:3

178:1 179:16

180:2,9 181:21

182:10,14

183:18 195:11

196:1 209:2

210:4 213:15

223:13,19

226:6 227:2

228:8 244:2

250:14 261:6

264:11 265:13

281:18 286:22

287:3 295:5

296:9 302:12

305:16,17
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

21

309:14,15

good 4:2 56:17

68:2,7 71:19

75:5,7 145:11

209:6 250:21

267:20 275:9

299:20,21

Google 191:7

Google.com

51:7 55:4

60:17 167:2

207:2

gotten 29:6,16

29:21 251:5

govern 111:20

229:11

governing 105:3

government

2:10 6:12 8:1

11:6 16:3

20:19 30:22

31:6 38:4,14

40:14 54:10

64:4 66:19,20

67:4 70:13,21

94:19 97:17

108:6 109:13

110:4 111:18

121:3,20 122:4

122:11,18,21

123:7,10,15

124:20 125:3

126:8 130:12

130:21 131:7

132:5 142:1

143:12,21

145:1 151:14

151:17,20

152:8 158:11

158:13,22

159:16 160:3

162:17 163:2

166:6,22 167:8

169:5 171:3

174:16,21

175:5,6,19

183:12 187:19

187:21 189:4,8

190:20 194:12

194:17 196:4

196:16,20

197:16,17,19

198:22 199:20

201:19 206:22

207:1,7 211:16

215:12 222:14

222:22 225:18

228:10 234:17

239:3 241:1,2

242:5 246:3,4

246:9,14

248:22 250:3

251:10 267:2

267:12 268:3,6

270:20 271:2,7

272:15 273:14

274:13 290:8

291:16 294:17

295:11,21

300:6 308:17

government's

7:14 28:9

31:11 37:15

122:2,19

125:16 159:1

159:21 169:10

174:15 187:10

188:2 189:5

192:7 241:4

303:3

governmental

238:9,20 239:1

governments

106:7 112:1

126:2 215:17

215:21 234:3

240:22 242:2

246:5,20 250:8

267:19 268:16

282:11 283:2

286:6 290:7,14

300:17 303:5

grabbed 284:21

grade 277:6

282:15

grand 4:7

153:12 156:7

156:18 194:6

grandmother

81:22 167:21

167:22

grandmothers

171:20

grandson 168:1

granted 183:14

granting 228:9

granular 62:18

granularity

273:10

grave 285:4

gray 172:2

great 13:20

52:19 58:2

80:11 136:20

137:16 201:15

222:4 251:12

252:21 253:8

254:8 296:2

greater 47:16

48:15 94:2,11

221:12,14,21

240:1 252:11

272:13 273:10

273:15,19

301:11

greatest 7:6

grievances

200:17

ground 5:20

grounds 205:3,4

group 8:12

203:20 211:22

228:8 290:13

291:2

groups 45:13

213:16 215:19

251:12 290:6

290:18

growth 118:12

guaranteed

304:20

guarantees

237:11 242:10

258:6,21

guards 298:13

guess 15:1 29:1

33:12 54:12

61:21 83:5

146:8 171:22

176:11 186:11

189:22 193:8

203:12 207:21

208:2 209:22

243:7,11,22

254:20 264:6

272:17 274:10

282:2 292:7

295:7,18

guidance 226:18

249:14 309:10

guideline 104:6

guy 55:3,8 60:16

73:10 137:22

167:2 207:2,2

H

hacker 108:10

half 34:15 98:6

halves 162:6

hand 41:16

119:19,19

188:14 191:3,4

206:3 247:22

313:12

handed 139:22

handle 19:9

34:10 168:8

handling 217:20

hands 174:15

291:3

hanging 24:12

happen 21:21

254:5

happened

115:13 171:3

292:18 300:14

307:11

happening

68:20 137:10

185:3 248:11

happens 62:4,4

72:8 73:13

120:7

happy 27:9

50:10 116:1

120:12 198:8

200:9

harbor 220:11

300:11

hard 33:14 39:2

191:10 301:2

harder 138:8

266:17

harms 228:14

Harold 223:20

234:6 252:6

Harper 212:3

212:11 213:9

head 87:12

95:12 101:20

210:12 212:20

headed 292:2

hear 76:6 171:8

215:9 294:10

heard 70:7,8

115:4 172:12

186:6 193:17

274:15 279:10

289:16

hearing 1:5,15
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

22

4:4,9,16,17 5:1

5:17 7:13

117:5 206:13

312:4,13,15,15

312:21

hearings 57:22

heart 305:13

heartening

276:10

heeds 269:2

held 1:15 15:21

16:12 129:22

130:5 142:6

147:13 150:3

186:19 201:10

201:14 213:5

307:6

help 20:14 66:13

135:11,12

146:11 194:8

194:10 202:14

218:19 292:8

296:1

helpful 24:2,18

50:16 58:6

88:1 117:16

152:15 153:2

192:19 221:15

221:20 222:15

223:8 260:18

272:10 273:5

273:11 275:5

311:6,22

helping 66:20

high 32:6 34:11

103:16 124:22

178:22 179:10

180:7 221:2

261:1,4,8

higher 95:21

highly 129:17

234:22

hill 222:3

historic 51:19

historical

128:21 233:10

historically

10:21 82:14

88:7 97:7

183:10,12

history 12:8

123:3 125:20

128:11 130:13

166:12,15

167:12 181:20

185:16 214:13

hits 299:22

Hofstra 3:8

113:14

Hogan 3:22

209:18 238:4,6

hold 93:3 97:9

holding 297:13

holistic 83:3

home 169:5

211:5 232:22

235:11

homeland

236:14

homework

311:11

honest 268:19

honestly 41:2

203:22

honor 219:9

267:20

honored 262:15

Hood 34:18

hope 46:22

132:12 136:16

173:20 276:14

host 100:6 136:9

hostile 285:4

Hotel 1:16 4:7

hours 98:6

house 138:1

217:10 226:7

huge 36:5 175:1

180:20 198:22

human 3:19

207:4 209:14

210:17,22

211:22 213:9

213:15,16,18

214:6,22 215:5

215:19 226:12

226:17 227:20

231:1 233:14

233:17,19

234:1 235:22

236:2 237:5,9

244:22 246:15

246:17 249:21

250:4,6,17,22

251:4,8,10

259:3 268:9

290:5,11,12,18

307:8 308:5,8

humanly 45:1

humans 233:14

humility 222:4

Humor 299:8

hundred 36:13

168:20

hunting 45:9

hurting 261:5

hypothetical

174:11 190:1

190:17 191:20

hypotheticals

167:17 170:6

170:15,19

I

i.e 26:9 173:2

ICCPR 211:8

211:10,14

212:1,4,6,9

214:3,17

215:13 216:3,4

216:8 217:1

224:3 225:17

226:13 234:4,8

234:12,16

236:21 242:21

244:13 246:8

246:12 248:8

249:1 252:7

261:16 268:21

278:15,20

280:10 289:18

289:20 290:4

291:10,11

295:10 296:4

297:15 298:11

306:6,15 307:7

307:19 308:1

ICCPR's 282:7

ICJ 290:17

idea 256:17

ideas 252:17

identifiable

81:14 179:3

identification

154:16,18

identifier 28:18

193:5

identifiers 37:3

37:19 295:1

identifies 163:2

identify 9:2 65:5

87:14 123:6

178:20

identifying 53:9

104:10

identity 60:8

idiosyncrasies

97:15

ignore 41:12

168:7 169:3,7

ignored 46:4

ignoring 172:4

IGs 308:20

II 3:1 142:14

144:6 194:1,4

III 3:13 29:10

121:16 155:21

197:18 206:7

illegal 263:8

illegitimacy

159:20

illegitimate

163:18

illustrating

302:16

imagine 30:3

76:17 204:22

297:8

immediately

101:19 201:21

265:1

impact 28:20

29:2 87:4

184:4 218:22

219:12,14,18

272:3 280:15

293:4

impacting

287:10

impacts 232:3

299:3

impair 280:14

impermissible

89:5 288:18

implement

58:13 268:8

implementation

69:19,20

188:11 310:6

implemented

69:20 74:21

306:21

implementing

187:19,21

196:6 267:15

306:19

implicate

192:17

implicated

115:20 153:4
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

23

171:16 191:19

248:18

implicates 14:9

implicating

94:12 155:8

implication

47:17 157:22

256:1

implications

27:14 33:2

114:20 120:10

123:4 138:15

170:22 171:10

175:1,22

198:12 205:20

205:21 219:18

220:16

implicitly 162:5

162:5 165:19

310:22

import 42:7

88:20

importance

247:20 273:19

274:8 292:15

301:10

important 10:2

12:13 13:13

19:8 36:12,17

49:19 60:1,10

65:13 69:9,14

80:7 82:5

119:12 124:10

125:18 139:11

143:5 151:11

187:15 198:19

199:15 201:5

221:4 222:10

223:4 236:9

248:7 251:1,3

254:14,18

273:13 275:17

289:1 311:10

importantly

305:12

impose 216:4

imposed 128:15

129:4 131:18

imposes 129:2

212:4 215:14

229:5

imposing 194:16

impossible

260:4

imprecise

208:10

impression 77:6

98:20 100:8

307:22

impressionistic

65:11

in-country

282:13

inadvertent

97:2 101:1,6

101:18,22

102:2

inadvertently

94:13 100:20

122:12 201:17

inaudible

259:14 303:12

incident 72:13

73:16 88:4

incidental 12:10

12:14 14:1

15:3 43:19

45:14 81:17

82:6,13 94:12

96:6,7,8,15,19

96:22 97:2

100:18 101:4,7

101:18,22

102:4,10

103:12 115:13

158:21 159:7

160:2,4,10

201:1

incidentally

12:2 13:3

15:12 16:10,20

17:11 43:18

52:13 79:21

80:1 92:9

106:4 108:13

159:3 160:13

180:3

incidents 11:12

11:20 34:17

include 75:13

109:11 117:16

117:17,18,19

124:1 135:13

151:4 215:2

270:6 276:21

included 128:9

200:18 308:22

includes 11:7,11

11:13 84:17

239:10 273:20

including 6:18

21:12 121:16

172:14 187:7

203:11 222:2

233:6 250:8

251:4,18 273:7

282:5 308:18

inclusion 114:5

inconvenience

49:6,10

incorrect 38:16

72:11 211:8

increasing

118:11

increasingly

219:9 220:2

incredibly

152:14 221:20

223:4,8

incrementally

228:10

increments

42:18

independent

240:2 308:16

308:21

indicated

271:22

indicates 84:2

171:15

indication 118:7

282:16

indicator 172:11

indicators 48:4

172:22

indicia 121:14

indictment

86:20,21 88:11

118:18

indifferent

198:22

indiscriminate

223:7 274:14

274:22 275:4

individual 29:13

64:11 73:18

106:22 114:10

114:18 116:8

123:5 141:12

149:8 154:7

170:1 177:20

178:6 205:12

205:13,21,22

212:14 225:19

225:22 227:12

228:12 237:17

281:16 294:1

310:6,6

individual's

254:11 298:15

298:17

individualized

10:17 158:7,17

160:7 199:2

206:4

individuals

115:20 118:3

120:1 140:1

141:17 212:9

214:11 217:11

229:22 237:15

237:16 242:5

244:15 245:13

248:4 253:7,10

271:17 281:7,9

281:10 292:2

industry 3:17

209:13 232:12

237:7 275:19

310:21

ineffectual

126:15

inevitable 83:5

inevitably 6:1

informally

24:11

information

3:16 5:22 6:3,6

6:10 7:15,19

8:1 9:21 10:1

13:4,14 14:13

15:11 16:10

17:8,11,13,19

18:9,22 19:3,5

19:10,12,16,19

19:22 27:16

28:1,6,7,8,11

29:9,14,17,18

30:2,5,21,21

31:2,4,10,16

31:19,21 32:10

32:11,21 33:16

34:21 35:3

36:4 37:15

38:20 41:11,12

41:21,22 42:8

43:17,17,20

44:9,14 45:14

46:13,18,21

47:3,4 48:22
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

24

51:8,11,15,16

52:2 53:5,15

57:7,8,12

58:11,16,19

60:17,18 65:9

67:20 68:6

69:22 70:9

72:9,18 73:3

77:20 79:11

80:20,20 81:9

81:14,17 83:18

86:1,2,14 89:4

89:16 93:12

95:10 100:19

103:12 104:1

104:10,12,18

104:20 105:5

106:4 107:20

108:9,11,15

109:12 110:3,6

110:11 111:8,9

111:22 112:8

112:21 114:5

115:5,9 117:10

117:11,16,18

117:19 118:3

119:5 120:5

122:15 133:11

134:8 136:2,14

139:17 141:7

142:2 143:21

144:1,2 145:3

146:3 147:4,12

147:13,19

148:10,17

151:3 154:3,7

154:9 157:10

157:12 158:15

159:2,8,17

162:3,18

167:19 169:21

170:9 171:4,14

173:8,9 174:1

174:15 175:20

176:6,6,7,17

177:13,18

178:16 179:3

179:11,18

180:2,6,10,12

181:1 191:10

193:1,2 198:1

198:11,17

199:14,18

200:3 201:1,3

201:10,12

203:17 209:12

217:21 226:22

237:16 239:10

240:6 242:2

243:18 244:5

254:2,7,10,15

256:17 257:4

273:14,15

279:6 281:18

285:2,10,16,20

286:1 287:13

287:20 293:1

294:18 311:15

information's

146:16

informative

67:19 152:15

informed 84:12

226:22

infringe 304:14

infringed

234:21 302:2

infringement

231:17 232:12

302:5 303:19

304:18

infringements

232:1,5 235:15

304:7

infringes 235:8

235:9

infringing 264:9

303:13

inherent 10:22

125:22 127:13

131:17 182:20

183:1

initial 64:3 74:9

78:9 114:1

118:7

initially 79:13

118:10

initiate 231:9

237:1

injury 172:17

innocent 171:21

innovative

218:7

inquiry 56:17

insensitive

217:8

insert 205:14

inserting 201:11

inside 9:16 20:8

91:10 97:20

128:2 159:19

212:5 245:6

282:10 283:3

306:1

insight 308:22

insights 194:6

insist 282:12

insofar 249:6

inspect 123:8

189:21

inspecting 197:2

inspectors 11:9

62:14

installed 190:2

installs 189:8,8

instance 31:12

111:20 114:11

119:21 120:2

136:13 253:13

instances 277:14

Institute 3:20

209:16

institutional

99:10 257:10

institutions

257:8,9,12

instrument

267:4

integrated

220:15

integrity 219:10

223:2,3 231:5

232:2,6,11

264:15,22

265:5 305:8

intel 98:21

intelligence 1:7

2:11,18 3:3

7:14,17,22,22

8:4,18 9:2,3,6

9:19 10:10,19

11:11,12,17

12:4 13:5

14:11 16:1,4,7

16:18 17:14,15

31:18 32:1

33:22 35:16

42:20 43:3,21

44:15,22 45:4

45:11,22 46:8

46:8,15,17,19

47:2 49:1

51:11 58:10,16

59:2,7,9,15,21

60:10,14,18

61:1,8,22

64:18,21 65:13

65:21 66:2,8

67:20 68:12

72:10 79:10

80:2,16,18,19

81:2 82:1,3

83:16 84:10,12

84:16 85:6

86:1 92:6

95:10 99:11

100:3,6,9

102:13 103:2,5

104:11,20

107:21,22

109:4 110:7

111:22 115:6,8

116:2 117:11

118:4,8 122:15

127:2,8 128:2

128:8,15 129:3

129:21 130:3,7

130:15 131:14

133:11,15

134:4,8 139:1

139:5,8,15

141:5,16

142:12,15

143:3,4,7,15

143:20,22

144:5,12,22

145:7,19 146:9

147:3 148:6,10

148:12,15

149:8,14,18

150:1,12,15

151:2,6,9

161:22 162:3,7

162:19,22

163:8,11,17

164:3 169:20

171:11 173:19

174:1,2 176:9

179:22 180:14

181:1,11

183:18 184:9

184:17 185:9

185:14 186:5,8

186:13,19

188:12 195:10

195:12 202:14

204:2,3 208:1

208:3,17

210:15 217:15

235:18 240:6
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

25

240:14,18

241:10 253:4

253:12 255:2

256:14,19

257:1,21

258:19 259:7

262:11,12

274:12,16

276:9,13 279:5

281:19,20

285:1,7,15

288:19 294:18

302:3 309:12

intend 100:22

223:1 239:12

intended 77:9

97:7 122:1,17

274:21

intensively

276:5

intent 89:15

286:6

intention 134:3

intentional

11:21 40:16

96:16 130:22

intentionally

9:13 97:18

131:8

intentions 67:21

interact 175:3,4

interaction

99:19

interactions

99:10,11,17

intercept 9:13

12:17

intercepted 12:3

intercepting

51:18 233:2

interception

118:20 161:4

233:4 235:7

interest 102:22

103:16 140:21

148:21 159:21

237:20 253:12

261:20

interested 91:15

92:7 132:20

251:5 269:18

276:19 312:7

313:11

interesting

147:15 263:14

interests 16:5

27:4,4 47:17

131:12 143:12

145:5 217:20

218:1 224:2

230:6,17,17

240:17 260:3

261:18 264:9

278:14

interfere 254:11

300:17

interference

211:5 216:9,12

298:14

interfering

230:2

internal 41:18

54:10 70:12

236:10 241:15

257:16 258:18

259:22 274:13

international

3:21 121:5

122:2 123:21

138:14 147:4

148:1 209:17

210:5,15,20,22

211:10,11,11

215:14 216:1

216:13,16,19

217:3,5 218:1

223:16 227:10

230:14 231:3

231:13,17

232:6 233:17

233:19,21,22

235:22 236:2,4

236:12 237:3,9

252:2 260:10

261:10 262:2

262:14,20

263:11,21

264:8 265:6,10

265:21 267:4,8

272:3 276:7

278:6 285:5,6

286:13 289:4,4

289:7,8,9

298:5 301:17

305:21 306:5

306:10,11,20

internationally

138:22 139:7

238:20 273:22

275:6 276:8

289:11 305:18

Internet 26:7,8

191:9 219:19

219:21 220:4

220:15

interpret 107:6

225:7 244:1,3

268:4

interpretation

87:1,2 202:15

212:19 213:18

214:10 225:14

247:22 249:5,9

250:11,19

268:1,6 269:2

269:12,18,22

278:19 291:1,5

296:12 299:1

interpretations

243:8 249:14

interpreted

125:20 130:10

137:19 184:12

224:13,22

270:13

interpreters

249:7 252:5

interpreting

246:16 249:12

249:13

interpretive

226:13

interprets 268:3

interrelated

230:18

interrupting

48:11

intervene 205:2

205:6

intervention

297:22

interviews

297:17

introduce 35:9

37:8 209:8

introducing

33:9

intrusions

131:22

invaded 190:8

invasion 190:12

investigate

34:16 302:10

investigation

116:9 141:19

investigations

2:14 124:5

investment

300:13

inviolate 261:21

invitation

230:13 309:9

inviting 218:8

involve 21:18

86:15 150:19

286:9

involved 70:6

88:1 132:2

141:3 149:11

150:19 160:5

198:13

involvement

141:20 202:18

202:21

involves 188:16

190:18

involving

199:14

invulnerability

239:3

IP 120:1,6,7

irrelevant

165:10

irrespective

183:2 258:10

islands 220:14

isolate 66:4

isolation 66:5

ISPs 26:2

Israel 225:13

issue 21:8 37:16

37:17 49:15

56:11 57:4

69:17 91:6

106:18 110:21

138:9 223:20

225:10 226:18

240:18 269:4

276:7 295:13

295:18 296:15

300:21 301:9

301:13 303:8

issued 5:13

21:10 75:2,18

156:18

issues 3:2,14

5:19 6:18,19

7:2 20:22

21:10,22 34:6

36:15 73:7
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

26

74:18 113:3

132:17 136:10

136:11 144:19

197:9,11 198:6

198:7 209:9

221:2 227:3

243:1,7,15

261:12 300:16

311:14

It'll 76:18

Italy 239:11

240:11

item 73:3

J

Jaffer 3:6

113:12 120:18

120:20 149:17

149:21 158:6

164:7,18 165:7

165:12 168:18

168:20 173:10

173:15,18

180:16 186:7

186:17 187:14

190:6 192:2,9

192:16 193:13

196:15 198:18

199:9,22

201:16 202:2

205:18

Jameel 3:6

113:11 149:16

153:22 160:20

164:4,5 186:2

196:10

Jameel's 170:4

James 2:6,13

4:14

Janosek 5:5

January 5:13

47:19 221:7

237:14 276:12

Jazeera 120:6

Jim 32:5 35:12

69:10 96:3

160:15 306:13

job 64:19 80:18

99:8 257:19

284:2

Joe 108:5,7,12

287:21

John 3:15

209:10 266:15

286:15 295:8

305:2 306:14

307:17

joined 113:10

209:10

joining 209:1

jointly 162:1

journalist 207:4

judge 43:14

77:13,16 78:7

82:6 106:2

111:14 117:8

163:4 167:14

171:11 200:14

248:19 252:20

265:11 277:15

283:17 289:1

289:15 300:5

307:15

Judge's 50:5

judged 185:19

judgement 76:9

76:12 97:7

140:13

judgements

275:15

judicial 11:3

14:18 119:18

124:6 156:16

156:20 157:19

160:11 201:11

205:19 206:9

237:1 241:4

292:4 293:2,20

307:19 310:3,9

judicially

307:13

judiciary 293:12

293:13,13

Julian 3:8

113:13

jump 137:2

264:11 284:3,4

295:9

juris 263:2

jurisdiction

22:16 83:21

212:10,15

213:3 214:12

214:21 215:2

216:7 224:10

224:12 230:1

243:10 244:2,4

244:4,5 247:3

247:5,11 248:2

263:18 270:2,3

270:4 296:6,7

297:12

jurisdictional

224:7 243:1,6

243:15,16

245:11 246:21

248:9 270:12

jurisdictions

226:16

jurisprudence

308:6

jury 153:12

156:7,18

justice 2:20 3:11

11:9 35:18

42:19 59:20

61:13 62:9

66:6 67:3 74:4

106:14 113:17

140:3,10,19,20

167:7 210:13

233:22 272:19

273:3

justices 140:10

140:18 249:11

justifiably 175:8

justification

54:15 187:13

justified 259:16

259:20

justify 159:13

186:9

K

Katz 140:9

keep 6:6 7:5

72:8 84:11

101:10,11

102:18,22

103:7,11,15

104:8 116:15

119:4 126:13

128:12 138:10

171:5 283:3,7

Keeping 54:5

kept 45:8 106:5

135:9 207:1

254:3 293:6

Kerry 277:10

key 26:14 56:4,6

57:13 108:6,11

135:15

kick 102:12

154:1

kid 128:18

killing 224:19

kind 11:2 12:14

18:21 21:14

33:7 35:1

53:20 65:4

73:20 76:2

86:1 92:18

124:5 138:5

157:7 159:6

160:12 162:8

162:11,11

166:13,19

168:4 173:13

174:11,22

177:10 180:5,8

180:9 188:22

189:1,2 190:17

199:12,12

202:8 216:20

226:5 230:13

242:13 253:19

310:20

kinds 20:12

158:18 180:17

Kingdom 239:8

240:11

knew 12:9 70:10

177:8 180:1

know 16:14

20:16 22:6

32:18 33:20

34:6 36:9 40:1

41:2 51:6,7

55:3 70:18

76:1 78:15

81:21 82:10,10

83:10,11 84:13

84:20 85:5

90:5,14 91:19

92:13,22 93:17

99:15 104:5

105:16 106:10

108:11 110:9

114:12 120:1

120:22 131:3

132:19 134:2,6

135:5,7 136:12

139:14 151:16

154:18 155:15

157:21 158:21

159:4 163:4

167:2,10

168:22 169:3,4

169:17 170:15

172:8 173:3,6
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

27

174:9,9,12

175:13 177:3,4

179:1,2,2,3

184:11 186:22

187:20 188:3

188:19 190:7

194:6 197:15

198:18,20

199:15 200:21

202:4,13 206:1

206:9,12

208:12,15,19

210:8,16

213:14 217:10

220:9,15 222:5

222:5 240:4

243:17 244:17

245:21 247:21

249:6,8 251:8

252:4 254:13

265:9,12

266:21 267:18

270:12 271:6

271:14,15

272:12 279:7

279:10,18,21

281:2,14 282:3

286:13,20

287:10,16,16

290:15,22

291:6,8,10,14

292:21 293:3

295:3 296:9,19

297:3,20 299:4

300:2,5

knowing 229:3

knowledge

69:21

known 25:20

27:15 29:10

89:12 123:18

133:6 254:9

273:21

knows 87:20

265:12

Koh 234:6,8

252:6

Koh's 223:21

247:21

Ku 3:8 113:13

125:6,7 137:3

137:16 139:14

142:20,22

145:12 149:15

181:6,7 182:15

183:5 184:10

193:17 194:5

202:6,7

Ku's 147:1

L

lack 26:7 180:19

193:9 194:22

198:13 200:20

239:16 241:8

256:18 284:12

293:19 294:19

295:15

lacking 99:3

lacks 121:13

291:18

laid 94:8

language 123:2

161:18 214:13

224:21 290:15

large 47:6 57:21

121:3 150:10

187:6,12 188:4

189:3,10,11

232:2 292:13

295:17

largely 75:18

144:7

larger 49:1

138:9 144:17

277:13

latitude 19:4

Laughter 261:7

283:21

Laura 3:4,18

113:10 136:4

209:13 213:14

245:17 251:19

254:21 266:18

284:19 298:6

305:20

law 3:4,5,8,21

8:1 13:6 19:7

85:14 102:3,11

104:6 113:10

113:11,14

118:5 125:14

127:4 136:5

143:19 144:20

155:22 182:11

182:12,12

196:12 197:21

198:4,21

203:17 209:17

210:5,15,20

211:10,11

215:14 216:1

216:16,19

217:3,5 218:2

224:21 226:15

227:8,10 230:8

231:3,13,17

232:7 234:1

237:5,19 238:4

240:9 255:3,12

258:9,9 259:20

259:22 260:22

261:10 262:2

262:14,20

263:1,5,9,11

263:21 264:8

265:7,8,10,20

265:21 266:11

266:14,19

267:4,14 269:5

269:8,9 277:12

279:15,16

280:13 287:2

289:4,4,7,8,9

296:20 298:5

299:20 301:19

301:19 304:22

305:21 306:21

309:14

lawful 21:4

32:12 53:19

111:8,10 193:2

199:8 227:21

lawfully 13:5

28:5 29:19

30:20 31:3

34:21 37:14,20

38:21 102:20

175:20 177:14

179:11,19,21

180:12 181:16

193:2 196:11

196:13 197:14

197:17,19,22

198:9 199:14

199:19

lawless 126:16

laws 85:15

198:10 226:19

228:16 239:11

241:15 242:11

275:8,10 284:1

286:12 306:1,3

306:22 311:2

lawyer 87:21

88:1 156:12

lawyer's 299:15

lawyers 87:6,19

153:14

lead 34:6 195:1

201:12 236:12

238:5 262:6

302:20

leader 254:8

leaders 217:12

leading 237:4

252:7

leads 164:14

leak 297:20

leaked 6:1

leaking 144:3

leaks 70:13

learn 134:14

leave 76:20

100:8

leaving 121:18

led 249:17

left 204:9 270:1

299:17 301:9

legal 3:2,6 5:18

6:17 10:13

20:22 21:15,22

25:13 29:21

53:21 54:8

70:15,21 72:12

72:20 106:21

113:12 126:11

140:14 145:6

210:8,10

211:12 212:3

213:20 214:7

215:20 218:2

230:14 232:20

234:6 237:21

238:8,21 267:3

289:13 301:20

303:13 304:8

306:5,10,11

307:3

legally 176:12

250:5,12

268:12 299:13

299:13 307:14

legislation 220:5

229:16 271:14

284:17 306:19

legislative 12:8

84:4 123:3

166:12,15

167:12 291:21
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

28

292:6

legislators

166:19

legitimacy

163:14

legitimate 91:8

92:12 106:5

143:11 151:15

172:20 206:13

206:14 217:19

227:22 228:1,5

legitimately

95:4 167:18

169:22 207:7

296:10

length 121:12

lengths 52:20

lengthy 84:17

223:12

lesser 254:8

256:19 282:3,4

lessons 275:10

let's 29:11 32:16

73:9 78:11

91:7 108:9

120:7 156:6,17

157:6 160:15

176:7 197:15

265:22 266:5

282:21 297:11

297:12 305:2

310:14

letter 87:8,10

132:21 181:13

181:15,17,18

273:9

letters 226:7

level 32:6 34:11

72:22 206:11

221:3 272:9

273:6,10 278:5

LEVINSON-...

202:20

Levinson-Wal...

3:9 113:15

132:9,10 161:8

162:20 163:20

168:19 170:3

179:13,15

202:16 203:5

203:12 204:6

207:16,20

libertarian

222:7

liberties 1:3 3:7

4:3 93:2

218:10 222:8

255:16

liberty 3:9

113:15 228:13

242:16

license 199:17

199:18,20

200:3

life 297:18 302:4

302:12

lift 204:1 207:16

light 16:2,13,21

130:13 135:3

135:12 275:18

likelihood 40:2

94:12

limit 17:19

196:12 206:22

213:12 238:9

246:18

limitation

123:20 196:14

limitations 81:4

126:5,19 129:2

131:18 185:22

240:9 245:22

limited 63:5

68:16,21 137:4

184:3 191:3,13

220:8 225:7

234:16 240:5

257:5

limiting 197:22

198:4 200:12

201:9 203:16

limits 31:9

79:20 169:10

169:12 185:8

203:8 207:6

214:19 246:12

255:13 289:22

291:11 306:7

line 56:17 79:22

119:20 138:12

201:15 216:22

229:18 282:16

288:16

lines 41:20

57:15 58:8

168:1

link 154:14

linking 235:11

list 81:11 208:13

309:22

listen 115:17

literally 123:10

161:18,20

162:14

Litt 2:17 8:8,10

21:16 24:1,22

34:13 35:14

39:12,17 48:6

48:13 49:9

53:7 63:15

64:9 69:8

70:11 75:7,10

80:6 84:7

96:22 97:22

98:2 99:8

101:14,21

102:6,20 103:1

103:4 104:13

105:11 107:8

107:15 112:11

112:18,20

Litt's 14:15

little 19:4 20:17

23:19,21 24:20

25:1 28:19

30:7 39:18

41:17 45:6

61:2 80:3 82:7

89:1 93:6

98:20 104:15

105:7 147:16

149:2 159:4

171:7,13

181:19 185:2

189:7 191:1

195:3 204:18

223:13 253:1

257:2 266:17

291:16 293:8

live 263:10,22

lived 99:22

lives 220:1

Livingston 1:22

313:4,15

local 239:4

localize 228:17

located 4:7 8:3

37:11 40:10,20

40:22 41:6

49:21 52:17,21

73:21 114:15

176:19 231:8

231:10

location 60:8

114:10

logical 124:19

long 17:19

124:17 125:2

127:6 130:13

181:20 185:16

230:5 233:10

272:16 280:1

long-lasting

235:12

long-standing

213:18

longer 73:14

look 16:16 24:4

29:20 30:2,5

32:14,15,17

33:18 49:13

65:1,16 68:5

68:13,14,15

80:22 81:19,20

83:2 92:17

93:1 111:2

119:12 130:20

140:22 142:2

158:2 159:11

165:17 173:4

178:14,19

188:10 193:21

194:20 198:16

242:19 249:13

256:5 257:15

258:2 271:5,8

291:20 292:18

293:22 294:1

299:10 308:4

looked 121:15

141:10 239:6

255:1

looking 50:12

65:8 113:21

161:18,20

200:6 202:8

242:9 266:22

292:14 304:15

looks 144:16

149:16 206:6

loop 192:21

loopholes 97:15

loose 204:4

loosely 126:4

losers 275:16

losing 233:9

loss 219:17

lost 71:13 192:9

273:16

lot 36:14 43:2
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

29

44:6 68:8 75:7

75:11 76:7

94:7 99:14

105:20 143:21

184:21 195:8

213:16 222:16

226:22 252:22

277:1 279:14

279:16,18

291:14 310:3

lots 215:17

216:14

louder 44:12

loudly 238:18

Lovells 3:22

209:18 238:4,6

lunch 6:20

209:2

Lynne 1:22

313:4,15

M

magistrate

141:1,4 155:22

magistrate's

140:13

magnitude

93:17

mail 7:12

main 133:2

134:22 226:13

260:3 281:16

mainstream

291:19

maintain 237:4

major 254:22

255:1

majority 42:4

150:5

makers 65:14

103:5 269:7

making 5:6 8:8

20:4 22:17

34:20 43:12

88:6 124:20

145:17 165:8

214:6 222:6

266:15

malicious

108:10

managed 84:8

Manfred 252:6

mangle 104:15

manipulates

231:7

mankind 233:10

manner 223:7

224:3

manufacturer's

179:6

March 1:10 4:6

4:10 7:12

312:10

Marco 225:9

market 241:15

marketplace

218:18

Marshall 277:11

Mary 214:8

Maryland 313:5

mask 109:11

masked 106:8

106:12 107:7

107:13

masking 106:10

106:13,17

109:16,18

mass 59:13

270:10 285:7

302:8,15

massive 175:1

241:13

match 208:4

matching 208:6

material 33:19

33:19 62:6

88:9,21

materials 32:15

32:17 41:18

matter 28:15,16

72:14 78:5

118:12 174:8

176:15 194:2

215:19 226:14

254:17 262:9

266:14 298:4

300:7 306:20

mattered 139:8

matters 21:17

23:11 119:20

138:11 141:1

286:9

Max 3:20

209:16

Mayflower 1:16

4:7

McLeod 214:8

mean 24:21 38:3

41:9 44:2 48:5

49:9 50:3

51:21 61:2

67:13 68:14

74:19 76:6,13

78:4,11 85:9

85:19 87:21

91:5 96:8,9,19

102:15 104:5

107:1,12

109:13 125:18

137:17 142:22

146:7 151:13

151:15 152:11

158:12,19

161:8 168:5,8

180:16 181:7

182:10 183:10

186:10 193:4

199:21 202:1,5

202:7 207:20

224:13 227:5

227:17 229:2

246:5,5 248:12

248:16 250:20

254:4 267:6

268:15 269:12

270:17 279:2

279:17 285:14

286:11 292:12

292:17 295:13

295:18 296:4

297:8 298:10

298:22 299:5,9

305:9 306:15

meaning 39:9

55:19 58:2

134:20 270:1

289:11

meaningful

123:19 308:16

308:22

meaningless

270:5,7

meanings 39:1

means 20:19

25:9,11 38:19

41:9,11,14

44:2,17 51:14

52:8 53:5

55:21 73:14

78:21 102:17

103:3 104:7,8

104:9,11 105:8

105:9,12

106:22 133:12

151:19 152:1

171:3 179:1

181:15 217:7

224:16 227:15

229:1 249:1

265:10 270:4

285:2 306:18

measures

151:20 232:21

256:20

mechanism

201:11

mechanisms

98:7 131:3

240:7

medal 263:6

media 6:2 64:5

120:8

Medine 2:3 4:2

4:5,20 13:20

17:2 18:2,8,19

19:11 20:1

35:7 43:14

50:4 53:2,16

54:12 55:18

56:12 77:10,16

78:7 85:4

86:11 88:10

89:1,19 90:3

90:10,19 91:1

91:12,17,19

92:1,15,21

106:2 112:22

113:8 116:16

120:17 125:6

132:8 136:20

142:19 152:12

160:15 167:14

168:13,16

175:16 177:6

179:13 181:6

182:6 189:17

195:21 200:14

207:9,14

208:21 209:6

218:4 223:9

230:10 238:1,3

242:20 247:1

247:15 248:19

254:19 255:7

255:15 260:6

260:12 265:22

271:21 274:6

275:7 276:22

277:15 283:17

295:5 301:3
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

30

305:2 306:12

307:5,15 309:6

312:2,18

meet 142:16

meeting 180:7

198:3

meets 21:13

274:18

member 7:5

100:5,5 239:16

241:8,10,13

members 2:1

4:12,13 6:8 7:3

7:10 36:9

100:11 207:10

210:4 218:6

220:20 312:7

memo 223:21

memorandum

234:6

mention 110:6

134:5,21

202:17 277:7

mentioned 43:1

49:17 57:13

60:16 61:20

62:15 68:19

73:8 74:5

83:22 102:6

109:7 118:15

118:22 136:4

146:14 152:18

161:11 236:5

259:18 261:14

272:7 304:4

merely 122:22

124:11 134:5

288:3 307:3

merit 76:11

message 48:12

messages 190:19

met 72:11,19

104:2 116:11

215:10 278:17

metadata 47:22

49:17,22 66:11

66:12 157:7

190:12 227:10

methods 98:11

206:14 277:3

metric 68:3

microphone

266:6

Microsoft 191:7

midway 288:13

Milanovic

225:10

military 308:10

millions 124:1

mind 6:6 33:3

34:12 126:13

128:12 138:10

196:5 299:11

308:20

mine 261:15

minimization

9:9,18 12:7,21

15:16 16:13

17:3,5 18:2,4

18:10,13,20

19:13,18,20,22

21:6,12 22:8

26:20 30:17

45:3 79:5 86:8

86:17 94:17

95:13 100:17

101:4 103:3,18

104:7,8,9,10

104:14,22

105:2,4,6,18

105:22 107:9

107:18 109:5

109:21 112:12

112:16 114:13

117:14 119:11

119:14 122:3

135:19 178:21

180:4 186:1

203:14 205:8

minimize 9:20

88:8 104:16

131:22

minimizing 87:3

minimum 23:15

136:12 310:2

Minneapolis

103:15

minute 204:9

295:13

minutes 116:20

172:6 207:10

mischaracteri...

10:4

misconception

10:4 41:2

misimpression

76:21

misleading

242:3

misperception

56:4 282:20

mission 18:14

19:7 27:4

missions 105:1

mistake 100:21

mistaken 111:2

misunderstan...

36:14

mix 6:21

mobster 115:12

model 255:4,8

255:11

moment 25:21

44:9 106:18

115:5 146:15

146:19 147:3

192:3,4 242:22

267:1

money 84:21

85:16

monitor 250:7

monitoring

171:12 197:4

290:18

monitors 307:9

Monroe 179:7

month 124:17

months 210:16

morning 4:2

20:3 27:8

167:1 182:16

188:6

morphing

162:12

motion 205:3

move 32:18

182:10 196:4,7

310:17,20

311:4 312:14

movement

73:18 175:7

movements

125:4 174:19

moves 128:21

moving 29:8

266:18

multinational

284:13 301:12

multiple 119:7

multipurpose

257:9

mutual 238:21

mutually 218:12

218:13

mysterious

76:21 77:7

MYSTIC

124:15,19

190:16

N

name 57:14

106:19 108:5

108:12 179:1,6

179:6

names 198:8

narrow 36:17

86:19,22 102:9

152:6 186:18

279:20

narrowing

208:3,9

narrowly 228:5

nation 13:16

34:22 103:6

national 2:15,18

2:20 3:10,18

7:21 9:1 11:10

35:15,17 42:20

59:21 64:18

65:10 93:1

113:16 119:19

139:19 140:16

141:2 161:22

209:14 210:10

210:12 218:10

228:4 230:5

232:7 234:3

235:19 236:12

236:22 237:10

240:12,16

241:20 242:12

245:2 253:9,10

253:14,15

254:13 255:17

258:6 272:11

272:16 273:9

275:20 277:12

286:2 287:9

300:2,9,14

301:19 305:15

306:3

nationality

133:7 162:8

217:18 233:15

237:15

nationally

305:16

nationals 210:7

210:18 290:2
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

31

nations 284:15

289:10

natural 203:15

naturally 41:14

nature 26:19

46:15 47:12,15

47:15 49:14

65:9 94:10

105:3,5 144:9

191:13 234:20

Nazi 225:6,8

256:9

necessarily 55:7

55:15 98:19

151:18 153:1

157:18 185:21

227:4,12

228:21 271:13

271:16 274:4

286:2 287:8

necessary 17:14

25:5 29:16

31:22 50:1

79:3 107:21

108:5 109:3

175:11 183:17

227:22 236:16

279:22

necessity 28:15

need 16:6 23:6

23:20 34:20

67:4 84:9 85:2

85:3 94:14

103:5 104:19

108:4 109:21

125:19 127:17

128:17 131:13

142:16 147:2

169:9,12

170:19 171:18

173:11 185:15

185:20 193:5

217:10 239:22

254:15 300:16

308:15 311:1

needs 9:19 16:3

18:17 23:16

31:1,10 59:14

72:20 79:9

100:10 145:8

151:18,20

262:21 276:7

279:3,4 300:3

negotiated

211:19

negotiating

212:17 214:13

neither 6:8 12:4

114:14 140:22

211:10 250:9

networks 138:3

neutral 140:5

141:4 155:22

241:3

never 11:20

35:9 70:7

101:5,6,7

161:3 205:5

251:17 260:5,5

290:22 299:11

new 32:9,20

72:9 161:16

198:16 245:19

303:2 310:13

news 120:8

nexus 147:4,6

198:13

NIST 222:19

non 300:15

non-arbitrary

227:22

non-citizens

215:15 217:9

non-intelligence

44:6

non-public 9:21

231:8

non-targeted

109:15

non-U.S 8:2

9:11 14:3 15:6

16:11 17:1

37:11 40:9,19

40:22 41:6

43:19 49:21

52:17,21 53:12

55:11,13 58:14

60:2,4,12,13

71:16 72:4

74:1 79:20

80:11 81:15

82:13 90:13

91:10,20 92:2

92:5 96:10

103:14 109:12

110:17 111:6

129:7 148:8

176:19 177:7

177:18,20

178:2 182:22

237:11 243:21

252:12 253:16

253:19 278:2,4

278:14 280:7

295:11

nonsensical

166:5

norm 216:13,17

normal 32:22

197:19 264:2

normally 32:13

33:18 87:5

norms 215:20

231:12

notarial 313:12

Notary 313:4,16

note 12:13

239:13 282:8

noted 8:17

238:20

notes 145:15

noting 126:7

notion 40:1

204:14 293:8

novel 21:22

158:5 204:19

226:11 227:3

244:17 269:4

269:12,13

Nowak 252:6

NSA 17:18 18:3

18:15 19:2,6

28:3 30:6

31:16 35:14

41:19 43:12,16

44:17 47:7

61:6 62:8

72:20 78:18,22

85:21 86:17

106:17 107:3

109:10 114:11

114:16 119:2

119:10 124:3

124:14,16

134:15 147:17

147:18 177:19

178:4 191:5

203:19 210:18

211:7,12,12

214:19 215:7

215:11 216:14

218:18 219:1

238:11 276:16

294:2

NSA's 45:1 79:7

122:3,7,20

123:14,20,22

124:3

number 11:19

15:21,21 34:15

48:17,21 51:5

52:3,3 54:8,15

54:18,21 77:19

93:18 103:10

103:13 117:9

219:13 270:10

270:15 272:5

272:19 273:20

292:14 293:5

numbers 9:4

10:8 25:11

26:1,10,11

48:18 52:6,11

52:12 71:6

219:14 221:20

numerous 100:4

NW 1:16 4:8

O

O 140:20

o'clock 113:5

Obama 214:1

214:16 223:22

253:22 254:1

291:7

Obama's 217:14

object 225:1

obligated

293:18

obligation 21:2

42:12 53:22

74:11 85:13

87:14 178:5,10

179:9 215:14

224:8 227:16

229:21 248:8

250:20 271:8

271:10 289:14

290:3

obligations

98:22 212:4,13

213:12 216:4

218:2 223:16

227:5,20

230:14 231:20

251:16 308:8

obliges 178:15

observations

126:11 277:21

observer 140:5
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

32

observers

277:17

obtain 29:17

67:18 115:16

122:21 136:1

obtained 7:19

69:22 70:9,10

70:19 115:5

122:12 141:7

142:1 146:16

171:14 175:20

180:13 181:16

obtaining 8:5

146:20

obtains 38:5

obviously 33:4

43:5 68:7 82:8

82:15 85:11

106:22 135:8

159:20 161:9

174:4 187:20

203:18 208:6

223:19 238:15

239:22 242:14

268:2 275:20

276:4,20,22

occasionally

99:16

occur 12:11

72:5

occurred 84:6

138:2 139:6

147:7

occurring

131:16

occurs 12:14

25:6 27:22

28:1,4 39:3

42:17 146:16

155:18 170:16

242:14

October 93:12

off-cycle 23:13

off-limits 32:21

offer 220:18

222:6 228:18

309:9 311:3,5

offered 222:3

office 2:17 11:10

42:19 64:18

87:15 88:6

officer 4:11

111:6 140:14

156:1

official 249:7

252:5 254:14

278:5,19

officials 6:12

85:13 159:12

oh 40:2 56:12

71:12 155:7

156:1 171:9

okay 23:17

29:20 39:1

47:18 50:22

51:21 53:4,21

54:12 57:16,21

60:3 62:21

65:1 78:8

79:16 82:20

85:1 92:10,21

93:19 96:5,13

97:4,9,9

142:22 154:12

156:17 157:15

160:17 177:13

179:18 186:2

187:3 193:16

201:15 202:5

204:8 247:15

250:13 251:21

281:21 295:7

308:12 309:4

old 181:12

older 137:20

once 22:14 23:1

23:3,15,16

28:5 29:15

30:21 37:15

42:13 60:3

74:10 141:22

146:4

one's 53:10

onerous 172:13

185:2

ones 46:13

76:16 280:14

ongoing 219:1

294:7

online 7:11

open 200:5

206:12 220:3

220:15 259:11

260:18 284:12

311:17

opened 161:15

opening 4:17

8:9 136:21

152:19 209:20

operate 79:4

175:2 177:5

183:1

operated 1:6

183:12

operates 20:17

183:7 200:17

operating 86:7

operation 45:17

operational

18:17 28:20

29:2 32:4

48:14 54:7

operative 51:2

224:7

opinio 263:2

opinion 75:2,18

76:3 77:7

93:13 94:8

116:3 134:13

140:8 163:5

234:11 268:15

288:6 293:4

opinions 20:12

21:10,10 75:13

76:7,14,15,19

77:2 78:4

206:10 287:17

287:20

opportunity

8:11 50:6

84:14 113:20

120:20 125:8

136:18 223:11

242:17

opposing 182:8

option 208:6

oral 239:8 252:9

order 4:16 6:4

31:20 34:22

53:20 67:14

70:21 81:7,12

93:17 95:17

123:6 136:14

145:2 151:16

179:9 180:20

188:12 206:5

221:1 229:16

237:3 284:22

299:21

orders 53:18

ordinary 175:2

262:22

organization

308:15

organizations

251:11 278:6

organize 31:13

organized 29:12

original 50:3

195:6

originally

183:21

ought 206:11

217:8

outcome 313:11

outlier 225:12

outnumbers

135:7

outset 149:12

164:9 238:3

outside 8:4,19

9:12,15 10:15

10:21 39:20

40:4 45:13

69:14 71:17,17

72:2 73:11

83:10,11 88:19

88:21 89:10,11

89:15,21 90:1

90:9,12,15

97:21 129:8,13

129:19 131:1

137:13 151:17

159:18 162:2

162:17 176:19

180:18 210:7

211:17 215:4

216:6 219:4

224:5,18,19

233:3 235:19

241:21 245:9

245:12 246:7

246:13,19,22

248:4,10

258:11 277:14

278:16 281:9

291:18 308:10

outweighs 135:7

over-collection

170:16

overall 22:14

276:2

overarching

53:20 72:7

overbroad

286:12 287:10

287:14

overbroadness

287:5

overhear 115:13
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

33

160:4

overheard 159:2

160:13

overhears

158:21

overlooked

166:14

overseas 15:6

52:17,22 53:12

55:11,13 60:4

60:13 73:21

89:3 91:8,15

91:21 92:5,10

103:9,14 126:3

126:9 128:10

128:14 130:2,6

130:12 131:8

131:15 132:1

137:5,22 138:1

147:7 183:22

184:3 206:22

272:22

overseeing

150:11

oversees 212:1

292:3

oversight 1:3

4:3 11:5,6 61:1

85:1,2,10 86:7

98:7,22 132:2

160:11 222:1

240:2,6 241:9

274:8,9,11

292:4,5,10,17

292:22 293:1,3

293:9,21 294:7

295:3 308:16

309:1 310:4

overview 8:13

10:3

P

p.m 312:21

page 96:18

Paltalk 191:8

panel 2:9 3:1,13

6:16,21 7:4 8:7

8:9 14:7 113:1

113:6,9 115:4

117:8 118:15

119:1,9 132:14

132:15 135:2

135:16 146:14

147:10,16

161:14 166:22

171:8 173:20

175:19 178:11

182:9 187:10

191:2,16

196:17 209:3,8

260:16 279:10

292:12 294:5,6

294:11

panelist 136:22

207:1

panelists 4:22

7:5 35:10

125:10 167:1

176:14 188:6

191:18 208:22

209:19 244:1

312:7

panels 6:11,19

152:14

paper 238:7,19

239:5,10,13,19

240:8 241:17

242:18 275:14

277:8 282:19

310:21

paradigmatic...

161:6

paragraph

252:8

parallel 118:2,6

118:13

parameters

109:1,22

parcel 280:17

pardon 116:19

parliament

220:10 239:15

241:7,16

257:18 276:11

parliamentary

257:22

parsing 38:6,11

part 10:22 22:7

22:12,17 27:9

36:6 57:21

64:15,19 69:2

77:12 107:8,9

112:12 135:1

138:13 143:5

145:6 150:10

161:10 192:12

203:15 205:4

211:11 267:10

270:1 273:12

280:16,17

297:9,19

311:16

parte 20:18

21:19,21 206:8

participate

260:17

participating

5:1

participation

69:17

particular 14:19

23:11 24:9

26:10,16 28:2

29:7 41:16

46:18 50:13

51:20 54:11,20

54:20 55:16

59:2 61:10

63:18,20 64:16

65:17 66:4

67:16 78:19

79:16 88:3

89:12 95:13

98:21 104:22

116:8 117:4

119:21 120:3,9

123:18 154:7

154:21 174:4

178:16 179:5

197:8 220:11

246:1 272:17

291:20 305:20

306:2,3 308:21

particularity

14:19 193:10

199:2

particularized

37:5 157:19

193:11 200:21

particularly

86:16 100:10

114:4,22

132:20 219:6

221:12,19

226:16 254:2

272:2 273:22

275:19 276:8

311:14

parties 132:5

249:15 313:10

partly 36:19

partner 3:15,22

209:11,18

238:4

partners 112:4

112:9 272:22

partnership

300:13

parts 162:13

176:11 208:14

263:15

party 20:20 21:1

106:18 112:4,8

180:21 212:7

215:4 234:14

264:19 307:4

party's 213:12

215:1

pass 108:12

243:2 307:2

passed 12:9

84:16 118:4

passing 108:6

229:2

Pat's 58:9

Patricia 2:5

4:15

PATRIOT 5:11

pause 223:8

pay 131:21

277:5 282:15

payments

153:14,14

PCLOB 5:8

66:18 136:1

218:6 221:6

284:18 301:13

PCLOB's 4:5

PCLOB.gov 7:9

312:13

Peace 305:1

pen 156:7,8,10

157:9

penalties 142:16

people 15:13

33:13 52:5

60:2,14 83:7

89:9 133:16

159:18,19

160:13 163:15

166:18 168:6

168:17 171:15

175:2,6 195:8

207:6 215:2

216:6,14,17

225:4 245:20

246:7,22 247:9

247:10 249:2

252:4 263:2,16

266:13 270:11
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

34

270:15 279:19

280:10 291:8

296:19 302:8

307:21 311:13

peoples 50:12

283:2

percent 36:13

39:19 40:2,3

40:21,22 43:9

93:16 168:21

perception

97:13 157:16

284:14

perfectly 217:22

period 37:1

44:18 47:9,11

47:14 93:22

94:20 95:21

103:7

periodic 11:13

74:12 84:1

214:6

periodically

42:12 64:7

periods 47:7

permanent 8:3

125:3 174:18

permissible

14:14 54:21

56:20 90:16

98:2 285:21

300:1

permissibly

175:21

permission

262:19

permit 7:6

89:14 107:19

122:13,20

231:13 260:8

permits 8:1

121:3 231:17

permitted 40:5

59:5 96:1

106:7 124:6

person 9:15

14:3,5,6 17:8

17:13 19:5,21

28:18 30:12,14

31:21 36:21

37:2,19 40:9

40:20,22 41:6

41:13,21,22

43:19 48:3

51:9 52:17,21

53:12,13 55:11

55:13 56:6

58:14 60:4,8,9

60:13 71:16,16

71:19,20,20

72:4 73:11,12

74:1,2 78:10

81:18,19 82:16

89:4,12,14

90:1,12,14,15

90:22,22 91:9

91:10,14,20,20

92:2,5,8,9

94:12 96:8,9

96:10,10 101:3

101:8,19

103:11,13,14

106:3,19,20,21

107:20 108:16

108:19 109:15

111:5,6 114:8

114:14,18

131:1 137:1

138:11 142:7

148:8 149:3

161:7 162:17

162:19 164:1

164:21 165:15

165:15,18,19

165:20,21,21

166:3 167:18

172:11,16,21

173:8 175:17

176:5 177:3,7

177:8,10,17,18

177:21 178:6

179:4,5 180:2

181:13,14

193:5 244:6

254:9 271:1

278:3,5 297:15

297:17 302:15

person's 40:4

51:12,17 55:4

92:2 109:12

297:18,22

personal 81:8

81:14 217:21

228:12 242:15

242:16 298:17

298:18

personally

150:22 179:3

254:4,5

personnel 86:5

persons 8:2 9:11

9:22 10:14,14

12:2,11,17,19

13:2 14:9,13

15:6,10 16:5

16:10,11,20

17:1,10 37:11

39:19 40:13

43:17,20 49:21

54:16,17 60:2

60:12 79:20,22

80:11,12,12

81:6,9,15

82:13,14 89:16

89:21 90:9

97:19 102:12

104:19 109:17

109:19,22

110:17 112:17

133:6,6 142:18

152:5 161:3

162:1 176:18

176:19 178:2

182:22 213:2

214:19 217:16

217:19 229:11

230:17 237:11

243:21 245:8

252:12 253:16

253:19 278:14

280:7,7 295:12

perspective 2:10

15:18 43:7

48:7 138:15

144:5 194:21

195:1 218:11

persuade 21:3

persuasive

176:1,2 268:13

pertain 94:5

pertains 237:16

295:18

pertinent

108:14

Peter 5:5

phenomenon

283:14

philosophy

124:12

phone 25:11

26:1,10,11

51:5 52:3,3,6

52:11 54:8,15

54:18,20 71:5

73:10,13,21

96:9 115:17

124:16 138:2,6

156:11 174:17

177:9 191:21

phonetic 140:3

phrase 26:7

106:19 122:16

212:19 215:1

270:2,5

phrases 147:20

physical 225:19

227:13 234:15

271:2

physically

128:10 138:1

296:13

pick 13:22

167:15 255:20

275:15 295:6

picked 133:13

170:1

picture 40:7

88:5 302:12

piece 46:18

170:9 189:19

pieces 41:20,22

46:21

pillaging 224:19

pioneers 303:4

piqued 148:20

Pitter 3:18

209:13 213:15

223:9,10

245:17 247:15

247:16 250:14

250:17 254:21

267:6,17 268:9

268:15 269:3

270:7 271:5

277:17 278:22

279:2 280:12

281:1,5,22

284:20 285:19

286:11,20

287:15 288:3,6

291:13 292:10

292:21 293:20

294:10,21

298:8,13,22

299:9

place 15:16

16:14 31:15

59:3 94:18

98:7 124:18

152:2 160:1
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

35

166:20 169:11

171:15 179:12

201:20 214:19

218:2 220:22

221:13 227:19

233:4,15

248:15 273:18

275:3 278:2

281:13 284:11

306:17

placed 128:13

211:11 237:10

places 210:5

222:2

Planck 3:20

209:16

plans 67:21

plate 199:17,19

199:21 200:3

play 205:11

please 4:17

63:22 311:6

312:16

pleased 113:9

pleasure 230:13

237:20

plenty 280:2

plot 169:2,7,19

plots 66:22

plotting 168:3,4

plus 232:7

point 10:13 22:2

22:16 30:11,20

34:14 42:10

44:5 46:14

47:4 48:13

49:12,19 60:2

68:18 69:10

72:8 80:7 82:5

85:5 88:14

89:7 97:13

99:20 102:11

103:17 110:10

110:15 112:12

115:10 121:17

124:9 129:1

132:13 138:20

142:5 144:17

146:14,19,21

147:1,9 148:4

153:22 154:1,2

154:6,9 157:6

157:21,22

165:8,12

166:11 183:9

183:11 192:1

195:4,14

207:13 214:15

216:13 221:7

227:5 239:18

244:14 255:4

258:2 262:5

274:1 277:8

284:5,7 289:1

303:9 305:5

306:14

pointed 140:20

225:11

pointing 180:18

180:22

points 8:15 10:3

27:12 30:9

85:7 88:6

110:5 117:4

125:14 170:4

251:3 289:15

311:7

Poland 225:9

police 257:1

303:18 304:5

policies 220:3

239:20 282:16

policy 3:14 5:18

7:2 24:5 28:16

28:16 31:9

65:14 103:5

209:9 215:19

217:12,15

229:8 232:4

236:20 237:18

245:21 252:10

254:17 266:14

266:22,22

269:7 289:5

political 117:18

119:20 132:3

157:12,17

211:1 223:17

233:21 267:8

286:14 303:7

Porter 3:15

209:11

portion 188:2

189:10,11

pose 7:3 167:16

199:6 232:10

253:10

posed 155:4

309:11

poses 282:14

position 6:9

126:21 135:11

140:6 152:20

190:10,14

193:3,14

211:16,18

212:17 214:3

224:1 229:19

237:18 244:13

247:17 249:1

252:3,16 267:7

278:15 283:5

303:3

positively

178:20

possessed

127:22

possesses 127:13

possession 31:6

34:22 37:16

192:7

possibility 45:15

possible 5:7

32:19 45:1

46:1 81:3 88:8

166:14 257:4

312:4

possibly 181:19

post 114:21

118:17 124:13

173:5 174:10

post-targeting

120:14

post-World

225:2

posted 7:9

312:13

pot 33:16

potential 103:1

156:11 261:17

285:4

potentially

33:11 87:16

89:3 94:2,11

132:13 153:10

156:13 203:16

208:19

power 29:7

116:6,7 125:22

126:6 127:7

128:1,6 131:17

141:13,13,21

141:21 149:2,4

149:4,5,9,10

173:22 183:1

183:14 195:2

204:2 207:17

207:18 208:8

215:2,7 224:13

234:13 244:15

244:20 245:3

245:13 285:5

285:11 287:21

296:8,11,12

297:16

powers 67:21

127:1 256:15

256:22

PPD 110:16

practicability

49:11

practical 136:11

262:9 280:19

281:8

practicality

170:14

practice 19:11

104:6 123:1,4

123:9 128:21

150:8 214:15

238:5

practices 125:16

239:15,20

242:8,9 260:22

276:13,16,17

277:18 278:10

280:9

pre 173:5

pre-FISA

150:18

precedent 15:8

precise 93:15

193:19

precisely 150:13

285:14 288:17

predate 150:4,6

186:21

predecessor

75:17 212:2,11

predecessors

128:5,13

predicate 25:5

25:18 79:3

prefer 37:8

202:9

preference

208:9

premise 87:13

149:22 297:9

premises 231:20
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

36

prepare 312:1

prepared 63:16

prerequisite

116:10

prescriptive

84:18

presence 243:10

present 4:12

21:21 154:22

242:18 293:12

presented 234:6

307:11

President 3:16

5:9 47:18

79:17 80:21

81:12 85:12,19

110:15 127:12

127:13,18

140:13,22

150:22 195:2

195:11,16

209:12 217:14

229:7 252:13

254:1

President's

10:22 24:4

125:22 127:1,9

131:16 172:8

172:14 202:13

203:19

presidential

126:6 217:14

229:8 237:13

presidents 127:6

presiding 4:11

press 86:13 88:5

presumably

82:9 170:6

283:7

presume 23:14

122:8

presumption

280:6

pretend 33:1

222:5

pretty 163:21

prevailing

234:11

prevent 174:16

236:20

prevented

256:10

previous 117:8

146:13 152:21

171:8 178:11

191:16 195:16

206:17 238:19

price 131:21

primary 132:17

143:8 151:1

208:17

principle 80:17

236:11,17

239:18 259:15

262:14,20

265:4 281:17

principles 109:3

220:19 221:9

279:22 289:5,6

304:22

prior 62:8 72:10

118:19 127:20

128:4,16

130:17 139:4

156:15 157:18

194:13,18

195:19 198:2

201:13 204:10

priorities 65:1,3

65:11

PRISM 25:20

26:13,17 31:17

37:10 47:8

48:4 56:10

57:18 63:3,7

70:7,8,12

78:11 93:9,22

101:12 109:15

172:22 187:7

privacy 1:3 4:3

8:20 13:2 16:4

17:21 27:4

47:17 93:2

94:2,5 114:20

121:7 123:5

131:12,22

185:18 190:9

190:13 198:12

210:19 211:5

215:15 216:10

217:6,20 218:1

225:16 226:4

227:10,14

228:12 229:4

229:21 232:13

233:1 234:19

235:8,15 236:2

236:4,7,19

238:5 239:21

242:15 247:20

248:10,17

253:8 254:12

254:17 255:16

259:3 271:17

276:20,21

278:13 280:16

282:6,8 289:22

295:13,16,20

295:20 296:17

296:22 297:6

298:1,3,10,15

299:2,12,15,17

300:19 302:1,2

302:6 304:7

305:15

private 6:22

58:5 155:15

156:12,13

240:22 254:3

297:18 302:12

privilege 86:13

87:1,6 88:10

88:12 118:14

privileged 87:17

87:22 88:9,21

pro 99:2,6,12,18

probable 116:5

118:6 124:7

141:11,19

150:20 155:19

156:9 157:19

160:8 172:10

172:16 173:1

173:16,17,19

174:3,4 180:8

193:6

probably 24:2

24:22 66:5

74:8 87:11,19

116:17 160:2

171:20,21

185:19 200:15

208:10 252:2

280:2,3 286:16

problem 36:20

147:8 181:3,4

188:5 226:2

247:12 252:10

263:13 267:10

276:3 292:12

295:3

problematic

294:20

problems

172:20

procedural

131:2 171:10

185:22

procedure 90:4

140:12 176:3

176:13 199:21

203:1

procedures 9:9

9:10,18 12:7

15:16 16:13,21

17:3,6,6,9,20

18:3,5,13,20

19:13,22 21:6

21:9,13 22:9

22:12,20 23:7

26:21 27:1

30:17,17 32:3

43:1 45:3,21

79:5,7 80:22

86:9,17 87:12

88:15 94:17,21

95:1,14,15

98:11,12

100:17 101:4,5

104:16 105:18

107:10 109:6

109:16,19,21

111:20 112:2,3

112:9,13,16

117:14 119:11

119:13 122:4,7

122:10,20

123:14 124:3

135:20 148:17

174:7,12

178:21 180:4,6

203:14 205:9

205:10 281:13

293:22 295:2

proceed 4:21,21

209:20

proceeding 21:1

204:16 297:19

proceedings 4:1

21:19 204:13

237:1 313:6,8

proceeds 236:8

process 11:3

20:8 22:6,8,12

22:18 25:14

32:12 33:5

35:2 45:7 54:9

62:3,15 63:12

70:16,21 72:17

72:18 78:15
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

37

100:2 103:18

103:22 106:10

107:3 136:18

167:19 174:4

180:3 206:2,16

222:9 240:2,19

292:13 294:7

304:2,9 311:12

processes

274:13

processing 46:2

231:10

produce 9:5

104:19

produces 86:1

professionals

65:21

Professor 3:4,8

113:10,13

125:6 137:3

139:14 142:19

145:12,13

147:1 149:15

152:17 156:2

176:4 181:6

182:15 193:17

200:7 202:6

215:10 230:11

261:14

profound 123:4

program 1:6

3:10 4:4 5:11

5:12,13,16,19

7:8 10:12 14:2

22:14,16 36:15

36:16 37:6

49:14,16,16,22

50:3 57:18

62:7,12,18

63:18,20 64:2

64:7,13,16

65:20,20 66:9

66:11,11 67:8

67:11,16,17

68:3,13,16,18

69:1,1,5,9,11

69:12,13 70:6

70:15 71:7

74:20 75:17

76:5 79:2 83:2

97:6 100:10

113:16 157:8

170:11 187:12

190:16,18

191:4,13

216:15 243:3

243:19 274:11

274:18 293:21

programmatic

14:21

programs 5:10

6:14 63:12,14

64:15 66:8

67:18 69:3,7

83:4,7,16,18

83:20 84:1,5

84:14 85:16

99:1,21 118:4

170:7,8,13

211:13 230:15

232:3,17

233:13 235:1

252:19 269:10

272:1 275:12

277:2 308:17

prohibit 9:22

265:7

prohibited

264:20

prohibition 91:3

91:4

prohibits 90:8

123:13 264:16

proliferation

60:19 285:6

proliferator

53:13

prominent

225:10

prominently

234:21

promise 265:16

265:17

promote 6:4

235:22 300:6,8

prompt 23:7

prong 296:3

proof 114:7,10

176:16 177:19

proper 86:6

169:10

properly 135:9

proportion

190:21

proportional

228:1

proportionality

236:11,17

259:15

proportionate

279:22

proposed

128:20 213:1

272:4

proposition

196:13 197:22

200:13

prosecution

115:10,22

117:22 139:18

141:8 145:4,21

146:1,7 201:13

205:16

prosecutions

144:4 181:2

prosecutor

156:19

protect 13:2

17:10,21 34:22

230:3,3 232:22

240:15 281:14

285:3

protected 80:12

206:15 242:16

protecting 8:20

103:6 228:3

protection 60:11

160:12 184:13

230:18 232:20

233:7 236:2

258:3 264:15

276:14,20

304:20 305:7

protections 80:9

80:10 82:15

110:17 174:14

185:18 186:1

221:13 243:4

273:21 275:2

278:2,5,13

282:4 300:19

protective

230:19 232:21

233:9

protects 231:4

protocol 191:9

provide 5:8 81:3

111:22 132:2

136:1 226:18

237:11,20

239:4 242:4

273:15 308:22

309:10

provided 26:2

54:2 65:13

88:7 160:12

308:15

provider 51:16

52:2 53:21

137:11 238:14

providers 7:16

25:16 26:8

69:18,19

238:12 239:2

provides 81:8

211:3 272:21

providing 52:1

103:5

provision 88:15

89:21 90:8

106:15 136:2

215:13 217:3

provisions 69:4

112:3

provocative

82:22

PRTT 157:6

pry 297:5

public 1:5,15

5:9,17 7:10

57:22 70:14

75:3 77:12,14

77:21 78:3,6

79:8 83:16

84:2,9 87:10

87:10 93:7,10

94:8 95:2,15

106:9 112:7

113:3 135:6

154:17 221:17

227:1 228:13

231:12 243:18

258:9 279:12

293:16 294:16

311:16 312:8

312:12 313:4

313:16

publicly 32:2

93:11 112:3

publish 239:12

297:18

published 238:6

pull 192:14

280:9

pulses 303:17

purely 122:5,11

149:7 184:4,8

194:7

purge 45:2,6,7

45:18,18 82:1
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

38

101:19 102:14

102:19

purged 43:22

44:16 72:20

73:4 82:4

94:15 95:6

96:2 102:3,5

purging 44:1,17

45:16 58:9

72:18 202:1

purports 229:9

purpose 5:17

10:10 59:16

61:1,8 89:12

90:21 92:5

111:8,10 133:9

134:10 143:4,4

143:7,8,8,15

145:20 146:1,7

146:9,10 148:7

148:10,15,20

149:8 151:1

159:10,15,15

179:22,22

180:14 181:1,9

181:9 184:8

186:13,15

190:4 193:20

204:3 208:17

208:18 212:22

225:1 228:3

274:16 275:13

279:3 281:19

281:20 286:3,5

purposes 8:5

13:6 18:1

27:19 38:6,17

39:7,16 40:8

44:4 66:9,10

128:2,8 129:21

130:3 139:2,15

139:17 143:22

144:12 145:19

146:3 147:3

148:3 150:12

176:9,10

181:11 184:17

199:10 203:18

300:10

pursuant 1:6

7:16 12:16

26:3 30:22

32:12 70:15

131:16 193:1

221:18 223:6

pursue 33:15

45:5 61:9

66:14 149:19

push 149:1

293:7

pushing 301:1,2

put 62:1 94:19

115:16 140:5

192:3 219:14

269:20 274:8

288:13 305:19

309:21,22

puts 38:5

putting 73:19

188:20 278:1

puzzled 169:17

Q

qualifies 55:12

quality 68:7

quantities 134:7

quarterly 62:11

queried 27:17

45:16 196:14

198:1

queries 30:12,14

30:19 50:10

query 27:18

28:17 29:18

31:16,22 32:13

35:2 39:9,10

39:15 48:21

49:3 56:21

79:9 86:9

193:4 199:20

querying 28:6

31:3,9,12,15

39:8 47:21

57:5 79:1

196:11 197:13

200:2

question 14:7

16:8,15 26:22

31:8 37:21

40:7 41:19

45:19 49:5,10

49:11 62:2

63:2,21 64:4

66:22 67:3,6

67:13 77:11

79:17 83:1,6

92:14 93:3

97:12 98:4

100:17,18

109:14 111:15

117:8 127:12

137:8,16

143:10 150:16

154:13 155:4

157:14 158:9

158:19,20

159:22 160:20

163:19 164:16

168:21,22

169:9,15

172:12,19

174:20 175:15

177:1,12

179:17 182:18

186:3 187:17

187:19 189:22

190:8 191:17

193:16,19

196:1,9 198:19

200:5,16 201:4

204:9 206:17

207:13 219:10

228:7,9 243:22

249:4 250:13

251:21 252:8

252:21 254:20

255:6,19 258:7

259:9 261:5

263:19 264:7

266:1 267:12

268:13,20

269:13,17

270:22 271:3

273:2 274:10

278:12 284:19

288:22 291:13

292:7 295:8

296:3 298:7,9

300:19 301:5

303:8,10

305:19 308:13

309:8,11

questioned

241:12

questioning

35:8 93:20

163:14 209:21

220:10

questions 7:3,4

8:16 13:19

19:14 36:8

53:1 58:2,4,9

61:3 63:17

71:12 97:10

100:15 135:2

135:11,13,14

135:17 136:17

136:22 160:16

161:14,16

175:18 192:21

207:11 208:21

226:11 242:19

248:20 267:5

277:16 291:14

303:2,5,22

310:13,13

quick 73:2 85:9

105:15 111:1

195:22 204:9

204:14 207:13

306:13 307:16

quickly 82:21

147:10 191:1

201:7 251:22

281:4 282:2

308:13,13,19

quirk 89:8

quite 30:3 99:5

154:4 159:14

203:22 221:14

222:14

quorum 4:13

quote 43:22

106:4 211:3,6

212:22 213:10

214:8 216:9

228:8

quoting 140:2

148:12 160:21

R

Rachel 2:4 3:9

4:13 56:19

57:2 113:14

160:20 164:8

196:10 206:18

radio 195:5,6,10

195:12,13

raise 23:11

56:12 114:1

119:16 138:8

153:9,16

183:11 200:4

278:21 284:22

raised 19:14

27:12 117:22

135:17 171:22

200:19 284:20

raises 152:20

197:9
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

39

raising 136:9

165:20 278:4

Raj 24:22 28:1

35:13 36:19

43:7 60:5

61:19 102:6

108:22

Rajesh 2:15

ran 62:22

random 80:20

range 88:7

117:19

RAS 48:18

rate 43:9

ratified 211:2

304:5

rationale 54:13

59:19 69:2

150:7,9

re-articulated

211:20

reach 94:20

275:15

reached 272:18

276:3

reaching 226:8

reaction 256:8

read 71:1 92:16

151:7 182:17

188:1 285:1

reader 200:3

readers 199:18

199:19

ready 13:18

113:8 284:3

reaffirm 74:11

275:4

reaffirmance

249:18

reaffirmed

214:15 244:12

248:22

real 51:18 73:2

85:8 90:21

105:15 144:19

219:12 278:13

282:14,22,22

reality 33:8

realize 36:1

116:20

realized 101:7

really 27:8

28:10 36:10

45:17 52:5,6

60:5,7,11 62:2

63:21 67:13

68:1,2,10

69:10 91:8

158:3 161:3

169:2 175:18

177:18 182:4

185:17 191:17

194:15,16

196:3 206:21

214:14 224:20

228:13 242:22

261:5 265:9

275:14 277:6

278:21 284:7

289:3 296:3,9

299:22 300:22

305:13

realm 37:14

88:19

reason 10:9 27:1

44:19 47:6,10

51:9 59:1,7,9

60:15 80:15

88:16 94:1

143:14 171:22

178:3 183:11

237:12 256:10

258:17 296:4

302:5

reasonable

15:17 16:9,12

16:21 17:3,22

18:16 40:18

48:18 121:6

140:7,17

151:20 173:7

185:15 190:8

190:12 227:9

236:20

reasonableness

16:19 121:14

130:9,10 137:7

143:11,13

reasonably 9:11

31:18 37:11

39:20 40:10,20

41:6 58:14

71:17 79:10,12

89:9,13 131:1

136:6 148:11

162:1

reasoning

249:17

reasons 30:16

106:5 121:22

129:5 134:18

172:13 211:9

280:19

reassessed 240:1

reauthorization

100:1

rebuild 222:12

recall 48:17

received 70:17

70:20 86:6

receives 38:14

receiving 4:20

312:18

recipient 70:16

recipients

235:13

recite 102:8

recited 282:3

recognize 226:3

227:9 230:4

233:3,13 236:9

236:17 248:22

267:9,13

268:18 292:15

309:15

recognized

66:18 151:9

154:13 210:20

229:8 241:7

299:18,19

recognizes 95:7

291:8 310:22

recognizing

47:14 88:20

recommend

68:11 221:22

272:13 278:1

283:16

recommendat...

172:15 203:21

recommendat...

35:4 274:7,21

277:22 280:3

284:17 301:14

recommended

173:2 274:6

reconsider

76:12

record 78:4,6

84:2 99:4

113:7 125:3

174:18 209:5

311:16 313:8

recorded 7:8

313:7

recording

124:15 174:17

235:9

records 153:13

205:17

redacted 75:18

76:16

reevaluate 84:1

refer 38:9 54:7

115:21 234:5

reference 6:5

179:6

referred 26:5

134:13 178:11

187:4

referring 41:5

187:4,5 207:18

208:10

refers 26:6 67:2

102:2 103:18

161:3

reflect 99:4

reflected 132:17

133:3 241:17

reflects 137:17

reforming

206:18

refrain 230:1

regain 237:4

regard 79:7

80:5 114:3,9

116:4 147:11

154:22 155:18

176:17 177:2

205:11 243:3

251:1 272:3

274:14,18

regarding 1:5

15:2 114:7,10

250:19 271:15

292:22 293:2

regardless

217:18 233:14

237:15

regards 271:17

regime 62:20

regimes 238:8

263:9 264:4

regional 238:17

239:2 242:4

regions 71:3

register 4:10

156:7,8,10

157:9

regular 20:18
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

40

21:1,14 29:5

61:13 294:8

regulate 126:15

165:11

regulated

133:14,17

regulations.gov

7:11

rein 199:3

reined 279:11

reinforcing

218:13

Reingold 5:4

reining 287:4

reinserted 36:20

reiterate 244:12

reject 166:6

259:12

rejoining 209:7

relate 242:9

288:3

related 51:16

179:5 239:21

relates 221:16

222:1 285:2,12

relating 5:19

102:12 147:14

152:5

relation 249:2

Relations

231:22

relatively 75:19

276:17

released 11:16

147:18 191:6

220:19 223:21

relevance

169:22

relevant 10:9

42:7 46:13

65:7 108:8

143:17 146:10

158:16,16

165:8 200:11

235:5 242:14

reliable 256:2

relied 130:6

307:18 308:1

relying 24:8

160:3 196:6,18

remain 6:7

13:11 85:3

262:18 304:13

311:17

remaining 16:8

280:21

remains 230:8

remarks 63:16

113:18,22

114:1 116:21

125:11 152:19

230:22 266:16

272:8

remediate

218:20

remember

100:4 125:19

204:10 249:6

284:3,5

remind 125:9,13

reminder 301:7

remote 154:16

remotely 226:10

227:15

removed 44:17

Renaissance

1:15

render 15:17

renewed 238:18

repeat 10:11

298:8

repeated 10:5

repeatedly

126:7

repeating 40:12

74:9 235:14

report 5:9,12

6:15 152:22

174:10 211:21

214:6 221:7

239:14 272:12

276:12 282:3

307:11

reported 1:22

72:14,15 73:17

124:13

reporter 116:17

reporting 11:11

65:2 222:17

294:8

reports 6:2

11:14 62:11,13

65:3,13 72:15

84:19 86:13

representatives

7:1

request 212:20

241:5 311:11

requested

306:13

requests 221:18

272:15

require 10:17

45:21 109:14

122:10 131:5,7

140:12 146:21

149:5 185:22

240:12 263:1

306:19

required 12:7

22:19 28:11

44:16 45:2

47:19,19 49:3

84:11 103:7

126:20 130:1,5

139:20 178:19

184:15 242:13

requirement

15:20 16:1,19

28:20 48:2

58:13,18 80:14

109:20 121:9

129:18 130:11

134:4,10 137:6

142:6 143:6

148:13 150:2

150:16 151:7

151:13 152:8

154:2,11 162:7

162:7 184:16

185:15 204:3

205:15 208:2

212:12 243:13

243:14 281:6,8

requirements

11:22 16:17

44:21 140:15

142:17 151:5

178:19 253:5

274:19 294:1,8

requires 22:7

52:16 84:19

126:19 131:20

148:7 224:21

240:5

requiring 35:1

research 241:18

275:14

Researcher 3:18

209:14

reside 217:19

residence 133:8

233:15

resident 8:3

resides 237:17

resolution 236:6

241:6,12,17

247:19 276:11

resolved 276:7

resources 64:20

respect 16:19

19:4 37:21

61:19 65:20

67:16 81:1,1

84:19 86:4

94:3 98:12,22

105:18,21

111:5 144:19

145:7 190:14

194:9 211:14

212:8 213:21

215:14 217:17

224:9 226:4

229:4,21 232:4

234:8 243:13

248:3,6,9,17

250:9 251:12

258:7 259:9

268:22 271:11

271:18 285:11

285:16 287:20

289:21 298:15

298:16 303:10

respected

185:16

respectful

217:11

respecting

247:20

respective

237:13

respond 132:13

142:20 149:16

305:3

responded

140:18 307:12

responding

225:5

response 8:16

64:3,4 83:14

99:5 102:16

111:15 154:12

238:11 284:8

responses 7:6

187:14

responsibilities

244:9

responsibility

6:13 291:1

rest 76:10
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

41

restore 208:14

restraint 187:17

restricting

194:16 242:12

restriction

133:8,12,15

162:9 194:4

195:15

restrictions

133:3,18

187:16 194:17

210:6 211:12

253:18

restricts 111:5

result 31:22

33:10 70:13

218:18 228:14

resulting 231:18

results 134:2

163:12 236:13

263:10

resume 113:5

209:3

retain 122:14

retained 17:20

44:4 81:10

93:21 119:1

120:5 135:21

146:4

retains 152:7

195:2

retention 9:20

17:7,17,19

47:6,9,11,14

79:21 81:4

94:19 95:21

103:21 104:17

116:12 117:6

117:21 118:21

120:15 201:2

229:9 253:19

return 31:18

79:10 113:12

153:21 171:10

reunification

263:14

reveal 153:14

155:13 156:11

revealed 240:8

revealing 13:11

revelations

226:21 238:16

247:18 269:6

272:1 276:6

286:21

reverse 40:15

89:2,10 90:4,6

90:10 91:1,3,6

91:17 92:11

97:19 123:14

review 9:8 11:7

15:13 22:12

23:13 31:1,5,7

31:11 61:19

68:19 72:7

74:2,4,5 78:14

81:20 83:21

103:19 116:3

124:17 135:1

141:6,14

156:16,20

157:19 172:8

172:14 192:14

200:20 201:12

202:21,22

203:1,9,20

205:8,9 228:8

242:14 294:16

312:12

reviewed 42:17

42:18 43:2,7

47:5 59:20

61:11 76:18,19

77:2 78:15

116:22 117:1

294:12

reviewing 75:12

76:14 101:17

reviews 18:14

22:4 62:9

68:22 310:5

revised 95:1

revising 206:19

revisit 42:12

rewind 124:16

right 18:7 32:10

38:8 39:14,17

53:13 55:1,3

57:9,10 58:21

61:17 73:5

75:3 81:16,17

91:12,22 96:11

100:18 101:2

101:13 102:15

110:2 112:18

112:22 114:20

117:3 137:20

138:3 142:13

143:4,20 144:6

146:17 149:3

157:8 161:9

163:1,22 164:7

170:1 180:1

181:9 183:5

184:15 189:19

192:16 194:5

196:16 203:12

206:21 207:20

210:19 217:6

225:16 226:4

227:14 229:4

236:7 246:6

247:20 248:17

249:19 251:3

254:11 263:3

266:5 268:2,13

270:21 280:15

280:16 281:2

282:1 283:19

287:6 289:22

297:4,22 299:2

299:4,17,17

304:10 305:22

306:5 307:17

311:4

rightly 185:20

rights 3:19 8:20

10:15 15:7,14

180:19 207:4

209:15 210:17

210:22 211:1

211:22 212:8

213:9,16,16,19

214:7,22 215:5

215:15,19

217:8 223:17

224:10 225:4

226:12,17

227:6,20

229:21 231:1

232:14 233:3

233:14,17,20

233:22 234:1

234:19 235:8

235:10,15,22

236:2,19 237:5

237:9 244:22

246:16,17

248:1,3,9

249:21 250:4,6

250:18,21,22

251:4,8,10

252:11 253:8

256:8 258:3

259:1,2,3,4

262:4 267:9

268:9 271:10

271:12,16,19

286:14 290:5

290:11,13,18

307:8 308:5,8

ripe 237:8

rise 184:22

risk 95:19

253:15 282:14

risks 258:15

282:8

road 300:1

roamer 73:7

roamings 72:1

robbery 186:15

Robert 2:17

robust 6:4 84:3

184:13 185:5

202:17,20

309:17,19

robustly 8:20

role 106:1 115:1

127:9 205:11

237:4

rolls 99:5

Romania 109:14

room 154:20

219:2,4 280:2

287:4

Roosevelt

212:21 247:12

Rosetta 76:2

rough 93:14

round 50:6 93:4

93:20 97:10

100:14 142:21

175:14 283:22

288:10,10

290:10 306:13

rounds 7:4

route 228:22

routed 144:13

rubber 299:22

rule 40:21 41:1

96:2 100:19

101:10,13,16

109:18 231:16

237:5

ruled 139:19

rules 5:20 12:21

17:17 54:1

56:15 81:14

101:5 102:11

104:22 105:2,4
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

42

105:6 107:18

112:20 229:9

259:12 309:14

rulings 205:19

290:17

Rumanian

109:15

run 225:8

runs 35:3

rushing 228:16

228:17

Russia 304:1

S

s 252:7

sabotage 285:5

sacrifice 228:12

safe 220:11

300:11

safeguards

160:1 237:14

275:22 284:11

safer 228:10

238:13 283:9

safety 228:11

Sara 252:6

satisfied 212:14

satisfy 173:2

save 175:13

saw 253:3 293:2

saying 25:9

32:10 37:2

53:4 56:18

64:10 70:6

76:7 145:14

148:22 164:8

167:22 171:22

176:7 191:3

197:10 199:11

217:4,7,10

262:19 265:16

265:17 286:6

287:22 294:17

says 53:21 89:8

91:11 111:4

156:1 161:2,20

165:2 212:7

224:8 230:7

247:4 258:9

285:10 290:16

305:11

scale 121:3

160:9 187:6,12

188:4 189:3

232:2 270:10

scan 147:20

148:1 189:21

scanned 192:13

scanning 189:1

192:16 197:8

scans 189:11

scenario 247:2

schedule 311:20

scheme 145:2

165:14 183:16

Schmoe 287:21

scholar 225:10

scholarly 118:12

scholars 210:17

school 3:5

113:11 302:14

scientific 240:16

scope 9:6 173:21

203:8 212:7

232:14 236:1

244:8

score 42:1

screed 221:5

scrutinizes

11:18

sea 158:2,9

seal 313:12

search 21:20

27:19,22 28:3

28:7,11 37:3

37:17 38:2,7

38:18,19 39:1

39:3,4,9,13,15

43:18 48:4

115:6 124:4

130:1,2,6

140:7 146:16

146:21 147:6

148:3 171:17

172:10 190:4

193:4 197:20

201:2 206:7

searched 115:11

198:11

searches 36:22

37:18 50:9

79:6 115:3

123:16,16

130:12 175:18

177:14 179:18

180:11 184:5,8

184:13 185:9

185:11 194:13

searching 38:20

78:10 137:22

174:14 175:17

second 6:16

10:13 26:4

29:19 39:9

48:13 58:22

74:18 106:18

110:14 112:4,8

113:5,9 114:7

114:21 122:17

126:4 129:1,16

130:4 133:9

134:21 145:17

188:21 203:13

222:1 250:13

251:21 273:12

278:8 305:5

secondary 37:16

Secondly 31:14

232:16 256:21

310:10

seconds 124:8

280:21

secrecy 84:9

secret 77:7

135:9 292:11

293:6

secretly 240:19

section 1:7 2:10

5:10,15 7:17

8:12,14,17,21

10:3,5,11,20

11:8,18,22

12:5,9,21 13:8

13:10 25:4,8

37:9 48:20

56:8 65:6,14

66:9 92:18

100:1 111:4

112:15 117:13

118:11 119:11

121:1 123:13

123:21 124:10

124:11 125:16

125:19 126:12

126:18 128:4

128:12 129:4

130:18,21

131:6,11

132:22 133:3

135:4,6 141:17

151:4,7,8

157:7,8 158:22

170:7,7 202:10

202:12 203:14

207:22 219:3,4

239:6 240:4

258:8 273:8

292:20

sections 177:4

208:5,7

sector 6:22

secure 238:17

security 2:15,20

3:10,18 35:18

93:1 113:16

119:20 139:19

139:20 140:16

141:2 142:7

198:6,7 209:14

210:11,12

218:10 219:10

228:4 230:6

232:18,21

236:18,20

240:12,17

241:20 242:5

242:12 253:11

253:14,15

254:14 255:17

272:11,16

273:9 275:20

277:12 286:2

287:9 300:2,9

300:15

see 27:6 35:5

36:15 45:10

48:5 54:4

56:13,14 62:21

65:12 74:2

87:2 118:1

154:22 155:7,9

162:4,5 172:9

173:5 178:5

198:5 201:6

204:15 252:10

256:6 266:5

271:20 277:2

291:21 295:1

303:20

seeing 220:2,9

seek 28:16 140:7

241:3

seeking 20:10

seen 93:6 236:5

254:5 279:13

segregated 34:4

95:19

segue 145:12

seize 12:18

seized 198:10
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

43

seizure 190:3

197:20

selected 155:2

selection 26:13

147:19

selective 50:2

selector 10:9

24:21 28:2

50:13,18 51:2

51:4,13,14,22

51:22 52:4

53:7,8,10 54:6

54:11 55:8,11

55:17 56:1

59:2 61:15

71:8 78:10

80:15 100:21

173:7 294:19

selector-based

25:9 26:9

selectors 9:4

10:7 23:20

25:11 26:1,12

26:13 36:21

37:3 47:21

56:10 57:12,17

63:8 71:5

123:17 135:15

161:15 163:3

189:6 295:2

self-defense

262:21

self-executing

236:21 306:15

self-interest

277:1

self-restrain

286:7

semiannual

62:12 72:15

senate 251:6,18

251:20 264:19

290:21,22

291:4

send 198:8

200:9

sender 229:3

Senior 3:18

209:14

sense 18:19

20:18 38:4

46:2 197:3

224:20 253:2

254:16 270:8

281:22 289:13

291:15 299:12

310:1

sensible 131:11

sent 181:15

separate 58:17

61:14 63:10

89:20 111:19

119:10 152:22

163:1 193:7

separated

257:16

separating

221:10

separation

256:22,22

257:3,11

sequitur 300:15

series 64:1

200:18

serious 232:10

232:13 257:5,6

289:7

seriousness

75:10

serve 204:17,17

served 210:8

252:15

servers 231:10

303:16

service 7:15

25:15 26:8

69:18,18 168:3

238:12 239:2

set 8:14 18:20

34:16 71:12

84:8 95:14

113:17 119:10

192:20 222:11

250:6 260:16

288:20 309:14

sets 72:17

220:18

setting 60:22

93:10 113:3

266:22 295:12

severe 136:13

severely 115:1

sexual 302:3

shadows 154:20

shaking 101:19

sham 145:1

shape 66:20

share 5:2 112:21

136:14 176:22

218:19 221:17

273:7,13,14

293:18

shared 112:8

136:5 291:3

310:19

sharing 112:4

239:1 242:1

276:8 283:11

Sharon 5:4

shed 135:3,12

sheer 65:9

sheet 61:7,7,14

shift 50:8,20

63:9 86:11

short 113:4

172:3 173:1

shorter 93:21

94:19 95:21

shorthand

25:21 26:5

41:5

show 164:19

showed 277:11

showing 198:21

showings 149:6

shown 275:8

shows 73:12

side 20:20 21:2

29:9 121:19

138:12 188:21

243:17 257:10

Sieber 3:20

209:15 215:10

230:10,11,12

254:21 255:5

255:14,18,21

260:8 261:14

262:18 266:3

301:16

SIGAD 191:5,5

signals 81:2

195:12 217:15

significance

137:15 143:15

185:12

significant

21:21 69:13

134:7,10

138:18 170:16

170:17 208:18

219:1,16,17

272:2 273:3

significantly

178:22

silence 194:2,21

silent 176:21

177:1 193:18

193:21 276:18

silos 220:5,14

similar 18:18

48:2 239:11

257:20

similarities

238:7

Similarly 223:5

Simone 5:6

simply 100:2

111:21 119:4

217:2 220:8

225:21 234:5

single 61:16

74:2 246:4

253:9

site 120:8

sitting 277:21

situated 229:6

situation 24:14

75:22 115:19

138:6 142:10

156:4 168:5

199:6,6 226:5

228:15 310:12

situations

150:19 234:17

247:6

six 98:6

sixty-four

211:15

skepticism

260:21 261:1,9

skipped 58:21

Skype 191:8

slice 68:8

slide 39:22

slides 191:6

slightly 18:17

278:11

slip 57:4

slippage 208:20

slow 116:14

slowing 116:17

small 48:20

131:21 190:21

254:8

smaller 270:15

Smith 108:5,7

Smith's 108:12

Snowden

226:21 238:10

238:15 269:6
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

44

276:6

so-called 123:15

173:6 210:19

242:4

social 299:21

societal 219:18

societies 237:6

society 157:13

175:2 299:20

soil 142:8

solely 69:12

174:13

Solicitor 167:6

solution 181:4

233:16 237:3,9

solutions 172:3

218:19 220:18

221:5 222:3,11

solve 247:13

somebody 80:7

114:8 161:6

167:22 171:5

177:3 302:4,12

someone's 12:18

226:6,8

somewhat 89:7

89:8 274:17

279:11 309:16

soon 239:12

Sooner 306:3

sorry 40:11

48:11 57:9

93:3 116:19

141:12 155:3

191:14 192:9

202:19 250:15

269:15

sort 11:3 24:8

24:10,10 32:21

34:10 54:10

64:11 72:7

76:1 80:17

84:22 133:20

138:7 139:9

143:5 144:13

144:15 148:20

162:4,6 163:12

166:10,12

170:4 181:9

185:5,17,22

193:5 194:6,14

199:3 202:22

203:9 205:15

207:21 243:12

244:7,17

264:10 281:14

296:1 299:12

299:13

sorts 81:13

171:9

sounds 299:11

source 65:4

198:15 250:18

sources 13:14

206:14 230:16

268:10

sovereign 231:4

262:3 264:15

264:22 304:18

sovereignty

231:7,14,18

261:21 262:1

265:5 305:8

space 154:17

298:17,18

Spain 239:11

spatial 234:18

speak 44:11

72:22 78:18

88:3 106:16

126:4 138:12

149:18 251:9

261:11 264:7

speakers 6:5,9

312:3

speaking 15:1

39:5 63:15

107:17 115:12

144:14 163:12

speaks 273:19

special 16:3

32:9 234:18

257:17

specific 8:5

13:10 14:22

25:22 47:12

61:4 66:14,15

71:5 81:8

88:15 122:9

137:1 141:15

191:16 216:17

231:1 235:21

252:17 253:4

278:9 294:16

294:19

specifically

24:16 80:4

100:17 107:12

117:13 229:13

239:5 266:9

291:22

specificity

194:22

specifics 88:18

95:11

spectrum

153:19

speech 277:10

spend 85:16,16

215:17

spending 84:21

113:1

spent 36:1 98:6

sphere 184:19

spirit 132:21

split 243:12

263:4

spoke 147:10

203:20 308:15

sponsored

247:19

spot 33:21 62:7

spy 265:16

spying 215:17

264:20 265:8

square 191:10

stab 50:22

244:10

staff 5:4 312:3

staffs 99:13

stage 8:14 37:1

87:20 118:18

146:11

stages 103:22

146:11 188:22

stake 27:5

240:17

stakes 124:21

stance 224:15

stand 264:4

standard 72:12

72:20 79:9

86:8 105:17

137:7 180:13

180:14 199:21

204:1 206:19

206:19 207:17

208:4 280:6

281:15 305:21

306:6,10,11

standards 18:11

21:14 25:17

31:15 136:12

222:18,20

223:3 278:17

standing 185:21

standpoint

228:20

start 13:22 51:2

54:11 64:9,10

113:18 144:4,6

209:22 223:17

230:21 243:6

started 98:19

289:1

starting 118:1

149:22 155:5

198:5

state 129:10

181:3 210:9

212:7 215:4

224:16 231:6,9

232:20,22

233:2 234:7,14

252:16 261:20

264:9 313:5

state's 225:22

227:13 230:19

241:13 248:2

262:3

stated 146:3

187:11

statement 8:9

13:21 140:19

152:22 209:20

213:8 222:22

223:12 264:14

271:22 304:10

308:14 309:1

statements 70:5

71:2 93:7

136:21 153:13

159:11 213:19

216:22 222:14

250:7 251:11

states 8:4,19

9:12,15 10:15

10:21 29:8

39:21 40:4

67:9,11 71:18

71:20 72:3

73:11 86:20

89:5,10,11,13

89:15,17,22

90:2,13,15

91:10 97:17,21

97:21 103:10

104:18 114:19

115:13 128:3

129:9,13,20,22
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

45

130:14,22

131:2 133:7

137:10,12,13

138:7 140:14

147:6 151:17

159:18,19

162:2,18

176:20 180:19

182:3 210:7

211:15,18

212:5,5,15,16

212:18 213:4

213:20 214:9

215:8 216:5,6

216:8 217:7,15

224:8 229:6

230:17 231:5

231:14 232:2,6

232:18 235:17

239:16,20

241:8,10

243:20 245:6,9

245:12,14

246:3,11 248:5

248:10,12

250:2,8 251:13

251:15 253:11

254:7 261:19

264:16 267:9

268:17 269:14

270:8 274:4

276:5 277:14

279:9 281:9

285:3,13,22

287:11,18

288:1,2,4

290:8 291:6,16

292:8 294:17

297:13 305:8

306:8 307:3,12

309:18,18

status 41:13

262:3

statute 12:6

13:1 22:10,18

23:16 40:8,13

43:5 52:16

54:22 55:10,12

59:6 60:11

84:11 89:8

91:11 96:1

97:14 109:2

121:2,8,13,19

121:21 122:1

122:17 123:2

133:1 134:1,4

134:11,20

148:12 151:8

155:1 159:10

159:13,14,15

160:14,22

161:2,10,19

162:13 163:22

164:9,19 166:9

166:20 167:5,8

167:13 176:21

177:1,2 187:18

187:22 188:1

194:19 195:5

195:15 200:22

202:15 203:8

203:15 247:4

270:3 293:10

293:16

statute's 123:3

statutes 121:16

232:8 287:5

statutory 6:18

25:17 54:6,13

58:17 69:4

90:7 104:14

114:2 127:18

130:16 148:13

161:17 164:13

164:13 165:13

170:22 176:15

183:13,16

187:16 310:5

stay 259:14

steal 197:15

stems 224:6

stenographica...

313:7

step 25:2 44:8

58:22 273:3

steps 103:18

222:17,19

223:1,5 256:9

272:5 273:4

274:3 275:1

stolen 197:18

Stone 76:2

stop 66:22

227:18 304:8

storage 238:12

238:14 239:4

282:13

stored 228:19

stories 64:1,12

storing 235:12

straightforward

239:19

strategic 301:7

310:7

stream 190:3

192:14

strength 42:6

strict 129:3

225:13 269:16

stricter 257:8

strictly 224:15

strikes 178:13

178:14 187:12

strong 135:19

174:8 256:6,22

257:11

strongest 160:22

161:17

strongly 185:10

206:18

struck 288:15

structural

193:20

structure

132:22 133:22

134:20 164:13

309:17 310:5

structures

309:16

structuring

309:12

struggle 304:1

struggling

157:20 288:17

studies 64:22

study 110:18

stuff 200:20

sub-questions

44:7

subject 6:15

11:4 19:13,17

19:19,22 25:17

86:12 133:16

212:10 213:3

214:20 215:1,6

224:10 243:14

244:18 247:11

292:4,5 296:5

296:6

subjected 18:10

211:4

subjects 36:17

submission

132:18 159:5

161:11 246:15

submit 312:7,8

submitted 7:11

8:22 19:15

22:10,20 117:2

211:21 312:11

submitting

116:21 117:4

182:16 312:10

subpart 109:9

161:21

subpoena

153:12 156:18

subsequent

27:18 77:1

191:22 193:3

193:11 201:13

213:7

subsequently

27:16 28:6

44:2,3 196:14

198:1 199:20

subset 56:9

82:16

substantial

99:13 241:19

substantive 78:9

78:12,17 79:1

236:1 243:2

substituting

106:18

subterfuge 9:16

succeed 205:5

success 64:1,11

successful 263:7

succinct 309:4

Sue 5:4

sufficient 41:1

42:2,4 160:1

173:11 174:3

177:13 179:7

198:13 272:21

suggest 41:12

45:11 72:10

77:9 83:15

148:14 195:1

215:20 216:14

274:21

suggested 28:14

68:9 162:21

252:14 275:1

278:21

suggesting 34:3

137:5 148:18

167:3 199:9

215:6,22
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

46

suggestion

135:18,19

244:18 275:1

suggests 41:21

41:22 166:16

245:18

sui 207:22

sum 237:2

summary 54:3

sunset 69:3

100:12

supervised 83:9

supervision

7:16

supplanted

184:21

supply 295:22

support 123:2

218:14 238:16

supported

233:17

suppose 49:4

109:13

supposed

285:15

Supreme 15:8

129:9 167:6

249:10

sure 15:4 24:1

24:22 28:22

33:6 36:7,8

40:6,22 44:8

52:20 56:17

58:20 74:13

85:13 92:7

94:7,20 96:18

100:13 105:11

111:14 113:19

127:5 149:1

153:21 154:5

168:10,21

169:14,17

178:5 181:8

182:1,4,19

185:20 187:6

189:14,15

199:22 207:14

216:14 222:6

222:20 245:16

248:13 270:1

301:22 311:17

surprised 119:8

246:9

surveil 123:10

123:11 151:16

172:22

surveillance 1:6

1:8 2:11 3:3

6:14 7:18

11:13,17 29:11

43:3 44:22

45:4 49:2

116:2 121:4,10

121:15 123:9

124:14 125:16

126:2,6,9

127:15,19

128:1,7,9

129:12,18,20

131:15 133:14

133:17 139:1

139:16 140:17

141:5,16

150:11,21

151:2 158:8,8

158:10,11,17

160:7,9 161:1

164:10,11,14

165:2,5,6,9,11

166:8,11,13,17

166:19,21

167:3 169:1,11

170:13 171:11

181:22 182:21

183:14 188:8

188:14,18

195:17 196:22

196:22 197:2

206:6,10 210:6

210:18 211:7

214:19 215:7

215:11 216:20

221:4 225:15

225:21 226:19

227:11,18,19

227:21 230:15

231:15 232:3

232:16 233:12

235:1 238:13

238:17 239:6

239:17,21

240:2,4,5,7,13

240:15 241:7

242:3,6,8,12

244:19 245:2,5

246:7,11,18

252:12,19

253:3,7,20

255:3,8 257:17

261:21 262:7,8

264:10,17

265:7,19

268:22 269:3

270:6,9,16

271:1 272:1,15

274:12 275:12

277:1,4 278:3

279:4 280:1,8

283:9,10,11

289:21 290:1

291:11,17

293:15 295:11

296:14 300:2,9

300:15,21

301:12 302:8

304:13 306:7

307:18 308:2

308:17 310:7

surveilled

269:20

surveilling

151:14 175:7

197:4 235:17

277:19

survive 125:2

survived 187:1

suspect 49:1

156:1 302:4

suspected

151:16 198:14

suspicion 48:19

199:2 302:9

suspicionless

281:14

swath 192:6

switch 189:8

303:16

synthesizes

239:9

system 33:9

42:14 80:10

119:18 124:14

125:2 130:17

184:22,22

185:4,5 233:5

233:10 256:3,5

309:12,19

310:1

systemically

292:7

systems 44:18

45:2 72:21

154:17 231:8

232:21 241:8

258:18 259:8

T

table 44:13

105:20

tail-end 44:12

tailored 30:17

47:12 88:18

228:6

take 15:4 41:10

42:6 50:22

53:9 77:6

92:17,17

109:10 113:4

119:12 124:18

151:20 156:6

156:17 157:6

166:20 168:5

171:4 174:11

187:10 190:14

193:3 196:3

197:15 209:2

217:16,22

223:1 224:1

225:13 227:19

232:17 244:10

289:17 291:3

296:12 306:17

311:19

taken 22:1

145:14 190:10

211:16 222:18

247:17 249:9

252:3 270:8

273:5 274:3,4

takes 156:4

224:15 269:1

talk 8:12 20:14

24:2 25:1,3

28:19 29:1

39:18,21 89:1

98:20 120:12

174:9 182:20

191:15,15

213:15 223:15

265:10

talked 23:17,20

27:13,14 61:2

105:21 137:3

168:18 204:11

260:20 261:18

278:7 310:3

talking 30:12

31:17 36:11,16

38:2 52:19

58:7 68:2 72:1
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

47

72:2 76:1

81:21 86:2

90:11 98:6

99:21 103:20

112:14,19

137:9 146:12

168:1 189:16

205:22 216:16

249:20 270:16

284:1 287:16

287:19 292:19

talks 161:19

270:3

target 8:2,6 9:4

9:10,14,16

10:17 12:3

14:3 29:7

40:13,14,19

50:17 51:1,14

52:14,17,20

54:5,14 55:15

55:19 58:14

61:10 71:2

80:15 82:9,10

89:2,9,11,12

90:1,12,21

91:8,16,17

92:1,6,8,13

97:1,18 116:6

116:9 131:8

133:5,20

137:12 141:12

141:12,15,19

147:12,13,14

150:21 154:8

154:22 155:2

161:12,15

163:22 164:20

165:15 166:2

166:21 167:4

201:11 206:22

207:7 281:16

targeted 10:7

24:16 25:8

43:19 48:8

52:12 60:7

124:5 149:9

167:18,18

169:22 229:14

253:4 279:5,21

targeting 9:9,10

10:20 13:12

15:6 16:11,13

17:1,6 21:13

22:9 24:9

37:10 40:9,16

42:15,22 49:20

51:5,22 52:8

54:21 55:3,4

55:10,11,12,14

55:21 59:18

81:18 89:2,14

89:21 90:4,6,8

90:10,21,22

91:1,2,3,4,6,7

92:11 97:20

101:2 103:14

114:3,14,22

117:14 119:13

120:14 122:4

123:14 130:22

133:17 147:11

161:2,7 162:1

162:6,14 163:7

177:6,7 200:21

203:11 204:5,6

205:9,11

206:19 281:11

294:1,12,16

310:7

targets 8:18

12:4,12,18,20

37:14 60:15

114:6,6 120:3

122:8,20,22

123:7 134:6

135:14 151:15

163:2 167:9

176:18

task 53:2,4,7,8

tasked 95:4

tasking 50:17

53:2,3,19 54:9

61:7,21 100:20

188:16,17

189:4,5

taskings 53:22

technical 34:2,6

45:1 46:2 89:7

119:3,3 227:15

technically

137:9 144:14

technological

204:19 228:20

technologies

219:7,11

technology 3:17

137:18 182:2

209:13 227:9

270:9

telecommunic...

235:7,9 282:9

telephone 9:4

10:8 14:5

47:22 48:18

190:11,15,19

190:19

telephony 66:11

tell 60:21 65:21

80:3 93:9

107:11 260:4

telling 168:2

tells 293:10,17

temporarily

47:21 229:13

tendency 266:10

tends 154:19

tens 134:15

163:5 219:14

term 38:18,19

39:6,7,12

50:13 51:3

52:5 54:6,6,7

54:10 55:10

70:13,14 82:7

95:4 96:15

97:3,5,8 99:17

106:21 159:7

230:5

terms 19:5,9

21:22 33:21

38:3 50:15,19

50:20 58:3

66:18 69:17

71:15 83:3

102:1 106:1

110:13 117:9

118:18 147:19

196:10 202:21

208:20 228:12

244:3,8 264:9

272:13 275:11

295:4

terrible 167:16

territorial

138:17 139:3

139:10 143:16

224:15 231:5,6

232:1,5 243:10

243:15 264:15

264:22 265:5

278:16 295:12

305:8

territoriality

258:8 303:11

303:19 304:14

304:18,20

territorially

271:11 297:11

territories

220:12

territory 129:8

212:9,16,19

213:3,13

214:11 215:5

224:9,17,19

230:19 231:11

232:17 233:3

234:18 235:16

235:19 246:7

246:22 247:3,5

247:10 248:2,4

248:5 270:3,5

285:11 296:5

303:14,15

terrorism 13:14

34:17 172:18

285:6

terrorist 51:10

53:12 57:13

103:9 151:17

169:2,7 297:14

terrorists 51:6

60:19

test 42:5,5 156:3

243:1,2

testify 218:8

testimony

121:13 218:16

222:3 239:9

252:9 279:11

282:2 294:5

tests 178:12

text 161:7

164:13,17

167:12

textual 160:22

164:5 176:22

194:7

thank 4:22 5:3

8:10,10 13:20

27:7 35:5,19

43:15 113:1,6

113:19 116:15

117:1 120:17

125:5,6,7

132:8,10

136:18,20

145:11 152:13

167:14 172:6
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

48

182:6,7,15

208:22 209:4

210:3 218:3,4

218:5,5,8,9

223:9,10,11

230:10,12

237:22 238:1,2

242:17,20

248:19 252:20

260:6,14 266:7

266:15 273:1

291:13 295:6

311:9,21,22

312:20

thanks 20:2

35:20,20

120:19,20

125:7 160:18

160:18 209:6

247:15 288:21

307:15 312:2

theoretical 48:7

theoretically

247:9

theories 38:13

theory 39:19

195:17 206:1

thing 38:17 65:8

71:1 77:17

138:10 145:2

167:16 168:4

179:16 182:5

201:16 206:2

208:12 226:9

253:19 305:12

things 25:11

26:1,11 34:7

34:11 36:16

38:9 45:10

52:7 57:14

59:11 63:10

71:5 85:18,22

95:18 104:7

105:8,12 135:8

136:11 161:10

182:14 200:18

202:17 244:11

245:15,20

253:22 257:13

258:1 259:16

265:14 266:8

279:7 287:8

289:9 296:20

302:21 303:1

306:4 307:10

think 13:18

15:19 19:1,7

19:14 20:1

23:14,21 24:1

25:4 28:9,14

31:4 32:7,8,8

33:8 34:1,2,5

35:22 36:12,13

36:15,17 39:5

40:6 43:15

46:15,22 47:19

48:6,10,11,14

49:9,10,13,15

56:4 57:3,21

58:6 60:2 61:7

61:18,19 62:17

63:19 64:3

65:21 66:21

67:3,5,10,13

67:15,19 68:1

68:2,5,8,10,18

69:2 72:22

73:20 74:1,5

75:4 76:6,13

76:21 77:5,8,9

77:11 80:6,21

82:5 83:8,15

83:17 84:2,5

85:9 87:10,13

87:18,19 88:5

91:6,16 93:2

93:11 94:9

96:14 97:5,12

98:18 99:5

102:17,18

103:20 106:9

107:2,3,18

108:20 110:5

110:15 111:3,4

112:11 118:16

119:12 120:9

125:10,15

131:20 132:7

134:18,22

135:1,16 136:9

137:14,17

138:9,13,20

139:5,10 143:1

143:3,17 144:3

144:17 145:19

148:19 151:11

152:21 156:3

157:13 158:1,4

158:9,19 159:6

161:8,15,17

162:5,21,22

163:9,21 164:8

164:8,10,12,19

165:7,12 166:4

166:7 167:10

168:19 169:12

170:3,5,12,13

170:19,20,21

172:13,19

173:10,11,18

173:21 174:2,7

174:8 176:4

177:1 178:2,3

179:15,19

180:11,16

181:4,8 182:1

182:2,12,12,13

183:5 184:1,3

184:10,11

185:6,10,11,13

185:19 186:4,7

186:11,17

187:4,15 188:4

189:19 190:6

192:13 193:18

194:5,7,14,17

195:1,18 196:7

196:16,20

197:16 198:18

200:5 202:9,14

203:6,13 205:7

205:18,21

206:1,3 207:5

208:8,12 210:8

210:16 221:9

222:10 223:7

244:20,22

245:7,9 246:3

247:13 248:16

248:21,21

249:10,19

253:14,21

254:13 260:3

260:17,22

261:3,12 262:6

262:9 263:21

264:12 266:3

266:19 267:3

269:7 274:15

274:17 276:18

279:2,15 280:1

280:12 282:18

283:6,19 285:9

285:19 286:15

287:3,7 288:13

288:22 289:5

291:15 292:11

294:4 296:10

298:2 299:18

300:6,8 301:13

305:5,11

307:20 309:13

310:22 311:10

311:15

thinking 162:14

203:13 208:2

208:14

thinks 288:1

third 11:4 66:17

72:17 114:9

116:12 117:6

140:8 203:22

209:3,8 288:10

296:3

thirdly 31:14

thirty 124:8

thirty-five 150:9

187:1

thought 58:1

72:2,4 110:2

146:7 170:20

183:15,17,21

188:20,21

252:22 275:17

310:16

thoughts 272:9

298:7 310:10

311:3,5

thousand 43:11

74:6

thousands

134:15 163:5,5

threat 32:16

108:8 232:10

253:11 300:11

threats 13:15

60:19 103:6

236:9,10

282:10 283:1

three 6:11 11:5

63:21 121:22

139:22 202:17

220:18 243:7

threshold 104:2

116:10 198:3

throwing 173:3

time 12:14 20:1

20:4 27:6,8,22

28:3 29:19

30:2,5 35:6
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

49

36:6,10 40:3

50:4,5 51:18

56:13 62:22

65:12 67:5

72:9 75:1 82:2

82:20,21 85:16

85:17 87:15

92:17 93:22

100:14,15

113:2 125:12

175:13 195:13

212:2,12,21

215:17 237:8

247:13 266:18

271:20 278:13

283:17 286:19

295:6 300:8

306:12 311:20

312:1,19

timekeeper

269:16

timely 67:19

times 14:4 48:21

284:21 307:18

tiny 44:11

tip 118:7

tipping 157:6

title 12:16 29:4

29:10 111:3

116:4 121:16

141:10 155:21

171:17 179:2

194:3 197:18

206:7

today 5:15,20

6:11 98:10

99:21 113:2,20

121:18 124:9

124:21,22

125:8 196:17

200:17 209:1

218:8 220:6

236:15 239:9

239:18 243:17

260:17,20

261:16 264:4

266:7 273:19

292:12 312:5

today's 5:1 7:13

109:18 312:12

told 214:8

tool 65:22 66:4,7

66:13,22 67:1

tools 13:9 66:1,2

top 87:12 95:12

101:15 185:18

189:19

topic 37:13 50:8

63:10 232:4

312:8

topics 79:5

torture 225:20

270:14

tortured 270:18

torturing

270:20

total 144:22

234:17

totality 41:7

42:5 178:12

totally 9:13

104:5 196:5

touch 6:1 245:2

trace 156:8,8,10

157:10

traces 118:9

track 71:13,21

72:9 81:5

192:10

trade 300:13

tradition 125:21

128:21 130:14

130:17 185:16

traditional

14:16,17 153:8

153:12 155:6,8

156:10 158:2

206:7

traditionally

84:6

trail 118:6

training 34:6

41:18 62:4

86:6

transatlantic

300:12

transcript 7:9

312:12 313:8

transfer 229:1

transfers 241:3

transformed

219:22

transiting 138:7

transmission

235:10

transmissions

235:13

transnational

3:14 7:1 209:9

232:16,19

233:12 235:21

236:19

transparency

221:6,8,21

239:16 241:19

272:8,9,13

273:16,20

276:1 277:8

279:14,16

284:13 291:18

292:16 293:19

294:20,21

301:2

transparent

98:16 293:9

trap 156:7,8,10

157:9

travel 119:19

228:22

treat 280:7

treated 34:4

95:16 217:17

treaties 238:22

249:5 251:4,17

251:17 290:15

treatment 79:19

253:18

treaty 210:22

211:19 212:13

212:18 214:18

224:5,21,22

225:3,7,14

227:6 243:9

245:19 246:1

247:4 249:13

249:15 250:11

250:21 251:12

251:18 267:17

267:18,20

268:2,3,4,7,16

271:4 286:17

286:19 289:10

290:3,11 291:2

291:5 299:6

306:14

tried 205:1

223:22

trigger 15:12

true 135:22

181:12 187:11

213:14 289:16

313:8

trust 219:6,7

222:12 228:13

232:11 237:6

292:9

try 32:15,17

64:19,22

253:16

trying 52:9 60:9

61:9 69:16

88:14 90:1

108:15 144:18

146:8 164:1

165:13 172:1

186:11 191:17

199:6 247:12

267:1 286:8

turn 8:7 30:9

32:5 58:10

77:16 233:18

242:21

turning 230:22

turns 41:17

73:22,22

189:14

twice 69:5

two 5:9 6:19

25:7 30:13

39:1 41:22

42:1 47:14

53:1 54:16,17

65:16 73:6

82:8 94:22

101:11 110:5

125:13 126:10

127:4 129:5

132:17 133:2

146:2 162:6

168:6,17

171:19 175:18

176:2,11

178:13 180:17

182:14 187:14

188:22 201:5

218:12,16

225:3 230:16

230:18 232:3

243:1 248:20

249:16,16

263:9,15 271:5

277:16 278:4

282:17 289:15

type 10:19 25:19

25:21 26:4,15

32:22 33:17,20

57:7 58:19

59:5 66:7

105:18 132:3

157:10 178:12
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

50

183:17 260:18

288:7

types 25:3,7,14

25:16 27:2

29:3 30:13,18

33:11,19 34:10

66:8 73:6

139:11

typical 21:17

55:2

typically 39:13

51:4

U

U.K 240:21

310:8

U.N 211:22

231:4 234:1

236:5 247:19

251:6,20 252:7

264:14,20

265:1,15,15

290:16 304:21

305:7,11 307:8

U.S 9:17,21

10:14 12:2,11

14:6,9,13

15:10 16:5,10

16:20 17:8,10

17:13,21 19:4

19:21 28:17

30:12,14 31:21

36:20 37:2,19

40:13,15 43:17

43:20 45:13,14

47:22 48:3

54:17 71:20

74:2 78:10

79:22 80:12,12

81:6,9 82:14

82:16 89:4,16

89:21 90:1,8,9

90:12,14,22

91:9,14,19

92:2,9 94:12

96:8,10 97:19

101:3,8,18

102:12 103:11

103:13 106:3

106:19,20,21

107:1,19

108:16,19

109:17,19,22

111:5 112:17

114:8,14,18

125:15 126:8,9

127:6 128:9

129:19 130:1

130:17 131:8

133:5 138:2

139:21,21

142:7,8,8,8,17

143:20 149:3

152:5 172:11

172:21 175:17

176:5,18 177:3

177:7,9 178:6

180:2 183:12

183:22 184:2

193:4 194:12

194:17 201:1,2

211:2,18

212:20 213:18

214:14,20

219:7 223:15

224:2,5,14

225:12,13

226:6 227:3,7

227:8 228:4,19

229:5,11,18

230:1,5,15

232:11 233:6

234:7 236:18

237:1,4,13

238:14 240:1

241:2,21 242:8

242:10 244:12

244:19 245:3

248:13 250:20

251:10,16

256:3,11

260:21,22

265:19 267:12

267:15 268:2,6

268:7 272:4,15

278:3,14,16

279:17 280:7

282:9,16 283:1

283:15 284:14

295:11,21

297:12 300:6

304:1,5 310:18

U.S.A 219:8

236:22

ubiquitous

220:4

Ukraine 236:15

Ulrich 3:20

209:15

ultimate 49:4,8

ultimately 72:15

185:13 245:6

unable 98:8

unanimous 4:20

312:18

unanswered

135:10

unavoidable

96:17

unclassified

5:21 60:22

75:18

unclear 181:17

unconsenting

104:18

unconstitutio...

121:1,9 153:6

153:10,17

unconstitutio...

169:6

unconstrained

129:14

uncontroversi...

127:9

uncovered

201:12

under-empha...

125:14

underlying

49:14

undermine

134:10 222:18

223:2,3

undermined

150:8

undermines

163:9 230:5

underscores

247:19

understand 8:8

17:15 18:3

20:14 25:5

31:10 32:1

33:1 50:16

52:6 58:6

67:14 68:3

79:18 80:7

82:17 86:17

107:21 108:7

109:3 119:9

124:11 143:2

145:13 146:12

148:21 157:20

158:12 168:21

182:19 184:1

191:17 194:9

194:11 242:22

262:16 286:8

296:1

understanding

50:11 98:5

106:1 108:8

125:15 164:2

179:17 184:21

194:1 197:1

213:11 244:3

264:19 291:4

311:1

understands

56:18

understood

111:14,16

125:20 131:11

261:19

undertake

290:17,19

undertakes 69:6

underwear

34:18

undisputed

127:15 304:19

undoubtedly

235:16

unequivocal

222:13

unexpected 12:4

unfair 200:15

unfortunate

77:5

unfriendly

244:8

unhappiness

49:7

unhappy 49:2

215:11,18

unilaterally

278:1,1

unintentional

96:20

Union 3:7

unique 12:5

18:14 26:19

47:15 229:19

United 8:4,19

9:12,15 10:15

10:21 29:8

39:20 40:4

67:8,11 71:18

71:20 72:3

73:11 86:20
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

51

89:5,11,13,15

89:17,22 90:2

90:13,15 91:10

97:17,20,21

103:10 104:18

114:19 115:12

128:3 129:8,10

129:13,19,22

130:14,22

131:2 133:6

137:10,12,13

138:7 140:14

147:6 151:17

159:18,19

162:2,18

176:19 180:19

210:7 211:15

211:18 212:5,5

212:15,16,18

213:20 214:8

215:8 216:5,6

216:7 217:7

239:8,20

240:11 243:20

245:6,9,12,14

246:2,11 248:5

248:10,12

250:2,8 251:13

251:15 253:11

254:6 267:9

268:17 269:13

270:8 274:4

276:5 277:14

279:9 281:9

285:3,13,22

287:11,17,22

288:2,4 290:8

291:6,16 292:8

294:17 297:13

306:8 307:3,12

309:17,18

Unites 89:10

universal

210:19 217:6

universally

225:4 295:15

295:19 296:18

universe 197:3,9

University 3:5,8

113:11,14

unknown 83:8

233:1

unlawful 199:10

211:4 216:9,12

216:15,20

296:16 298:4

298:14

unreasonable

121:11

unregulated

144:8

unsupervised

130:15 144:12

upheld 126:7

upholding

121:15

upset 246:10

upstream 26:5,6

26:15,19 30:15

30:19 36:21,22

37:6,10,21

47:13,15 56:9

56:10 57:19

63:6 93:6,8,16

93:20,21 94:3

94:6 95:16

101:12 187:7

248:14

Ur 76:2

urged 7:5

Uruguayans

246:18

USA 5:11

usable 176:12

USC 111:2

USD 188:10

196:6

use 13:4 34:21

39:6,7,9,13

78:10 81:20

91:15 96:5,15

97:18 98:12

106:13 111:7

142:11 147:18

159:7 171:6

172:5 176:7

181:17 199:14

201:1,2 203:17

206:16 253:18

265:6,17

useful 67:15

85:22 103:4

106:9 170:10

206:2 283:13

uses 55:10 66:17

99:16 119:11

usually 106:8

128:3 162:14

303:18

utility 64:13

65:10 69:13,14

utilized 66:1

V

vague 286:12

valid 12:3,12

13:5 59:6,8,15

92:6 253:12

303:4

validity 6:10

valuable 13:9

66:6 67:8,11

102:17,18

value 43:21 44:6

44:15 45:11,22

46:8,18 47:2

65:17 80:2,16

82:3 102:14

103:2 110:8

163:8,11 164:3

191:12 230:4

values 310:19

variety 13:15

23:5,10 34:17

65:10 75:14

84:4 94:16

various 22:9

46:20 67:7

69:3 153:15

238:8

varying 6:13

277:18

vast 150:5

279:18 286:1

293:5

vastness 227:1

269:10

veneer 142:11

venue 301:6,11

Verdugo-Urq...

129:11 147:5

versus 71:14

129:10

viability 220:11

Vienna 231:21

249:4

view 10:13

50:16 67:6

83:3 89:3 91:2

97:17 98:21

120:22 121:8

123:1 125:10

145:22 154:17

159:16 182:22

184:2 185:17

190:5,18

191:18 192:18

193:9,22 211:9

218:12 246:2

246:20 250:2

251:9 263:12

277:6 291:7

296:11 310:13

viewed 10:22

24:10 273:3

viewing 88:12

views 5:2 7:7

182:9 250:4

268:21

vigorous 276:15

VII 194:3

violate 11:21

156:14,20

224:18 232:6

264:21 265:20

violated 227:14

violates 121:2

210:19 211:8

231:6,20

296:21

violating 158:3

217:1 231:13

violation 158:1

215:22 253:8

261:22 262:3

263:21 264:8

265:21 267:7

286:13,17

296:17 297:6

violations

153:20 232:10

232:13 233:1

virtual 234:20

234:22

virtue 135:21

vis-a-vis 80:5

93:8 293:14

visit 120:1

vocabulary

158:13 188:20

189:15

voice 191:9

voicemail

190:19

volume 93:7,8

volumes 180:20

199:1

voluntarily

240:22

voluntary
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

52

197:20 241:3

vote 213:5

voted 100:11

vs 139:21 142:8

vulnerability

229:6

W

wait 175:14

Wald 2:5 4:15

43:14,15 44:11

44:19 45:5,20

46:6,10 47:18

48:10 49:4

50:2 78:7,8,20

79:12,15 81:16

82:17,20 106:2

106:3 107:5,11

109:9 110:1,9

110:12,19

111:12 112:16

112:19 167:14

167:15 168:12

168:15,17

169:16 171:1

171:19 173:13

173:17 175:13

200:14,15

201:15,22

202:4,19 203:3

203:11 204:5,8

205:12 207:8

248:19,20

249:22 250:13

250:16 251:21

253:1,13

265:12 277:15

277:16 279:1

280:5,20 281:4

281:21 282:1

282:21 283:15

283:19 289:1

289:15 300:5

307:15,16

308:12 309:4

Wald's 77:13,16

111:14 117:8

walk 145:16

153:18

wall 141:9

walled 220:5,7

220:14

want 4:22 10:2

10:11 13:7

20:6 23:12

24:13,15 50:8

50:20 53:4,5

59:16 60:5

64:10 68:5

69:10 76:20

77:4 85:4

86:16 89:1

91:9 96:5

100:8,13

103:11,15

112:22 113:18

125:9,13 132:6

145:13 149:19

149:21 154:5

172:7 174:6

175:16 179:14

182:10,11,18

207:11 208:22

209:7 215:9

218:14 233:16

242:21 243:6

243:16 260:11

269:17 283:3

301:3 311:4,21

wanted 5:3

13:22 27:11

35:10 63:1,9

85:5,8 86:3,11

87:2 92:21

93:5 96:4,17

98:3 111:13

148:21 149:16

172:9 192:20

247:1 260:14

261:13 266:21

272:5 284:4,4

291:12 311:8

wants 59:1

201:7 295:8

War 225:2

warrant 8:5

15:20 16:1,6

16:17 21:20

28:11 115:16

121:9 128:3

129:18 130:1,5

136:15 137:6

139:20 140:12

142:5,9 143:6

146:21 147:2

150:2,16 151:6

151:12,14,18

152:8,10,10

154:2,10 160:8

172:9,10,16

173:1,11,13,15

177:11 180:8

184:15,16

185:14 205:15

206:4,7 281:5

281:8

warrantless

14:12 115:2

121:4 126:8

128:7

warrants 10:17

141:7 151:22

157:4,5 173:14

256:15

Warren 299:16

Washington

1:17 4:8

124:13 174:10

wasn't 158:16

wasting 85:17

Watch 3:19

209:15 251:5,8

way 16:16 20:22

31:4,4,12 34:4

34:9 35:7

44:18 57:20

64:12,14 78:2

85:1 99:2,7,19

101:22 104:5

137:18 138:13

143:2,2 144:13

153:2 154:21

157:12 158:16

169:12 175:2,3

175:4 180:9,10

184:4 197:1,5

198:19 199:3

203:3 208:4,9

208:10 219:22

222:16 225:8

246:1 257:5

268:4,7 271:8

278:20 280:1

287:12 309:11

313:10

ways 19:3 65:5

65:16 68:9

95:19 135:3

188:6 228:6

271:6 287:11

306:22

we'll 8:14 32:13

32:14 50:5

77:21 113:4,5

132:12 174:13

174:20 260:7

260:12 266:1,2

we're 13:12,12

13:18 31:17

36:16 43:11

51:15,15,18

52:19 58:7

73:9,14 76:14

84:11 96:18,20

99:21 103:13

103:13,20

110:21 112:14

113:8 115:2

118:1 124:10

124:22 126:14

137:9 142:11

177:6,7 189:15

194:9 198:5

199:5 207:21

209:2 215:18

216:16 218:17

218:20 219:5

219:19 220:2,9

228:15 254:9

287:3 295:6

we've 11:15

23:8 27:13,14

29:15,16,19,20

30:11 36:1

58:5 61:2 65:6

70:7 84:8,8

85:1 172:12

176:7 188:21

189:19,20

193:17 223:12

252:3 254:15

260:20 278:7

278:17 279:13

291:14

weapons 59:13

285:6

website 312:9

websites 175:10

week 276:11

307:11

week's 239:14

241:6

weeks 86:14

weigh 179:14

weighed 16:4

weird 138:5

welcome 4:2

7:10 200:12

237:12

welcomed
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

53

311:18

well-founded

234:5

well-known

35:22 274:2

well-recognized

119:17

went 47:20

140:11

weren't 166:4

188:7 274:21

Westphalia

305:1

whatsoever

134:9

white 140:10

217:10 238:7

238:19 239:5

239:10,13,19

240:8 241:16

242:18 275:13

277:8 282:19

who've 168:17

276:15

wholly 40:17

94:13 95:5,20

95:22 134:15

163:7

wide 13:15

192:6

wide-ranging

126:8

widely 277:18

Wiegmann 2:19

15:4 17:5 18:7

18:12 19:1,21

20:16 27:21

28:22 35:16

43:6 50:22

53:3,8,17 55:1

56:1 60:1 61:5

61:16 73:5

75:4 76:13

77:17 89:18,20

90:5,17,20

91:5,13,18,22

92:4 103:8

105:14 107:17

108:2

willfully 224:18

William 140:19

140:20

willing 58:3

willy-nilly

297:19

wind 216:3

Winn 5:5

winners 275:15

wire 165:3

wire-brushing

99:17

wiretap 12:16

12:16 14:16,18

21:19 29:10

115:16 146:20

153:9 155:8

wish 104:4

132:6 208:13

245:16 290:6

withdraw

300:11

witness 256:4

313:12

witnesses 35:21

160:19 284:20

309:10 310:12

WMDs 59:12

Wolf 3:22

209:18 238:1,2

254:22 275:7

275:13 277:5

278:20 282:2

282:18 283:5

299:15

Wolf's 274:1

won 233:10

wonder 45:16

wondered 249:2

308:19

wonderful

168:2

wondering

172:2 252:15

word 56:6 96:5

160:2 224:12

249:3,16

wording 213:11

words 26:14

38:6 45:12

57:13 107:22

108:4 127:17

135:15 147:20

160:21 171:1

188:5 204:16

213:10 255:10

260:9 278:11

work 238:10

266:6 282:19

302:18

working 46:11

79:15 110:20

220:20 222:12

266:12

works 20:15

108:20

world 83:10

182:8 218:8

219:12 234:15

234:21,22

246:4 250:3

252:2 254:8

262:16 264:2,3

275:21 283:12

289:19 293:11

305:6 307:6

310:17

world's 229:19

world-wide

231:14

worse 260:5

worth 68:3 74:8

88:6 126:7

228:11,14

wouldn't 23:14

48:2 52:5 90:3

92:10 168:7

171:2,16

writ 295:17

write 290:15,15

writing 245:19

311:6

written 7:9,20

87:8 88:4

116:21 121:13

132:18 159:5

161:11 182:17

200:20 239:8

246:2 252:9

312:8

wrong 40:3

66:21 67:2

71:19 72:3,5

73:20,22

100:21 110:3

160:2

www.regulati...

312:9

X

Y

Yahoo 191:7

Yahoo.com

207:3,4,5

yeah 75:9 84:7

104:4 107:15

109:1 146:13

155:7 164:17

248:15 249:22

249:22 255:10

288:21 296:2

year 5:8 17:19

22:8,14,16

23:1,4,7,15,16

47:8 74:20

219:20 220:20

years 11:20

47:14 69:5

94:22 99:9

101:9,11,11,12

101:12 104:9

150:9 187:1

211:15 214:14

301:8

yesterday

124:13 174:10

yield 162:19

288:9,11

YouTube 191:8

Z

0

1

1 43:9 258:8

1:45 209:3

10 93:16 313:17

10th 4:10

1127 1:16 4:8

11th 93:12

12333 81:7,12

109:6,8

17 210:21 211:3

211:8 216:8

217:1 233:20

246:12 260:10

261:17 267:7

289:22

18 188:10 196:6

1806 111:2

1881 161:21

1890 299:19

19 1:10

1950 211:19

212:21 213:6

1967 140:9

1970s 15:21

1972 139:22

1973 195:10
Public Hearing March 19, 2014

202-220-4158 www.hendersonlegalservices.com

Henderson Legal Services, Inc.

54

150:13

1990 129:10

1992 211:2

1995 211:20

213:9

19th 4:6

2

2 92:18 212:6

213:6 231:3

304:21 305:7

2001 210:11

2002 116:2

141:10

20036 1:17

2005 210:9,11

2008 75:15

77:15 247:17

2009 210:10

2010 234:7

2011 93:13 94:9

134:13 135:19

2012 69:6 100:1

2013 234:8

238:6 239:5

313:13

2014 1:10 4:6,10

5:14 313:17

215 5:10,13

47:20,21 48:16

48:20 49:16,21

50:3 69:1,4

152:22 157:7

170:7 204:11

204:18 219:3

221:18 272:12

273:8 292:18

293:2

23rd 5:13

25th 219:20

28 237:13

28th 7:12

312:10

3

3 231:21

3:40 312:20,21

30 61:20

31 234:2 249:4

249:20

32 303:22 304:4

4

402 157:8

49 40:2

5

50 111:2

51 39:19 40:2,21

40:21

6

60 42:18 59:21

62:8

68167 236:6

7

701 252:18

702 1:7 2:10 3:2

4:4 5:11,16

7:17 8:12,14

8:17,21 10:3,5

10:11,20 11:4

11:8,22 12:5,9

12:22 13:8,10

19:12,19 21:3

21:12 22:6

23:18 25:4,8

25:16 30:22

36:14 37:9

38:6 40:5

43:18 48:3,12

48:15,22 49:16

56:8 65:6,15

66:10 67:7

69:6,19,19,20

70:9 71:2,4

75:17 77:18,20

78:3 79:2 80:5

81:1 88:15

90:9 91:15

97:18 99:21

100:1,10 107:8

111:4 112:15

113:21 117:13

118:11 119:12

121:1 123:13

123:21 124:10

124:11 125:17

125:19 126:12

126:15,18

128:5,12 129:4

130:19,21

131:6,11

132:22 133:3

135:4,6 137:9

141:17 145:22

148:7 151:4,8

151:8 152:20

158:22 160:14

165:5,10,10

170:7 186:9

187:5 193:1,18

194:3,13 196:7

200:17 201:6

202:12 203:14

204:15,17,21

205:12 207:22

219:4 221:12

221:17 223:6

228:2,3 239:6

240:4,7 243:3

243:19 267:2

267:16 272:2

273:9,20

274:10 277:22

280:22 281:6

281:11 291:20

292:20,22

293:21

703 177:4

704 92:18 177:4

8

8 213:6

9

9/11 34:17 257:2

257:13

9:00 1:17

9:05 4:6