"q&a," author and television host tavis smiley on his latest book, "death of a king." and tonight at eight on c-span2, author ronald rossbottom on german-occupied paris in world war ii. saturday night at 10 on ""after words,"" jeff chang on the idea of racial progress in america, and saturday night at ten, edward o. wilson on what makes us human and different to other species. ..

he was not using his own personal innuendo and i greatly enjoyed it and i hope you have more guests like that but he was right on target this morning.

>> i am calling to say that i think like many people, c-span is wonderful but for criticisms i almost have none and i am a very partisan kind of person and you all do a tremendous job of showing just about every side of everything of the way people look at things in dc and elsewhere. i take my hat off to you. >> continue to let us know what you think about the programs you're watching. we are live on this friday morning for another look at the midterm election outcomes and how they will impact states and local communities by the governing magazines where it is just getting started.

>> to discuss some specific initiatives but right now i would like to start with the governors races. you've been tracking bees and predicting the rankings for more than a year as you've done in several previous cycles. the republican wave that we saw at the congressional level x. tended to the governors races this year. how did did tuesday compare with what you were expecting to see? >> there was always the chance there was going to be a wave but it could have been anti-incumbent which both democratic and gop governors lost. if i had to choose one it probably would have been the incumbent. there were 12 which were tossups prior to the election.

if i had to be pressed down and i think i would have said a couple democrats, coupled gop governors would lose but it wasn't at all like that. ten of them went to the gop, one went to the democrats and one is in the air but it's going to be an independent in alaska who is in first place right now. so it was a gop wave and it's interesting. what i predicted before the election is that it would be more of an anti-incumbent wave is that's typically what it's been if there's been a wave. in 2002 the midterm elections there were 36 races and on election night, 20 of the 36 parties. it was largely open seats. i think a few incumbents lost.

but you have to have a significant number of the parties losing seats in the governors races and then in 20 year elite co years after that, there are a lot of open seats after the first one so there are a lot of governors that serve. that year it was 1836 on election night and again the folks at both parties lost so using that model i kind of felt that we would see some of the parties lose. possibly a sack" second would lose, but the striking thing about, to me at least, is how many of the incumbents warbled rubble and controversial, not that popular in their states and

who had really credible opponents scoring pretty well at the polls. how many survive cliques caught walker in wisconsin and rick scott of florida and sam brownback in kansas and paul in maine. these are governors who were considered really vulnerable to the credible candidates on the democratic side and they survived. the only one who didn't was in pennsylvania. so it was a specific wave which was unusual for the past five or six cycles. i think i will stop there. for so many incumbent i'm going

to go ahead and correct my thoughts because republicans have the most house seats and it's since 1928 i don't know if you saw they the lost 7% of their house members that 29% of the landmass they represented which is huge so if you look at the map to there as a joke on the internet about how they offer more coverage than verizon and it's definitely true at the state level as well they pick up the legislative chambers and they have the most legislative seats in the democratic states

like maine and pennsylvania and florida and i was thinking it looks like it might be an anti-incumbent here but it was anti-washington. democratic governors like mike beebe in arkansas have offered that as anti-obama but thinking about who lost and why i think some of the incumbents went on offense and rick scott had a joke the other day about a democratic republic democrat in republican walk into a bar and a sake hello, charlie crist. he just kept going after him and sam brownback when he realized,

he kept hitting the democrat on obama and never let up and scott walker is aggressive and worked very hard. rick snyder survived but he looked like he was in trouble on labor day because he went into the hibernation for the summer and wasn't advertising then he finally got back in the game and it's one of those where everybody thought he would win and then he looked like he would lose but came back into the game. in alaska it looks like he's going to lose. the playing field changed because the independent and the democrat formed the ticket. they thought it would be a three-way three way race and at the same time he got hit with this national guard scandal and he didn't have a quick enough defense.

at that point they would define the opposition. in maine he had no program of the independent vote that they have a strong message and the page by the way seemed so combative he tried toning it down quite a bit and martha coakley was a successful attorney general and walked into the high-profile races and the ted kennedy seat in the special and now she lost again. her answer to so many questions like whether illegal immigrants should get driver's licenses or build a casino, i am open to it. charlie baker came across and

talked about his brother living in areas of life in massachusetts. he didn't seem threatening. these republicans were so awful they cut education. he was lieutenant governor, that he ran the taking for granted campaign where he didn't have any kind of positive message and he didn't get his voters out and if you look at the five biggest restrictions and prince george county they are major populations they got fewer votes from those five counties. some of the democrats kept at his opponent he doesn't care

about you and pat quinn tried the same thing against bruce. he kept up in the game with that. was tenacious and smart about going after suburban counties. to make a big year for the candidates that were assertive and aggressive and maybe not so great for those that wanted to play nice. hispanic they were in trouble for a long time. you've been looking at lieutenant governors, attorney generals, state superintendents, school board elections. is it the same story when we look at those races in the wave of anti-democrat prorepublican?

>> they pulled into the majority of the races and the state legislatures have ten chambers for the gop. a state school superintendents there were about a half dozen contested races. very interesting ones idaho and so forth. there were frequently t. party type of gop candidates in the race is in a broad establishment accepted and the t. party gop candidates talk every single one of those races.

in general it was a very strong night for the gop. issue by issue that democrats and liberals in general did quite well. the other one that was a little bit more balanced was the supreme court races, the democratic's kind of hold of their own. they took to a couple seats and states. the deans and the ours and on balance they did gain a seat or two but it was pretty even. looking down the road a little bit what does it mean when you have a full ticket switch as you

said to the superintendents in the state to the republican party what does that mean looking in the future? >> there's a short-term impact and longer-term impact. the short-term impact is pretty good block between the two parties and not a lot is getting done in congress. you have the least active congress in the decade if not ever so a lot of the decisions are being left up to the states. if the democrats have fewer levels of power they can't really shape the agenda and it becomes a little bit of a self reinforcing situation when you have redistricting. it was the best thing to do so well because they could draw district lines and state

legislators in congress as they saw fit and that box in for ten years favorable winds for the gdp so you have a lot of states where the democrats don't have any leverage at all because they don't control the governorship or the senate. there are some states in which they do control everything and those are fine with the democrats but in the short term in the policy impact you can't have much of an impact. the longer-term impact and i haven't gotten all the figures on this i should do a story on this soon looking at the statewide offices in general for the secretary of state these are offices where they've done pretty well but you've are increasingly seeing them making

gains and the more you occupy the more team you have for the politicians in the state. if the democrats don't have the state auditors and the secretary of state and ag and they are not in charge of the statehouse or the senate they don't have high-profile politicians getting the experience, getting the name recognition around the state to run for the higher office where you don't have a lot of chances to win if you can't put up a good candidate. it certainly helps to have some sort of policy and political experience in your background as he ran you run for the higher office. >> do you have any thoughts on this leadership? who >> look who runs for governor, often the state ag's or whoever. if you don't have that, who

runs. there's nevada and so forth where they don't have anybody. but i think that we are going to have a big short-term impact because the last couple of years we had a phenomenon washington had the gridlock and of the states have had a tremendous policy movement in different ways, so we have a red state blue state phenomenon was very divided states and so the republicans have had abortion restrictions and the democrats have had a minimum wage increases and a couple of gun control measures and now it's all republicans and they control 23 states. the governorship in both chambers, plus nebraska and even in alaska at the independent was republican until it became independent. democrats are in the seven states now that control 27 states after the 2008. now it's just sad than periods

of 16% of the population and 12% of that is california. so it is tiny states. >> 16% of the population that lacks you to >> is now under democratic control. connecticut, delaware, rhode island, hawaii, oregon, vermont. so what's been happening is people that that want to do policy wanted to policy innovation and things that are stuck in washington have gone to the states but now democrats are going to have a lot fewer places to go. so i think that we are going to have an age of austerity in certain policy issues it is all pretty predictable you won't see obama care expanded. there is a tremendous fiscal incentive to agree to the medicaid expansion but obviously a lot of opposition to the law

and the democrats hoped to pick up main and get medicaid and that's not happening. you will see a lot of fights over education policy, vouchers, opposition to common core, immigration and tax cuts. we were thinking about how even among the democrats coming down here in washington in the republican congress they will try to end the cuts on the military and have more cuts on the domestic side of that will affect the state budget and the revenue growth had been about 6% for decades until 2008 and it looks like half the states are not where they were and that growth isn't going to be that great and he will have the republicans interested in cutting the taxes further but even on the democratic side in "the new york times," jerry brown the story was for democrats he said he was living within the means as a continuing battle. brown caught the legislator to keep spending limited and pat

quinn lost in illinois cut the tensions that the unions support him because they thought he would be worse. the republicans of course are more excited on the general, so i think that's going to be the impact on the less democratic venues and more republican governance. >> i would also add that it would be interesting to watch for some of these gop governors and especially the new gop governors how much the leadership gives them because i would think they would be under a lot of pressure from both leaders in terms of obama care and other policies and there is that there is going to be a conflict between how much they can do that and fix the party line while also remaining popular in the states that tend to lean blue.

>> you made the point that this was a slight rarity of resolve a state-level elections '-end-single-quote for national congress shall elections and that just reinforces this. >> my sense historically is the voters have been able to kind of compartmentalize and not necessarily vote in the same way. state issues tend to be different. they tend to be about education funding and roadbuilding and not about the things that congress is talking about so there's a long history in the recent years of republican governors in democratic states into democratic governors and the gop states and they've been kind of pragmatic in the matters to distinguish themselves on the national party because they are

campaigning on the certain issues of special interest to the state and having been tied to the national party. there was a way to distinguish themselves. that is less true now. in 2014 the election ended up being a national wave and i think it raises interesting questions about whether the states well kind of be able to stay their own different from the policy issues on the federal level whether it's going to be increasingly interest in partisan and a sort of polarized >> people do differentiate less and you see more cooperative bipartisan basis so that happens less. but it was a term in this victory for republicans. i don't think we should overstate. i think we are still more likely than not to get a democratic

president in 2016. the electric keeps going back and forth. we've had all of these in 2006 and 2008, 2010. but the country remains pretty evenly divided, so i don't know if there will be permanent for gemini but it is striking to throw out to some of the members the republicans gained seats in all but a dozen chambers and they sort of took the chambers that have more divided government at the state level to have governors in pennsylvania, bruce browner in illinois would have a strongly democratic legislature but they have 21 super majorities and in wisconsin and the assemblies the assemblies and the republicans have a 50 year high in the seats

in the chamber into the tennessee senate is 28 to five. it's really striking and a lot of democrats ran. some of them were close but the republicans won and so they won't feel any fear of a backlash from the type of austerity but i was talking about earlier. >> if we are coming into the air a in the off year elections and presidential in the midterms you have a much smaller electorate and it tends to be more conservative and in the presidential years it's more diverse it tends to be more democratic leaning most of the gubernatorial races are in the midterm. does that mean going forward if they would have a harder time

doing a successful job in the gubernatorial because i think it's only about ten seats up for the presidential. if it's a permanent smaller and more conservative electorate what does this mean? the >> it's striking what we we expected in the off year that it would be the presidential year and we heard so much about the democrats having a strong coalition with african-americans and hispanics and single women and young people. the electric people voted much more republican and there were exit polls in the 21 states on the senate races. there were huge margins in all but four of them and kay hagan in north carolina got 33% of the

vote. the hearts wednesday wide even in the state with a strong population and the democratic share of the vote was down 10% from 2008 so that is a problem how the changing country favors the democratic party but there's still a lot of white voters here. >> back to your point about the candidates that sort of took the success for granted and you can't take anything for granted. >> we want to talk about the state level ballot initiatives that we want to have time for a couple questions right now if you have any questions about what we've been talking about.

>> [inaudible] >> the question is about the geographic distribution of the democrat folks into the gop votes. how does that affect the races? >> one reason we were led into thinking it's because the pollsters don't give a good of a job in the overall areas into places like kansas. so in terms of the actual vote we talk about red states and blue states. i live in missouri where st. louis and kansas city, these little coastlines on the state borders and 115 or so red counties in between. so, almost i think it is all but

two of the eight statewide officials are democrats. that's where the people live in the population centers. but that's just a lot of republican territory. so they already have a super majority in both places and this is partly why we have such different maps. they are voted for and not just in to votes have been that the urban centers including the dance suburban counties and fairfax counties of the world are voting so strongly democratic. about you have a small area so it is a hard drawn map that gives you a lot of legislative

seats and sometimes you can outvote the rest of the states but you have to turn out to do that. i don't know if that gets to your question but it's a huge challenge in very limited places. >> i like that red states and blue counties. >> how do you see the publications managing, how are they going to interface and the new majority you always hear they want more transportation funding and tax reform. >> how do the state issues sync up with the national priorities?

who >> you have now i think it is going to be 31 governors on the gop side said so that will have a line of communication to the folks in congress. on the other hand is the idea that in general republicans don't like to spend money so this goes back to my point before how much leeway the party is going to give the governors and state legislators that need to expend money on certain things in their state that runs contrary to the general philosophy that you don't want to spend too much. it will be an interesting area of tension. they may have different areas they stand. >> we will take more on the

panel but right now i would like to bring up caroline. as i said as the senior editor and she coordinated all of the coverage this year in the state ballot initiative. we have this dichotomy of the voters pulling the lever but for the more progressive issues, right? >> it's interesting because despite the republican wave, the voters in the red and blue states passed a number of the bubble ballot measures. one of the more popular at the top of the list is marijuana legalization. there was alaska and oregon went to colorado way and legalized mob just possession but also, not just possession but also the

sale of marijuana and washington, d.c. legalized the possession and allowing home growth of marijuana in small amounts. what will be interesting in dc is whether or not the congress decided to intervene but whether or not the congress does intervene in dc as well this is an issue that won't be going away in the next few years especially tuesday. in the next go around in the five states in massachusetts, nevada, california, arizona and maine, specifically on the marijuana legalization. and interestingly enough after this year will also be fishing for legalization and the legislatures. that's something that's never happened before and it's always

passed by the voters and they are targeting states in the northeast. that will be something really interesting to watch. >> and other of the categories was more progressive issues in the conservative state on the kind of labor issues and income inequality. can you tell us about that? who >> it was a win for the low-wage workers. four of the republican states are nebraska, alaska, arkansas and south dakota voted to raise the minimum wage. this suggests that despite being such a polarized issue in congress it might be a little more by partisan bipartisan among the voters and the politicians like to think. wouldn't be surprised if in the next cold bowl of years --

couple of years putting the minimum wage on the ballot and passing it that way. there is also paid sick leave. massachusetts became the first state to pass the law and connecticut was the first in 2011 and california follows them a couple of months ago. massachusetts and california will be particularly interesting because connecticut had so many carveouts for nonprofits, temporary workers and manufacturers that only about 15% of the states workers ended up being covered by the law but california and massachusetts are both covering a way higher percentage of the states workers and so both of those states will be kind of a true test of the impact of the paid sick leave on businesses and employers and whether or not it has negative impacts on businesses and their

budgets. we see the layoffs and whether it has positive impacts. >> massachusetts is one of the states that did the first. >> were some of these other areas we have been seeing in terms of the more progressive for the ballot measures? who >> abortion is not surprising because there were two initiatives one in north dakota and one in california. they were personhood initiatives which basically what would have effectively criminalized by defending a fetus as a person and in both states the voters rejected it. it is surprising because of the republican wave but it also is not really surprising because

the personhood initiatives has never passed on any ballot in any state ever. there's also gun control. only one state voted on gun control and that was washington state and they voted to pass universal background checks. this is something the congress tried and failed to do and this is something only a handful of states have done themselves. it's the lesser extreme of gun control measures and washington state did have a shooting a couple of weeks before so the voters might have had that on their mind when they went to the polls. also the former mayor bloomberg for gun safety invested millions of dollars in the washington initiative and they are going to be invested heavily getting universal background checks.

>> i know that you've been paying attention to one other set of initiatives. >> it's a pretty good night for the environment. there's a couple states that passed the open space protection funding mechanisms to keep open space open. we had the state of florida that has an existing program that it basically kind of shorted out and i think it was two or 321 and that's with a very close race. so 50/50 but they went to war three in favor of this measure and actually went against a couple of the gop leaders in the state. the new jersey also passed a separate ballot measure on that issue to protect open space. then the state of alaska lots of

stuff happened this time. there was the initiative by the opponents to the major mind and plentiful area and what it did is it that some more severe roadblocks in the way of the mind and that passed in the conservative state. the only one that didn't succeed was north dakota where there was a ballot measure to spend some of the oriole and gas tax revenue for the environmental purposes and that did go down. >> we should mention there was at least one that failed. i know that's something that you had looked at.

>> they had been heavily debated in the past. a lot of the research that says that they posed health risks have been discredited but the critics combated that the research had been tainted by the industry groups like monsanto. regardless of the drug labeling has never passed in any state but with the growth of the movement, the organic movement and people really wanting to know what is in their food people thought that this year would be the first year for the labeling. that unfortunately wasn't a case in both colorado and oregon. both measures to label the gm field. however activists are not undeterred. they will continue the fight in the legislature and possibly on more of the ballots. it's an issue that came up in the 30 state legislatures last year so it's definitely going to

be a big issue next year. only one state has enacted law and that is vermont. but it's definitely not going away whether it's in the state legislature or on the ballot again. >> what were the other big issue areas from tuesday more on the budget management side? >> one was proposition number two in california. california was a trendsetter in the policy whether it's health care or environmental regulations. so whatever california is doing everyone is watching. california passed proposition two which the governor pushed and essentially this means the state is now required to put a set amount of money and revenue into the rainy day fund and they can't touch it unless the

governor declares a fiscal state of emergency. this is passed because the governor could just waive the requirement to save a part of the revenue and not only will the state be required to save the revenue every year but they will also be required to pay part of that saving towards paying off their long-term debt. so this is a big deal for california and a lot of other states are going to be watching to see if it is successful or how successful it is. and already the day after the election the standard and pours raised the rating just slightly but it's directly because they passed proposition two and in the great recession they dipped into the rainy day funds and they are looking to put some money back in there and they are

thinking about the smartest way to do it and pay down the debt they have and california might be the way that they take it. >> i know that transportation funding was a big issue in a lot of the places. but for what were some of the highlights? >> they were kind of a mixed bag. like they were talking about earlier it hasn't been raised in about 20 years. most states haven't raised there is in about 20 years and at the states that the states are constantly worried about finding money to pay for the vote for debate coverage repairs and it's an issue the voters cared about and there was good news on tuesday. texas, wisconsin and maryland at the voters approved to increase

or protect transportation funding and in texas beer going to put revenue for the new towards transportation and texas particularly has big traffic problems brought on by the oil boom so that's a big issue and again in wisconsin and maryland they voted to basically lock up their transportation fund so that they can no longer be used for general purposes which is something that often happened in the past. there was bad news on tuesday for the transportation funding however and that was in massachusetts. massachusetts a few years ago tied to gas tax increases to inflation so that every year essentially the gas taxes would

automatically increase without the legislature having to vote on it. about a dozen states found ways to automatically increase. some are tiny next to inflation and others are using policies but they repealed the increase on tuesday which means the gas tax in massachusetts will raise but it won't keep up with inflation so that will be a problem in the future when states are struggling to find money for transportation and it would send a message to lawmakers and other states and in other states and it could make them a little more hesitant to consider policies and tidying the gas tax to inflation. it's going to be a struggle as it is every year to find money for transportation especially

when the highway funding bill expires. >> there are two other other initiative i want to touch on because they set up interesting fights and decisions into both of those are out of arizona which unsurprisingly likes to test the waters. what are we talking about in arizona. >> this was kind of an anti-obama anti-federal government. that isn't highlighted any more than these ballot measures. the one that underscored that the most is arizona passed a law that allows the state to opt out of the federal law of its choice

that means they don't like obamacare and they can pass a referendum or the legislature can pass a bill and then all the counties will be banned from spending any of their money on enforcing obamacare or the federal clean water act or whatever but this will be interesting because obviously it is sure to bring some lawsuits and the constitutionality is sure to be challenged. i don't knew the day has yet but give it a few weeks. arizona has a long history of defining the federal government and asserting their state sovereignty.

the other issue is arizona passed a right to try law and a couple of others passed the ball but arizona was the first to do it at the ballot box. >> if you've seen the movie dallas buyers club this will make more sense that the right to trial means terminally ill patients will have with doctor approval access to drugs that have passed some clinical trials but have not yet been approved by the fda. so in a way this does underline the federal government authority but some in the medical community say that in the long term it might undermine clinical trials and people participating in them because they might be

less willing and less effective if they don't get the right people but that is an issue that is also going to be pretty big in the coming years and activists are pushing it and it's an issue that isn't facing that much opposition so i would be surprised if i saw it pass in many states. >> the previous measure about opting out of any federal law is that what state would end. would you want to talk about local elections and measures? this republican wave that we saw at the congressional and gubernatorial is that something that continued? >> they were more liberal

leaning but it's not a huge year everybody has the current story about pittsburgh about bill who was with bill de blasio in new york and in boston and minneapolis and you go down the line and they all weigh in on the similar pre- k. inequality platform so the big cities talking about how they are more democratic and almost every big city mayor is getting even more progressive mayors elected so there were not a ton of important elections greg fisher won and we know and i don't know

if everyone saw the news that the former mayor was picked yesterday by the white house to run the office of intergovernmental affairs. providence got a lot of attention with its race because the former mayor was innovative but he tried twice to leave office because of federal convictions. he ran in the republicans endorsed him, the republican nominee said i'm voting against myself. [laughter] he one in oakland. jean has never been a popular mayor. they do their choice where you pick first, second and third so she came in second choice and was beat by the aid to jerry

brown. santa fe was interesting. chuck reed has been a big pension reform proponent. they won with 51.5% of the votes they won't roll back the pension reforms and phoenix voters there is a measure to the guessable employees and suicidal plan that was voted down. another subject but dallas county district attorney was famous for having a wrongful conviction unit that exonerated about 35 people. he had personal problems in a car crash and used county funds to pay for the settlements of his opponent says she will

continue the exoneration work and that was the real issue and i mentioned earlier i'm from st. louis comes as and when this county had elections and michael brown was killed on august 9 on a saturday and we had the primaries the tuesday before steve sanger won for the executive beating the long-time african-american incumbent. and the county prosecutor had an opponent primary and of course the conscious social figure for throwing the case to the jury rather than deciding whether to indict on his own with the authority to do so soon it became a very contested race. the republican nominee was a

state house member and stanger keeping with the theme was extreme. some of the officials in saint louis county and worst stanger out of anger for the party but also keeps close with the prosecutor and in general frustration about ferguson and all the problems but he got the key inducement from the congresswoman in saint louis and held on by less than a percentage point. so these heavily populated counties and just to run quickly in the ballot measures.

seattle voted for more transit and the atlantic area for the first time with clay county voting for a sales tax increase on that. there were bands passed at the local level and humboldt county california and hawaii and there were a couple places in california and texas that voted on the lawsuit and finally there were tax measures in san francisco and berkeley that were precedent-setting so the majority voted but it required a majority for the tax increase but berkeley did vote for the

tax. most was from the beverage industry that michael bloomberg of the enemy of the big goal putting 400,000 associate professor 25% of the voters and in this quote in the chronicle roger salazar who is the spokesman said san francisco would have mattered about i don't think people would say that's what any country would do it's hard to believe the charmer like that was also not successful. [laughter] other than free pot for poor people is there anything in the

mayoral elections? >> we will have this how do you manage up if you're -- where you stand depends on where you sit and do so if your a mayor in a big city in a state with heavily republican state government, what do you do and how do you work that and of course caesar always hated by the state anyway i think that will be a tricky area for people to navigate but i think that in general the cities will be the blue lights of democracy while the states are the red labs and democracy. >> we will take more questions at this point. who has questions at the state level, the local level, any of the initiatives that caroline ran through? >> you mentioned the

transportation association and we are very excited considering the federal gridlock lately of the state races and ballot initiatives. do you see given the mixed bag them taking up different issues such as the toll and the sales tax in some of the northern states like michigan and? >> i am not knowledgeable either you will know more than we do with the states keep wanting to build roads. it is a key priority. they push pushed for it and we've had a lot into public-private partnerships and i think that will be an area talking about tension between the states and the feds and they do want money for transportation but have you read anything of recent work will be the sources

of the future? >> it's always a big one. >> you sort of made the point that voters seem to be willing to set aside money that already exists for transportation or protect transportation funding from being used by other sources but maybe less excited about increasing revenue for transportation. >> one interesting thing to note is that the tax increases at the state level generally are hard for voters to pass are unwilling to pass pass but at the state level and at the local level in particular voters are much more willing to pass the tax increase because of the local level they can see exactly where that money is going to. they can see that it the bridge i drive over everyday to go to

work or that's going to expand this road where i sit in traffic every day so i think that is one take away on the transportation funding that is really important to note that if you are trying to get the voters to pay for it which is always hard to give it much easier at the local level. ..

was a georgia a year or two ago had those regional transportation taxes the failed. they tried to be strategic and have these long lists of specific projects of people would know where the money was going. of course, that backfired. that's not my county. it's tough but everybody wants roads, nobody wants to pay for them. >> and it's never local enough. even in georgia i think it was a nine county region or 12? >> they split the state to multicounty region. >> if it's not my road or my commute -- >> other questions? yes. >> summit. >> i'm wondering what you think are the biggest and most significant takeaways on health care, whether it be federal, state and local, you know, aside

from the obvious obamacare potential. what are the biggest takeaways that you see in this area? >> on health care, is that -- >> there were a couple of ballot initiatives and those were mostly in california and health care. both of those failed. there was one to give the insurance commissioner the power to reject excessive premium hikes, and this is something that insurance commissioners in other states do have, but in california they rejected that. and interestingly enough, the health exchange in california actually opposed this ballot measure. and that's because it gets really complicated, but they believe that, but in the end would actually be, that if the insurance commission has the power to reject them and likes

in california then it would put too much restrictions on the system, which would eventually, which could raise prices, premiums in the end. that was a really interesting one. >> i think it's going to be really interesting to watch. so much of the republican argument against obama to is that the change to the health care system take away health care from people, you know. and if the republican governors who are either newly in office or who are new, newly emboldened, if they decide to cut back or and medicare expansion or whatever, they are going to be dealing with, having to take folks health care away. and even in a conservative state it will be interesting to see whether that sort of approach flies or not, particularly

arkansas where they had a sort of the private sector approach to the medicaid expansion. it was passed a sort of a compromise between the gop legislature and the democratic governor. it nearly got overturned partway through even after it was put into place, but now whether the gop governor and, strengthened gop control of the state legislature, if they're going to pull that back it's going to take away a lot of health insurance and people and it might be seen as critical. it may not fly. i'm not sure. >> a lot of people rant on the. a lot of the state legislatures ran on ending the. the private option would expand medicaid but it took the money from the feds to apply to private insurers and that was seen as a possible workaround model for the places but it was a real issue in the state raises.

arkansas from a fun fact, the governor -- the legislature just flipped two years ago and they got speak majority and newly elected government. that's the first time the state is republican-controlled since 1854. of fun fact. there will be continuing tension that people either have it or could be getting it to obamacare, like say they're sort of the cash flow incentive for states to go with it. we will see some governors, mike pence, i'm blanking at the moment, another group of can governor, utah that was negotiating on what terms they will take it. but one thing to watch i think in health care is chip, children's health insurance program, which is kind of suppose to go away under obamacare as they the kids would be covered under medicaid expansion but that's not happening in a lot of states. so funding expires and will that

be a priority of this congress, this next congress? i don't think it will go away, i'm guessing, but whether it will get the funding it's had, it's been very much expanded in the obama years and i don't know what will happen with chip spent another interesting take way regarding medicaid expansion from these elections is that while because of the republican ways it's unlikely we're going to see a lot of new states expanding medicaid. what is at risk is the states that are have expanded medicaid. but in a lot of those cases it's not message of because the government has come out against medicaid expansion and saying he wants to repeal it. it's oftentimes legislature. so be really interesting to watch what seems like is going to be some battles between legislature, republican legislatures and republican

governors who, you know, many have said i'm not message to against it, i'm going to watch it, i'm going to look at the numbers. and even a lot of republican governors have adopted medicaid expansion. so it would be really interesting to see how that pans out in the states that have already expanded. >> i think we have time for maybe one more question. >> actually if you just wait for the microphone. it's on its way to you. >> so i'm going to take a different path with this question. instead of a managing up, what about trickle-down? one of the areas that has potential agreement between the white house and republican majority is tax reform. and how do you see that lining up with a lot of the local initiatives priorities? i will take transportation again as an example. the last time the transportation federal gas tax was raised i

think was in 92 and it was kind of a tax reform initiative. and in previous congresses, same thing. previous initiatives. how does that light up with not just transportation but also some of the health care issues you been talking about? how is this going to impact the new legislatures? are they going to have a priorities? >> louis, i guess that goes back to point, we will see how nationalized these elections get but the of any other thought about kind of on the specific kinds of issues and what you see in terms of trickling down from d.c. or out from d.c.? >> i think it depends on a certain extent on whether the president and congress decide to pursue policy as opposed to skirmishing for their positions in 2016. >> do you want to take bets on

that? >> exactly. i mean, there's certainly an opening for some serious policy, serious poly advancement and -- policy it has been government but we do of the presidential election coming up and open seats, it is going to be a lot of pressure on congress from presidential candidates and so forth to try to fight the next battle instead of trying to actually consolidate gains and sort of make policy. >> well, think we're going to have to end things there. i like to thank alan greenblatt, louis jacobson and caroline cournoyer, i think all of you for joining us for governing elections briefings this morning. thanks so much. >> thank you. [applause] [inaudible conversations]

[inaudible conversations] >> october jobs numbers are out of this one. the labor department reports of the job market added about 214,000 jobs. also dropping the unemployment rate down to by 20% of the

lowest level in six years. president obama will have his first postelection meeting with 16 congressional leaders including republican leader mitch mcconnell this afternoon at the white house. the ap is reporting they will discuss the agenda for the rest of the year, including the budget and military action against the islamic state. we will have all on camera remarks later. coming up a little later on c-span2, veterans affairs secretary robert mcdonald will be speaking about efforts to improve medical care and other services for veterans. that will be live from the national press club starting at 1 p.m. eastern. also live at 1 p.m. on our companion network c-span can use ambassador to the u.n. samantha power will be speaking about potential changes to u.n. peacekeeping at the american enterprise institute. see it all today on c-span networks.

>> and to capitol hill now with the congressional internet caucus advisory committee examines sexual privacy concerns and the legality of hacking private cell phone photos. this becomes partly in response to numerous celebrities including actress jennifer lawrence having their private photos hacked and published. this is just over an hour. >> welcome everybody. i am the executive director of the congressional internet caucus advisory committee, and thank you for attending this recess break and hope we will get you out of your like within 60 minutes or so.

this topic is on your program which have in front of you, the twitter information is on there as well as is the information of the speakers and a twitter account. you can contact them on twitter or any other way you would like. we are hosting this event by the congressional internet caucus advisory committee in conjunction with the congressional internet caucus and its co-chairs. on outside the co-chairs are congressman bob goodlatte and an issue. the senate co-chairs are senator john thune and senator patrick leahy. we are in their debt for supporting this program. they don't agree on every issue and pointed out on a lot of issues but we are thrilled they agree that the internet should have a place will be can debate these issues with expert speakers like we have today. i want to thank them under moderate today is tal kopan, with political, a cybersecurity pro report and she's covered this issue quite a bit over the past soviets from cyprus to sit down on the revenge site and

choose perfectly situate to moderate today. her twitter account information is on the program as well and so, tal, take it away. >> thank you, tim, and thank you to the caucus for have inherited it but it's a very interesting topic which will be diving into premature first to just introduce our panel sort of from here down on we've got mary anne franks with the assistance of law at the university of miami school of law. to her left is the correct of free expression project for center for democracy and technology. followed by rob pegoraro, a columnist a yahoo! tech. all of these fine people have a lot of expertise on this topic from a lot of different angles which is sort of how i want to start off today. one of the most interesting things about this hack of celebrities is a race a lot of different issues for a lot of

different people. i cybersecurity reporter i covered in terms of password security on the cloud and with the technical aspects of the hack my debate with the dark web was doing with these pictures erase whole number of conversations from misogyny on the internet to what actually is the nature of the crime that occurred in what you look at it from the perspective of as jennifer lawrence said a sex crime, a hacking crime, is there a first amendment issue? i suspect will touch on all those different takeaways today and how i would like to begin is in each of the panelists could so go down and say what for them is sort of the one or two big takeaways from when this hack occurred and burst into news, and how they sort of saw the issues being the most important thing to look at it from. >> so i think a good place, as good place to start if any is

jennifer lawrence collingwood cd whenever a sex crime but i think a lot of people taken aback by that particular characterization because it isn't obviously clear that as a matter of current law that that's true. what it highlighted is, gives us an invitation to think about what we think they crime is, what we think a sex crime in particular is and then maybe thinking of ways we can recognize it as being such. so i think it's interesting to hear from such a howard -- high profile victim of this particular behavior that her own sense of what it was was a violation for a sexual autonomy, the sense of human vision and exposure that she would classify for herself as a sex crime. what i think would be for me at least a perspective i would take on this is to consider why we criminalize certain types of behavior. when we start drawing the line between just bad behavior and really, really serious behavior that we think deserves and needs a response from the criminal law. i would invite to think about that in terms of why we think the criminal law is important. not a narrow focus.

rather a social expression, a combination of certain types of harms that are so serious that was the only ways we can express it as a team unity is to say they should be against the law, and to think about the particular nature of what happened to lawrence and other victims not so high profile as her but in terms of the daily suffering and daily humiliation the have to experience that they can never get back, there's no way to undo what has been done, that the harm in these cases and is in most cases irreversible and ongoing. what i hope we can do to friend this conversation by looking to a perspective of the victim is to think about why we might care about the fact that sexual humiliation has now become an entertainment industry and what are responsibly is as a society and as people are concerned about having a free, open, democratic, equal internet, what we should be doing in response to that. >> thank you, and i thought it's a very interesting how professor franks is talk about looking for

social expressions of confirmation about this kind of behavior because of that to me was one of the major difference is i saw in the response around this most recent exposure of celebrity photos compared to how this issue and how the nonconsensual disclosure of newt images has been treated over the years. five years ago or so years ago when many of us seated at the counter started first following this issue it was very difficult to get people engaged on the question at all. there was just not a public conversation about how is this being used as a way to try to go after women, to harass them, to silence them, and to see that shift in the public conversation about there is much more willingness for major media outlets and for people engaging on social media to be talking about the other side of the story, to talk about, no, people

shouldn't be going and following these links to the information might be out there on the internet we don't have to click the link and go see it and to really treat what has happened to the people whose phones have been exposed as the real harm that's happened to them. i think it's a good thing generally that would have been much more of that conversation happened in public and in society truly appreciate as professor franks is saying the real harm that is happening to women when they are targeted in this way. and then, of course, the concern that i see coming from a first amendment and open internet background is wanted to see if there are proposals on how to take a stronger response to this, ensuring that whatever those proposals are are not so broadly crafted at the end up pulling in a lot of protected expression as well. it's very difficult to craft a law that goes after, that makes the crime of disclosing information in a way that only

gets after a bad or a malicious disclosure of information and doesn't also sweep in a lot of vital and important speech. i hope and important speech to a help wanted things things we could focus on today is looking at what our already existing laws that really to identify the kinds of harms that happened whether it's a person trying to inflict emotional distress coming personal launch a campaign of harassment against him, whether there's a federal computer fraud and abuse act to cover the hacking aspect of things. there are ways that we've addressed the harms that can come from this kind of behavior in existing law that don't entail focusing specifically on the aspect of it spent my first reaction was there was this, oh, it's a bunch of celebrities in trouble response which i thought unhelpful and stupid because i'm sure no one in this room has pictures they don't want shared with the entire internet, just

with her friends on facebook or maybe some of those people in facebook. and that's i think a better way to look at it because if you just, calling celeb the gate was one of the stupider gate buzzwords thrown around the looking at how exactly apple security is set to because one of the things, if you want to keep your information safe, there's tools available that actually help. and apples case in the time they had a we that are really weak two-step verification. if you had done it, they've done all the things people try to, it didn't protect icloud backup and always icloud works, i have a i put that on and have a i that i don't and i'm not entitled to what steps getting back to in which buck and i control. it's a very okay consistent and so you had this case were these people didn't think they're putting pictures on the internet, and it's not always clear and a lot of clout services where did your day to go? there was a story in the "washington post" earlier this week, security experts, a photographer from johns hopkins

university didn't know that apple was saving a working copy of these notes is taking in text on icloud. he thought this was on his own computer. this is a guy who is paid to know this stuff. to legally speaking all we already have laws against unauthorized access to computer systems. one of them cfaa is not my favorite will ever. i think it does affect this sort of thing at the same time we also need, i know not everyone is going to go through the hassle factor of two-step verification but it should be there. it should work and you should know what it is protecting and what is not. >> i guess i have less to say about the specifics of the lawrence incident. one of the of the things that's on this sort of within the purview of this panel is a related question, a broader question about, as i just

professor franks called it, this sort of epidemic of sexual humiliation sites on the net. the revenge board, the up skirt photo sites, those kinds of things. which i think is a serious social issue. my thoughts turned i guess with emma to the first amendment first of all which as she said, crafting even if we think this is harmful, crafting prohibition that would survive first amendment scrutiny with respect to much of this material would be quite difficult, probably not impossible but difficult and would require some care to make sure it doesn't sweep in a good deal of protected material. i got involved in this. i had a student who was working on actually a project on

copyright, possible copyright remedies on these weekends porn sites, can you take down photographs based on copyright claims. i spent half an hour, 45 and poking around at those sites about a year or so ago and there's a good deal of material, at least on the stuff i sample very quickly exclude protected speech. there's so much of that may not be. drawing that line would be challenging i think. so that's one thought i had. and in a discussion about these issues, and there has been a good deal of discussion in the legal academy at least, about what to do about this, what kinds of remedies can we provide. the conversation and debate has moved often quicker to the question of websites operator liability for hosting these photographs. there are existing, we can get

into the more, the rest of this session, there are existing toward remedies that may provide relief to people who have been harmed against the individual up loaders of the private photographs that are being posted. but section 230 of the communications act has been construed and i think this protect the website operator from being drawn into that tort liability. it immunizes the website operator against a broad range of tort liability including this comment so much of this discussion has come around to people arguing about whether 230 should be one in us both repealed completely, modified to allow actions against the website operators. i think it's a very important internet law problem because many, many issues have this

feature where the intermediaries, the website operators typically, are helping to spread this harmful information, and yet federal law immunizes them against liability. i hope we can get into some of those 230 issues during the discussion. >> great. as we can all see there's quite a bit at play here. perhaps we can start with, you know, and it's got a difficult in this case because we are sort of going from a very specific instance, right? this was jennifer lawrence have private photos in what she believed was a private place and was gotten into by someone else and got on the internet. that is a different situation than a lot of porn cases where someone sent a private photo to someone else and then after that relationship went south, something happened with a private photo. so the photo was initially sort of given with consent. that's very different than someone hacking into a private

computer that you may not have stored something on the web. it's a different if someone cast a password because you used your dogs name as a password versus sort of a sophisticated phishing malware a tactic which is to say that there are a lot of different cases that raise these issues. but generally thinking what are some of the remedies that people who feel that they are sort of private entities and -- private images and private data into digital work has been exposed to the internet, what can they do now under the law to try to get relief, although they may never be able to get it back? >> i think it is really important to focus on the fact that jennifer lawrence situation, and all the other celebrities in her situation are different from a lot of these other types of context. i think it's important not to make too much out of those differences. if we look at this from a more

traditional privacy perspective it should be that difficult of an intuition that when people disclosed in -- intimate information to one part that often don't expect it's going to be given to another party. whether or not that is disclosing to the cloud, whatever that means, versus disclosing it to your partner it really seems the more obviously way to look at this is don't we have some sense of contextual integrity for our privacy? when you go to your doctor if you go to your doctor if you tell your doctor about your symptoms, you expect your doctor will not to anybody else about her symptoms or share the pictures of your medical xm. we have plenty of situations where we can think about it not related to the may be charged issue of women's naked bodies, think about all the ways in which we expect our information should be kept confidential within a certain relationship even if you voluntarily give it to one party or to other parties. i think when we consider it that what its opel to think about what we did in of the context. do we protect people's credit card information? do we protect social security information? do we protect home addresses,

company's trade secrets? is always we might be disclosing information all the time to certain trusted party but we have criminal penalties when people step outside of those particular context and i think it's useful to think about why we should or should not apply those remedies here. it is true we can come up with ways for victims who talk about copyright remedies, for them to talk about things like suing for emotional distress. most people can see that with the particular types of behaviors it's difficult to talk after the fact of any type of remedy. copyright is going to maybe work for jennifer lawrence. it's not going to work for the vast majority of victims of really no recourse but it takes some time to get the notice and takedown progress. you need to have a scary lawyer back your. many private citizen will not have the clout and when you get removed from one site it will pop up on 20 others. copyright is not an effective solution for the vast majority victims. this is not just going to be a

situation of relationships gone sour but actual ongoing domestic violent relationships that are being used to trap people in these relationships, used as extortion to keep them from reporting physical abuses to the police or exiting the relationship. we've seen with that plenty of sexual assaults being record and being broadcast but this is a very big category of devastating a commitment to that is getting out there, and the idea that there's any kind of lawsuit or copyright remedy that some i will be responded to that particular harm i think is a bit naïve or at least somewhat abstract given the actual victims experiences have been but i also think it's important, begin as we're trying to think about adequacy of legal remedies to think yes, completely about first amendment values and the goals of section 230. and in that thinking consider how much of an effect, i was a disciplinary effect, these types of arms are heavy on women's speech. how many women are now afraid of everything intimate with anyone or having their web cam hacked

or having someone have a hidden camera summer recording them having sex and maybe taking pictures up their skirts? how many women are afraid to commit themselves truly to their careers or to online discourse because they are afraid that this is what's going to happen to them, this is the punishment that will be given to them and the laws best response will be, maybe we can clean up the response afterward but we probably can't. i think that's really a sense we have to take seriously about how much this is affecting, of course not only been because there are male victims but the real epidemic is using the threat of this type of behavior, using the actual use of this behavior as a way to shut women up and to drive them off line and has a free speech medical as a section 230 not in the interest of fostering open discourse we should be hearing about that. >> if i may disrupt the order a little bit just we mixed it up. if i jump down to david.

if you go in depth a little bit more on some of your opening statement, what are some of the ways that the law as it stands has tried to grapple with some of these issues, and what other ways people looked at adapting laws that were crafted long before the internet was what it was today to some of these problems that are a little more unique to the internet? >> yeah, and i think the hacking, hacking side of the problem, the computer fraud and abuse act is one, this may well have been in this specific instance of violation of the computer fraud and abuse act, accessing a protected computer without authorization gives rise to both civil and criminal liability under the federal code, and it could be applicable. i'm not giving anybody legal advice or take a position on whether or not it is, but that's sort of one avenue. there are also, i guess on the

port side -- port side, several people have mentioned company there are a number of state law tort remedies for some of his behavior, intentional, emotional distress, outrageous conduct, outrageous activity. i think is another. i guess there's a word in response to what marianne said. i think am i completely agree, to think of copyright as a solution to this problem is naïve and not very sensible. but let me just say that the copyright act is one place in the federal code where aggrieved parties can quickly arrange to have, without a lawsuit, quickly arranged of material taken down from the internet.

notice and takedown procedure in section 512 of the copyright act is a very powerful thing. so if you have a copyright -- i'm not saying for all the reasons there in that you can it probably covers a small subset of the problem but i think it's not a trivial subset of the problem where people can, in fact, at least there is a remedy that is useful in terms of removing material that for one reason or another they believe they have a claim on. notice and takedown procedure most websites operate automatically. you send a message and. they have to more or less give you some procedure to -- the websites have to give some procedure to follow. the copyright community, they must do so. it gets a generally speaking millions of times a day, this operates to actually remove the material from the site. one of the very quick, and want

to make about the notion again, mary ann was saying does the law have to wait until something happens, something bad happens before providing a remedy? i think in this context the answer may well be yes most of the time. because this is a lot of what we're talking about falls into the category of protected speech, or speech. there's a very strict problem with sort of a prior restraint doctrine that says you can't put it up in the first place. that would avoid much of the harm. that raises even more serious first amendment problems and sort of exposed regulation of its which raises its own problem. something that has to be taken, have to be thought about more carefully. >> and rob, you could toggle bit, you mentioned the computer fraud and abuse act. hacking, i'm so reminded of some

years ago when sarah palin's e-mail address i was also hacked from what we understand it very -- very similar fashion. >> is wasn't guessing. if you're going to use password recovery questions and java wikipedia page, don't have the answer the on that page which, i mean, hopefully we'll all be in a position to make that mistake at some point. >> the point being that would put a lot of information on the internet and don't always think about the levels of security. what are the levels of security for information on the internet? how does the law protect those right now? >> cfaa, a lot of people's complaint with it is it so overbroad. did you read the text of the, it basically says that the computer might be on the internet and you use in a way that wasn't specifically authorized by the people who owned or controlled, then you can be charged under

this, which leads to a can criminalize a lot of basics a good research that needs to be done to solve the problems we're talking about right now. if a webpage is coughing updated because you entered the right input, that can be a cfaa crime, even though you have to do that to prove to the owner of the page hey, you have a problem here, fix it. i was in this case the problem is not that existing laws don't protect us. a sweep in whole bunch of other stuff that's coming in, it criminalizes activity that people than white hats need to do to stop the people wearing the black hats. >> certainly as well because there are so may cases it can be hard for prosecutors to figure out which ones to bring. >> how many tax dollars to waste on prosecuting aaron swartz, you know, you can say he was being not very nice with harvard i.t. system that this was about to put a laptop in a closet to

download academic research to make it publicly visible, taxpayer-funded research probably. it was a cfaa prosecution, he was since his seven years in jail and committed suicide. >> moving into a little bit more of sort of, now that we've some sense of the lay of the land, what can be done to change the laws and address some of these issues. emma, if you can talk about, you mentioned a little bit when laws are being crafted. it's very important to understand what you are sucking in unintentionally. there's been a lot of effort not necessary at the federal level but at the state level to try to figure out a way to write laws to criminalize some of his behavior with different levels of success. if you could give a run down on what's been tried and what the pitfalls sort of come from. >> ashore. i know that professor franks and also a professor at university of maryland school of law have

been working very hard to figure out is the way to kind of craft model legislation that would allow going after, you know, only the identified criminal activities that they want to talk with this sort of law and not sweep in a whole host of other speech. there are key categories you to think about in this sort of law. what kind of content is covered? the content we are talking but is generally content that's protected under the first amendment when it's created. a person taking a photo of themselves or of a partner of theirs, the new damage of a person is constitutionally protected speech, and there's certainly no crime involved in the creation of the image at the outset. so trying to define a set of how is a sexually explicit imagery companies and imagery that reveals different types of nudity or sexual activity without nudity?

there's a lot of back and forth over what is the exact nature of this content, and it is difficult to define because there is a fair range of the sort of photos we could all think of, of ourselves getting exposed to others that we would see as a harassing sort of effort. so trying to define the category of content that would be protected so it's not so broad to include things like a photo of a woman breast-feeding, or some other kind of nudity that you might very well be able to capture taking photos in public places and really try to focus in on images that are in this sphere of intimate exchange that the professor franks is talking about. it's also who is potentially liable under these bills? is the question. seems clear that you want to be looking at the person who uploads the photo out of the consent that they have or

haven't received from the person depicted in this is but there's also a question how these laws try to go by the so broad they start sweeping in the website where the photo is uploaded. does it sweeping any person who looks at that photo may or may not know that that photo was uploaded without consent? so i think just to get a couple of examples of laws, there's a virginia state statute that was passed with that i guess went into effect this summer and i can the first prosecution of the law is under way. it's a relatively narrow law that includes requirement that there's an attempt to coerce, harass or intimidate a person by displaying their image and tries to define exactly what kind come with the kind this sort of image would be. and so it's an attempt to draft a fairly narrow law and i don't know if it's been challenged yet

under the first amendment by any groups. on the other hand, the state of arizona also passed a law that was again, it's a nude photo law, trying to restrict the ability for people to share new -- nude photos without peoples consent. it would make the display, publication or sale of nude or sexual images without the consent of the person depicted a felony. that was sort of it to the law. that are no exceptions for newsworthiness, no real acknowledgment that if somebody posed for a photo for an art exhibit and they clearly have given their consent to the person taking a photograph to be included in the exhibit, if someone else then host the exhibit online they haven't got the consent drug to the model depicted. it's implied, part of the process of being a model in an art exhibit. but under the letter of the law as it currently is in arizona that website that is hosting stills from the god we shall

could be in violation of the law. so it's done with the best intentions of wanted to get to consider people depicted in photos before those photos are shared but not really done with a view to just how much sharing of images happens in the way that doesn't violate the initial consent but also doesn't involve direct explicit consent. so this is getting old into the weeds of the law but these are the kinds of things we have to think through if we are looking at is it possible to craft something that really does vary narrowly care and to anticipate all of these unintended consequences. >> mary anne, if you could pick up on that and talk about what some of the efforts have been to change law at the state level, and if any of that can be translated on a federal level. >> yes. definitely to emma's point, this is a difficult task because narrow drafting is always difficult but i'm sure everyone in this room knows that the you

can start out with the best intentions and you might end up with something that is not that great. that is certainly true in the organization for which i served as the vice president, the cyber civil rights initiative, we published a guide for legislators trying to make little element we think really are constitutionally sound a protected for victims and what are the pitfalls we think these legislators should avoid. any of the points in one made we've been making for quite some time. there needs to be a very narrow definition of what is considered sexually explicit material. we need to be clear about who it is that's responsible for this type of criminal conduct. we need a certain exceptions, including exceptions for the public interest which is a broad exception but chemically things like law enforcement or newsworthiness. but there are a couple things we might diverge. as much as a great arizona slot has problems and it has made the news recently because the aclu is now suing it, so we can look about some of those problems are. there's no public interest exception in the arizona law. that was a mistake and that is

when they will probably fix. as for the rest of it is not clear that there would be as many problems as the aclu and others are trying to make it out to be. the exceptions include exceptions for images were disclosed in public or commercial settings. so really anything we're talking about is a model shoot, photography exhibit, none of that will ever be a problem. the question of whether a check to get actual consent from the recent person every time it's also not true in the arizona law because the law says it's when you knew or should have known that the image in question was disclosed without consent, it's a good standard to consider special if we start thinking of revenge for the suspect if you are on a revenge porn site and she says -- you have no idea and you will disclose that or share it you have a pretty good sense this is a nonconsensual image and that's exactly the type of behavior we're discussing. as to the question of who should be responsible, as many of you know because of section 230 which allows for a lot of

community for online intermediaries commissars state criminal law, to 30 will always trump and none of these state criminal laws pose any threat to 230 immunity to treat headaches because people might be confused but they can't actually prevent 230. that's not going to be true if there's a federal criminal law that gets passe passed because n as many of you know section 230 is not absolute. it does not apply to copyright but it doesn't apply to electronic privacy communications audit also doesn't apply to violations of federal criminal law which is why google, facebook, twitter all have to care about child pornography laws because section 230 does it write them up like a check for the. i think we can agree that's a good thing. one want to emphasize here is that while it is true that we have to care about what emma is calling unintended consequences, sweeping into too much speech, that is to every single law. there's no such thing as a law that doesn't sweep in something that we're probably not going to like sweeping interview question

always has been not just in the first amendment context but also in criminal law generally, on balance our we are publishing more good with this law than we are a comp wishing bad? to suggest or have a response that says any time you suggest to some of that they might not be able to disclose whatever they want, that in means a disaster for us as a democracy or for the internet. that hasn't proven to be true in many context and one we can take we discussed already is notice and takedown has been going on for sometimes but many people were convinced it was going to shut the internet down. it looks like the internet is doing okay even in light of the fact that notice and takedown is, in fact, a very powerful tool to get people to stop saying certain things and expressing them so but same true of child pornography laws, sending the gambling laws. and, frankly, the same thing, it's true but trade secrets, identity theft, voyeurism. all kinds of situations in which we have for quite sometime accepted the fact that disclosures of lawful

information can be criminalized. everything about the identity theft context, none of us want to be criminalized private social security number or having a credit card number and we're not. but if someone takes that information and uses it in an unauthorized way, would you say that is criminal. this is not novel. may be the only thing that is novel is when i did with the type of conduct that is primarily directed at women and trying to trade deficit as we would treat other types of sensitive information, and perhaps we are resistant to giving the same rights but that maybe shouldn't be the way we would approach this. we need to think about what we count as privacy, what we consider to be the social value of saying you cannot disclose certain information. of us want to live in what was on the identity theft protection, no medical records protections, no confidentiality protections at all. in other words, we are living in the world in which we restrict speech all the time but the question really is when is it worth it on balance to restrict

the speech or not. some people will say that that's not what the first amendment does but effectively it is what it does because there are situations that only when the supreme court has said on balance for defense of these types of fonts and consequences but also many times people don't even bring up first and questions. how many people think that spam is the first and then issue? how many of you think that -- other than david, thank spam is a first amendment issue is a rare thing? so it's a question generally speaking about the criminal law, copyright, about our law generally. do we think that what's going to happen, the people we're able to protect the types of values were able to support are more important than a few things that might happen otherwise? that being said wan i do want to tribalized were understate the fact we do need to thank as much as we can about unintended consequences so let's remind ourselves that no law can never accommodate every single unintended consequence. there's always going to be some measure in which we're going to

be depriving people of some measure of the liberty because that's the way that laws work and a fortune most of the time when we passed new laws is because our society has come up with terrible waste to other people and we can't so we say we're going to let that happen because we are all full up on and we don't want any new ones. i think it's a question of trying to figure out how we traditionally treat privacy, confidentiality, intimacy and why we're holding off on doing that here. >> just a very quick response. obviously this is a contentious, i guess a difference of opinion that's not going to be resolved in a 15 minute program, but just to focus on what mary anne said about looking for ways to craft a law that is more benefit, is more benefit than harm, i would take the position and i think it's supported by loss of authority that that is precisely the first amendment does not ask your it doesn't say weigh the

good against the harder it has a higher threshold. merely showing that harm, you know, the good outweighs the bad this sort of what the first commitment is a thumb on the scales of that determination, and i think it does make it more difficult. it's not simply enough to say that this is preventing harm when the harm his speech related. we require more. we require more precision in the drafting of the statute to do everything possible to ensure that protected speech, everything possible to ensure that protected speech isn't swept them. once we do that, if it's an economic crime, we don't have to be at that precise. maryanne of course is right to know law is perfectly precise and gets 100% of the bad guys, 0% of everybody else. but in the first amendment context we require efforts to least move in that direction that are i think would be

difficult in this context but not impossible but very difficult. >> section 230 came up again. i don't know if you wanted to pick up the conversation at all as how that applies. >> just to say that section 230 is one of congress is great lengths the achievements of the past 20 years but i am prepared to say that. i think it is in large measure -- i don't take it gets, congratulations and all that. we are all in congress bashing mode all the time, those of us at least, other than those were sitting in this room i suppose. but section 230 was of critical importance in helping the internet become the internet. in 1996, you could now face the,, twitter, you name it. the explosion of user generated content on the net was simply unthinkable without protections against tort liability. there are many reasons to think

that -- there's an active debate of course about whether it's very broad immunity for the intermediaries is a good thing or bad thing. i guess one thing to consider as part of that debate is tweeting that law a little bit, an exception for this, an exception for that, an additional exception for something else probably makes it the way in rapid order. immunity will disappear. there are lots of claimants who would like to see section 230, lots of people who are caught, people have been detained, people whose privacy has been invaded, people who have been scammed, people have been defrauded, all sorts of things, it would like to see an exception for their harm, as it were, caused -- carved out of 230. they have a good argument. why can't we just make sure that there's a remedy in this case? i think once congress goes down

that road and start carving out exceptions, the floodgates will open and 230 will largely disappear. i think that would be a dreadful thing for the internet spend our well-connected friends in a game well-connected friends in edumacated have suggested all kinds of weeks to dmca that would put all kinds of obligations for websites. they have tried and that hasn't worked. i'm a little interested in how can we use the laws already on the books that prosecutors can already go to court with to make life as painful and expensive as possible for the people who went after these ipod users and other like-minded creeps. >> i just want to build out a little bit on section 230-point, to give an example of why those of us who are such staunch defenders of that block of what will it really plays but if you imagine, we take a person or a website operator who knows what

should've known that this photo was shared without consent. take that standard we were just discussing. if we had a law that said, imagine i run my own photo hosting website. i agree what i hope will be the next instagram to i've got something way better than filters. i don't know what it is but i'm running my own site, and there's a lot on the books ssi can be taken to court if somebody else claims that i know or should have known that a photo is uploaded to my site, a nude image of some other person shared without consent. under 230, i can immediately get out of any lawsuit is somebody tries to come, thousands of photos are uploaded to my site today. my site is doing very well and somebody says, a photo of me is on your site and you should have known that i didn't consent to it. under 230 i don't even get dragged into the court case. there's a very clear i cannot be held liable for this and i can go back to doing my business of running a photo hosting website.

is the law changed and there was this question of should i have note that this photo was shared without consent, then we are in the case for i as the operator of the website have to go to court. i have maybe two or three employees for my basis and now i've got to hire a lawyer to i'm operating on thin margins and now i've got to pay legal fees because of got to go and defend. there's no way i could've done. if we're talking about good-faith operators who really had no knowledge and couldn't be considered like should've known that these kinds of photos were on their side, they will still have to go to court and defend that. that's one of the real burdens that this kind of liability framework would put on operators, not even thinking about these giant internet platforms that deal with millions of pieces of content a day and what knowledge of standard to the have the tens of millions of photos posted on a website, even thinking about small companies, two or three

person operations can't figure how to navigate the situation to it would be vastly more complicated. >> the flipside of what professor franks wil was sayinga copyright lawsuit about something that people retain a lawyer nor do. it's a larger issue we have made a law something that people who can afford to hire lawyers can be really good at. the rest of us try to stay out of trouble. >> to respond to the specifically, we want to be careful to balance these harms. it may be true that especially the supreme court is gotten to the mode of saying we don't a balancing test but the fact is they did the this is the supreme court in the 1930s and the concern for overbroad laws must done on the river substantial as well, judged in relation to the statute's sweep advancing exactly that there are out there that can be addressed by this law and you can't solicit there could be all these things that might happen. are good, true, but they have to be real harms and they have to be weighed against the legitimacy of any statute or if we do that ever look at the case

of the poor site owner, that's a true. there's no reason to say there aren't going to grace and issues but, of course, there will be but we also know that there are actual current harms, but there are thousands of people are being affected by whose lives are literally being ruined. that is a real harm as well. to say we're not sure what would happen to these particular site operators, that's a concern but it cannot be the only concern. as for section 230, people waving their hands and say we want carveouts, section 230 has carveouts. it's been made clear that we're going to say section 230,000 apply for federal criminal law does apply for copyright. whose interest does that serve? is not as the section 230 is a natural right. it's always been a matter of interpretation. it's always been the question of who are we going to say gets protection and he doesn't, which interests are we which interests are we going to sit so far but even section 230 does not apply to? first amendment doesn't apply in certain situations either.

why is that the case? ..