>> now, one thing that strikes me is i don't think there's really, should be a large role for courts in dealing with the problem of surveillance at the largest area here. and the reason i don't think that is in the usual constitution case it is some kind of, someone is doing something very unpopular, minority often, some not you

know with extreme ideas, and the function of constitutional rights is to protect these people from the majority, from state legislatures, some congress. but in the case of surveillance you really have a very good balance that allows this to be dealt with by the political process. because everybody is very concerned about national security and crime and cyber harassment and so on, all right? so if you have this kind of balance where people care about both sides, the arguments for surveillance, the arguments for limiting surveillance, i don't see why the courts have to get significantly involved. and it' its related to the point that justice alito made in the

jones case that especially when you have rapidly changing technology, there's a lot to be said for leaving it to the legislature to deal with. because the judges don't, the level of technological -- technological knowledge among judges is very, very low. there are exceptions like judge mckeown but it's very low. if you look at the supreme court, for example, there is none of the nine judges have unique kinds of technological background. they are all humanities majors from college. they don't know anything about technology. so i don't think they should be taking an active role. and really that's, that's my take on these issues. oh, i do want to add one thing

actually. i think privacy is actually overvalued. and the reason is if you think about it, there's some forms of privacy which are entirely proper. trying to keep your passwords and your social security number and all that secret, that's protecting yourself entirely in a legitimate way. but much of what passes for the name of privacy is really just trying to conceal the disreputable parts of her conduct, right? so privacy is about, privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that

would cause of the people not to want to deal with you. on a social plane or on a business plane. so i don't know why that kind of, that kind of privacy, i don't object to its being, to having some protection for it but i don't see how it can outweigh national security concerns, for example, very serious criminal activity. i think we glamorized diversey and are not realistic about what it's really about. tried to make you look better, and you are, right? i also think that, that privacy interest really should have very little weight when you're talking about national security. the world is in an extremely

turbulent state, very dangerous. and i think national security has transcended significance, and it shouldn't be, the surveillance activities of the national security agency and the fpi and so on, i don't think they should be curtailed in the name of privacy. if the nsa wants to back you go all the trillions of bits of information that are flowing through the electronic worldwide network, i think that's fine. they can vacuum it. they can search it and they can use it for any national security purpose. what i don't think they should be permitted to do is turn over information to accidentally collect, vacuuming minor criminal activity. i don't think they should be allowed to turn it over to law

enforcement. you know, a minute to murder or something, theft, that's one thing that road crimes and theft and bribery, i would not permit that. so i would protect people against the use of national security intelligence to deal with ordinary criminality, but as far as actually protecting national security, i think the agency should be given carte blanche. >> thank you very much. so i was hoping for a controversial panel. [laughter] we have on the table ancient history, irrelevant in this day and age. the courts don't have to get involved in this. they should be legislative handle the judges or humanities majors, i believe that was the quote suggesting and competence to address this area. privacy is overvalued. we will get to the border.

judge mckeown and come i'd like to open -- [laughter] >> i agree and i disagree. the deacon i do agree with the point on congress that so many of the issues the courts are facing our political and policy issues that ought to be first look at why congress. i think it's interesting if you go back, i don't talk about the case is made with the same as my colleagues, but i don't think he means that with the mean heart. but if you go back to olmsted, it's interesting to because i think it was chief justice taft actually said that these issues, it was basically surveillance issue, ought to be looked at from a congressional standpoint. .com however, is not a total solution because once you pass a law, it's going to get challenged. i don't think you can simply say

that these issues are the problems of the congress because we know that whenever they pass these laws, and they will be subject to constitutional challenge. so like it or not i think you'll end up back in the courts and we can't sidestep and say we wish congress would solve the issue. i do think there are things where courts are struggling to look at issues and that congress on to step in. i got to get their act together look at some of these. here's one of the problems we have, and i know from my life as an intellectual-propert inteller is that once you address one technology a new one pops up. you can challenge one thing or you can challenge a copyright or a digital problem or privacy issue but then there would be a technological workaround. when that happens we know that the courts move very slowly and technology moves very fast. so you always have principles lacking technology. that's why we deal by analogy but it's not always perfect.

they are one of the difficulties we have is we are forever dealing in small items. it's deeper today, -- it's a deeper today, a cell phone or a total of tomorrow. each of these is some incremental part of the technology. at the issue i have is we do have a construct that is not very illuminating, of course the fourth amendment, we don't throw out the fourth amendment. we just can't divide much from it. we can't define a lot from it other than we look at reasonable expectations of privacy and we haven't of course for the trespass concept. my question is this, and by -- i would interest in the other panelists, how you define a regional expectation of privacy in the world that we live in now? because it is a very different

world. i wouldn't throw privacy overboard. perhaps as my colleague suggests. i think the europeans have a very unusual and odd construct. they have come up with recently the right to be forgotten so that you're on the internet but now you can go in end quote take it down which, of course, also poses a lot of technology problem. we are in an era where a lot of people put things on facebook that are pretty amazing. a lot of times they wish they hadn't. they only wish that later. so i don't think we've given up privacy. i think we need to think about it in a different sense. and the courts i think are grappling with how you look at reasonable expectations of privacy because they're so objective and subjective expectations of privacy. my bottom line is overlooked to congress but i know it's going to end up back in the courts. i do think it's incumbent upon

lawyers to educate the judges on a case-by-case basis. we may be humanities majors. we may ask questions as they did in the supreme court. perhaps michael, like what's the difference between this and the fact that suggests some judges and justices are not as fluent in technology as they might be. the fact is they will be in the court. i think of lot of help can come to the courts from the lawyers appearing before the court. i.c. in many, many records really an explanation of how some of these things work. in my view an online is technology matters when you're deciding these cases. >> michael, can turn to you on this since you've argued many of these emerging technology cases in the courts where justice scalia comes out and says where it is not an general public use and that speaks with the result

is that use of that technology. can you speak a little bit about cairo and other court has been grappling with these new and emerging technologies? >> so i think that was interesting about you these things from the vantage point of the supreme court consideration of them is that the court is saying these things many years after that are occurring. they are way behind the curve on technological development. i was sitting and listening to a kind of criminal activities people were talking on the first panel and thinking this is like light from a distant star but it's going to turn up on my radar screen five or six years from now after everything is moved on and it's in some of the road. i think the court gnosis to a certain extent. so what struggles with these new technologies with kind of limited tools to work with. the fourth amendment says what

it says but it's not especially eliminating untidy resolve any particular problem. the prior doctrine is the starting point for the lawyers and judges and justices to analyze it, but doctrine often runs up and get to new problems. so in an on the thermal imaging case, the court me that something was going on. the fact that you weren't having to go into somebody's house to find out what was going on inside of the house was a troubling development they seem to implicate the kinds of norms that animated fourth amendment to begin with, but fell outside of what anybody in the 18th century would've contemplated. the court in kyllo reached back and said we're going to try to translate the norms that were the foundation of the fourth amendment into the new technology by looking backwards. we will give the house the same degree of protection it would have had against a physical search when that new innovation

is occurring by virtue of technology, namely thermal imaging. in jones also the confronted gps tracking, the gps tracking the real privacy point of view is that you're able to follow people are goin doing and see we they're driving around and you can build a mosaic of their life. is why it's useful for law enforcement. it wasn't the attachment of low magnetic device somewhere on the bottom of the car where the fpi actually didn't want me to know what is preparing for jones on the theory that wasn't within my zone of need to know. but putting a low magnetic device on the car was at the intrusion yet the court reached back, found itself comfortably with five justices think this is a trespass. we would use kind of the 18th century concepts to resolve this. there were other justices on the court led by justice alito's concurrence that wanted to

update this and review the gps inquiry in light of caps and balance social expectations of privacy against the governments interest and really modernize the fourth amendment but that didn't carry the day in jones itself. then you get to riley involving search incident to arrest cell phones. cell phones are kind of like modern day versions of carry around the kinds of things people used to carry around pictures and the wallace, address books, diaries, letters, all of that stuff could be searched under standard search and consent arrests doctor. the courts reached a breaking point where unanimously it found that cell phones are just qualitatively different from what we have been bequeathed from, and we can't view this kind of intrusion through the

lens of the past. we need to conduct a fresh fourth amendment balancing and look at the law enforcement interest and balance them against the privacy interest kind of in the way judge posner wasn't saying should be done. viewing the problem from today's perspective, really see what's going on, not just be him didn't buy the doctrine. riley also elicits one of the limitations on the courts ability to do that. it is kind of a time lag phenomenon. and that is one of the problems that government pointed to and why we should be able to search cell phones from people as we've engage in a probable cause of arrest and gotten into government custody is that our phones can be subject to encryption. once they lock it can be very difficult if not impossible to break through that encryption, can actually conduct a search once you've gone through the procedure root of the fourth amendment prescribes of getting a warrant.

the courts reaction to that was you say that but you aren't able to point at any data that proves it's been a problem angel making this argument for the first time in front of the supreme court which is part because the lower courts have not come to any function which poses the encryption problem we were trying to provide them the information we thought we would be valuable to them in deciding the case. and the court said like, nothing dointo you don't have a credible case on the. within six months have apple coming out and releasing new phones with encryption technology that says we're not going to keep the keys so once you get the stuff encrypted when the going to be help the government get through. that is a technological development that wasn't available to the government or for the court to consider when it decided rightly. it might not make any difference to the court by do think it

illustrates the proble problemse have when technology is consistently leapfrogging the doctrines that have been laid out by the courts, and the courts are given very little choice but to decide concrete cases one at a time. they can't count on congress into being. they can't just say this is a hard problem, we will not be set at all. unless you get concrete defense out there who are asserting interest. the last thing i will say is i think the courts are probably come if not the best place, at least may be the right place to try to be considering how much the valley of privacy really should bear on the law enforcement techniques. i say that because i think i have even a sequence from the government side a slightly different plan on the valley of privacy that has been perceived today as underlying fourth amendment interest everything

can be traced back a stroke ago and that a certain degree of privacy is perhaps a precondition for freedom, political freedom, artistic freedom, personal autonomy. and that it's kind of baked into the nature of the democratic system that you need that in order for there to be a flourishing individual life. and at the same time the government does a very strong interests to protect people against crime and to ensure that people are safer. these are tricky to balance and maybe the legislatures can do a good job with them. they are democratically accountable. they can gather information in a different way than courts but at the same time they may not necessarily be as sensitive to some of the underlying values that are part of the constitutional heritage. that's what they think the courts are going to continue to struggle with this, with perhaps not fully adequate tools but

involving the doctrine one step at a time as they see the cases. >> we have u.s. versus jones with the expectation of privacy defined by justice -- looking at trespass, but the shadow majority that he knows in which justices alito and sotomayor in particular raise these issues of changing technology and that this alters it to the next year we have this dog sniffing case which was five for where once again you have decided on trespass grounds but justice kagan interposition which is joined in by justice sotomayor and justice ginsburg says that this action harkens back to kyllo under the recent expectation under task type does but we end up now with riley but in the riley case chief justice roberts recognizes modern -- differs in a quantitative and qualitative system of objects that an arrest he might be caring and does implicate privacy concerns far beyond those implicated by the search

of other objects. david, you wrote in the nation the title of your paper is the one supreme court decision we can celebrate it in ruling policemen that search cell phones without award the court brought the fourth amendment into the 21st century. i'm assuming you agreed with the courts opinion and riley to can you say a bit more about that and how far that went in satisfying your consent have expressed the computer severely weakened the fourth amendment, so much so you side and other times in the modern digital age the fourth amendment means very, very little. >> the first thing i want is it is really unfair to ask michael to talk about three cases that he lost. [laughter] but i think it's interesting. michael doesn't lose many cases in the supreme court. not a one, because he's one of the best advocates that this nation has. number two, because he's representing the government against bad guys, pretty consistently.

and yet we made him talk about the three cases he's lost. i think maybe michael does as well by his final remarks, i think it does suggest that the court understands that we can't separate apply 19th century doctrines 21st century problems, that we do need to adjust the rules to take account of technological change. in all three of those cases, in essence the governments argument was there so difference. just apply the old analog of your precedence and we win. and i think the government was quite confident at least in some those cases that they would win because it's so hard to come up with a good rule to govern the digital era technology. and yet in all three the court

said no, we are not going to just apply lock, stock and barrel old rules in these situations. in fact, in the riley case where the government said look, you've always held we could search any continuing to arrest a person on probable cause, and cell phones and smartphones are really materially indistinguishable from any other kind of container, wallets, address books, diaries, et cetera. chief justice roberts said, arguing that cell phones and smartphones are material indistinguishable from other containers is like saying that a horse and buggy ride is materially undistinguishable from a rocket trip to the moon. there really is a qualitative difference, and doctrine has to take account of that difference. so i'm encouraged by the fact that the court has seen fit to

bring the doctrine into the 21st century. i think the next big area that requires that kind of adjustment will be the third party disclosure rule, the rule that when you share information with a third party, you have forfeited your visual expectation of privacy and that information and, therefore, the government can get it from the third party without any kind of fourth amendment limits whatsoever. it doesn't have to award, does not have probable cause, doesn't have any reason to suspect you and before it can get on a whim. it can get it against everybody. that doctrine was developed in the context of informants, them off your guy talking to an informant and telling the informant as he is engaged in some criminal activity at the informant going and telling the police that and the court said i

think quite reasonably when you talk to somebody and tell them that you've committed a crime you assume the risk that person might go to the cops or the cops might go to that person and, therefore, there is no fourth amendment constraint. the problem of course is in today's world we share with third parties every detail of our every life. imagine if there were any country out there that required people to tell the government on a moment to moment 24/7 basis where they are, what they are reading, who they are with, who they are talking to, what they are saying, and what they're interested in, what they are thinking about. we would say that is the definition of totalitarianism. we would feel very sorry for those people who lived in that community. we would say we certainly don't

want to live in the community, but we do live in the community. the only difference is we quote-unquote voluntarily share all that information with third parties. our internet service providers, are phone companies, our credit card companies, our mobile devices, et cetera, et cetera, et cetera. the cloud. and under the third-party doctrine that means that there's no constitutional limit on the government gathering up all of that information from those third parties without any basis of suspecting you of engaging in the kind of wrongful activity, which then opens up the possibility for the kind of dragnet surveillance that you see the nsa engaging in. so i think we do live in a brave, new world. we have walked into it, the government hasn't imposed it upon us. but unless we change the rules we will allow technological advance to render privacy like

the eight track player, something that we once had but no longer is of any use. >> i'd like to cabinet the third-party doctrine and judge poe to come to you in just a moment on a third-party doctrine to see if you agreed with david on this point but before we do that, come on, i would like to ask you but technology. justice alito cited and quoted you in jones about talking about technologies influx. at what point is a statutory come at what point is a doctrinal? and the title iii moment in regard to these technologies we currently are seeing? >> okay. the question. let me try to get to them. my overall view which is consistent with a lot of which occurred on the panel so far is that initially there's a third of rapid technological change with any specific area of technology where the courts should be deferential to the

political process. the facts are changing too quickly for the courts to step in. by the time the supreme court tries and that a will, that technology has become obsolete. it's hard for the courts to step in, special appellate court to try to break at the quickly changing technology. after a while my sense is most specific technologies begin to stabilize come at the point courts are more able to step in and say this is how the fresh balance of the fourth amendment should apply to these new facts. the dynamic that several panelists talked about, whether it's refreshing the balance of the fourth amendment or adjusting the rules, i think this is a dynamic that happens and has happened in fourth amendment law from the beginning. sometimes it favors the government, sometimes it favors the defense but it just depends on the case. it's really a qa street. it's tricky a thing for courts to know when is the best time or when is the time when the technology has been stable as.

i thought for example, in a cell phone context that by 2014 cell phone technology had pretty much stabilized. you had a rough sense of what cell phones could you and you could think back to say 2000 or so when cell phones were much newer, when the capabilities were much easier. much lower. the courts try to figure out how the search interest, pagers, going back to the 1990s, had no problem applying the analogy from the physical world to wallets or packages that somebody was carrying. because the early digital devices just couldn't store that much information. then you get i think they massive ship with the introduction of smart phones, 2007 or so. and so i think by 2014 we have isn't okay, this is what cell phones are. it's enough for courts to begin to step in. maybe i was wrong in light of the apple announcement that

followed afterwards. that's the kind of gang changing dynamic which i think does affect how judges get a sense of how much does this device alter the privacy dynamic of the prior ruling. unser, the apple announcement involving ios eight that michael referred to earlier. it is i think a difficult question of when courts should step in but inevitably i think there's this early period and then there's a stabilization point. and i'm not saying, obviously in some broader sense of technology is constantly advancing but individual applications or individual functionalities will stable as. an example i think of where the supreme court could step in that would be fourth amendment production in stuart deane, contents of e-mail. e-mail is basically the same as it has been for decades. the technology, the basic notion of content transmitted and stored over a network is one that sort of part of the nature

of commute nations that were. >> so were shaq was right. what about data in data mining? >> so data mining is a broad topic. i disagree with the david's suggestion. i think noncontent information is really the big question in terms of what courts should do. clearly we have much more metadata out there, much more revealing metadata, and they tend to think we are in a period now when this is an area of legislative protection of not judicial protection to nature of metadata is evolving. coming up with a contrary rule saying all metadata is protected in some context is quite hard for judges to do, especially because the nature of metadata that is out there. it's changing so rapidly. my own approach would be questions about smith v. maryland, that should amend the law for the time being.

maybe even the nature of metadata will change overtimes and courts can accept it by saying this is how should be addressed. in terms of the overall balance, it's important just as we think about we don't want the government to have too much power. we don't want to say, for example, everything, we want to see content information is unprotected online in the case of privately held content. on the other hand, if we go the opposite direction we could say all metadata is protected under the fourth amendment by a board requirement. i think that should take it way too far but it ends up being the privacy protection we have in the online world would be much greater than the off-line world and if there's a lot of practical wisdom in the balance the physical work early strikes that somethings are not protected under the fourth amendment and other things are. trying to maintain that balance to my mind requires right now a lot of congressional action is in the possibly of judicial action later on. >> can i jump in on congressional action for just a

second? i'm not sure what world we live in, those of us on the path toward congressional action live in. but the world i live in is one where congressional action is -- it doesn't happen. a couple of examples. the u.s.a. freedom act which would have reined in some of the most extreme actions that the nsa was engaged in and would have improved process by which foreign intelligence warrants are granted was favored by a vast bipartisan majority in the house, was favored by a significant bipartisan majority in the senate. was agreed to by the obama administration. now, you would think that would be a law, right? the majorities in both houses agreed to by the president. and yet it was filibustered. couldn't get 60 votes required to get through this and.

another example is the rule with respect to e-mail. we have a statute that deals with e-mail but it was passed in the nether regions of the '90s, and they drew this ridiculous distinction at the time saying e-mail less than six months old will treat like a phone conversation but he have to get it work. but if it is more than six months old you don't have to get a war or probable cause to see it. at that time that was when your computer was always telling you delete, delete. you're getting over quota, et cetera, et cetera. there is no such thing as over quota because the space is unlimited so everybody keeps their e-mails forever. southern ocean there's this difference between an e-mail one day short of six months and won the over six months is completely ridiculous. everybody agrees to the. and so a bill to fix that has

overwhelming bipartisan number of supporters in the house, not just voted on an actual cosponsors, something like 280 cosponsors in the house. it has vast bipartisan support in the senate and it's never even come to a vote because a single member of the house judiciary committee which happens to be the chair is against it. in this climate looking to congress i think is not likely to provide as with much of a response. >> i might add that there is no delete delete. >> just a response. yeah, i think the test for whether we should be relying on the legislature shouldn't be whether specific pieces of legislation should have gone through and didn't or whether we reached 60 votes because of whoever was elected. i think you can tell different

stories on both of those pieces of legislation as to what happened. one in the context of e-mail, i agree 180 day rule makes the sense but it's been held to be unconstitutional i the sixth circuit, and all of the major internet providers completely ignore the statutory distention. they say a word is required to the reason congress has not enacted legislation in this area because there is much less pressure because the providers are not following the statutory rule anymore. if the provider said okay, we will follow the statutory rule, we will start giving it enough that is over 180 days with the subpoena, that role would change really quickly. it's just the pressure is no longer there because the courts are not following it. with section 215, u.s.a. freedom act, i think that something because of the statutory sunset, that's a rule that's going to have to change at some point before i think it's june 2015. so we will see another round of

legislation, one law didn't pass. i think another will in a few months. i'm not saying that's perfect. i think it's better and courts stepping in when the technology is evolving rapidly in trying to announce a specific rule today that in two years or 20 years or even just two months could look outdated spent it's also 702. it's national security letters and section 702, also at issue and u.s.a. freedom act as both section 215. judge posner, let's turn to you now. third-party doctrine, time to overturn smith v. maryland? is a still relevant in this day and age of? >> what do you mean by third-party doctrine? >> the information provided to third parties is not subject to fourth amendment protections. do you agree that still the case or do you agree with david cole who is just suggest we live in a different digital age in which your information is necessary given to third parties i nature of living in which case it's

time for the courts to recognize this and extend protection to information provided to third parties. >> well, that sounds reasonable. depends on what the information is. i was thinking listening to professor cole. i don't understand exactly what is the information that he's worried about? i was just looking -- i have a cell phone, iphone six. so if someone drained my cell phone, they would find a picture of my cat -- [laughter] phone numbers, some e-mail addresses, some e-mail texts. what's the big deal? other people must have really exciting stuff. [laughter] on their cell phones. do they narrate their adulteries or something like that? what is it you're worried about?

>> that's a great question, judge posner. and i, like you, have only pictures of cats on my phone and a word about anything for myself but i'm worried for others. no, i mean, your question which goes back to your original statement of what's the valley of privacy unless you've got something to hide? that is i think a very, very shortsighted way of thinking about the value. i agree with michael. privacy is critical to democracy, critical to political freedom, critical to -- your question also brings to mind a cartoon that was in "the new yorker" just the last couple issues where a couple are sitting in bed and have a video surveillance camera over each one of them looking, trained down on the bed. the wife says to the husband,

what are you concerned about if you've got nothing to hide? nothing to do. it seems to me that all of us and whether we are engaged in entirely in capital of the behavior or whether -- cat loving behavior. or whether where going to psychiatrist or a portion of providers or rape crisis centers or alcoholics anonymous groups, or have an affair. all of us have something to hide. and i think the kind of -- even if you don't have anything to hide and to live a life that could be entirely transparent to the rest of the world, i still think the valley of that life would be genetically diminished if it had to be transparent. something, again, you should say

well, these you've got nothing to hide, you're not engaged in criminal activity, let's put the two cameras in every person's bedroom. and let's just record the video 24/7 in the bedroom but we won't look at it. we will look at it until we have reason to look at it. you should be concerned because -- >> that's a silly argument. spin a globe, based on a new yorker cartoon. [laughter] >> the sex videos, that's -- what you should be saying is, you should be worried about the types of revelation and private conduct which discourage people from doing constructive things. so you mentioned alcoholics -- >> i find a sex to be a constructive thing. >> let me finish, will you, please? >> sure. >> it's a good example, right? you could have a person who has an alcohol problem so he goes to

alcoholics anonymous but he doesn't want this to be known. if he can't protect that secret and he doesn't, an then he's not going to go to alcoholics anonymous and that's going to be bad. so that's the sort of thing you should be concerned about rather than sex videos. and there i agree with you. they are i agree, that's a good example of a type of private information that should be protected. >> let me give you an example of sex privacy. i think we all have an interest in keeping our sex lives private. that's why we closed doors to our veterans consider editing that's a legitimate interest and a legitimate concern but it's not because you something wrong you want to hide because intimacy requires privacy to number one. number two, think about the government use of sex information with respect to dr. martin luther king. they investigate him, intruded

upon his privacy by bugging his hotel rooms, learned he was having an affair and then sought to use that combat the threat of disclosing that a fair to change his behavior. why? because he was an active political dissidents fighting for justice. we have a history of that. our country has a history of that. most countries have a history of that, and that's another reason that the government will use information that doesn't necessarily concerned them to target people who they are concerned about because, not just because of their alcohol problem, not just because of their sexual proclivities but because they have political views and political ideas that the government doesn't approve of spent judge posner, would you like to respond? >> it's pretty far away from cell phone search is now, aren't you? >> ououtfit not. again, the question is --

>> sex photos on your cellphone? >> i imagine if dr. martin luther king was having an affair in 2014 as opposed the 1960s, his cell phone from his smartphone would have quite a bit of evidence that would lead the government to that affair. he would have call logs. he might have texts come he might of e-mails. all that would be on the phone. >> michael, i'd like to turn to you. michael, you mentioned privacy as a precondition for freedom which is a broader definition than that which we are discussing right now. how would you think about that in terms of rules? rules? is this in a way the court should be stepping in regardless of the state of evolution of the technology? >> so i actually think that the evolution of the technology is presumably why we are here, and the pressure that puts on doctrine is what occasions the purpose of having a panel like this in the mix.

it seems to me technology is doing three things. one is that it is increasing opportunities and creating new opportunities for criminal activity. hacking into large corporate databases or individuals computers, or to systems that control electronics. creates great risks that in some ways give rise to new challenge for government to meet if they're going to protect the citizenry. it also enhances government surveillance opportunities in a lot of ways that we have not talked about on this panel, and that i think away beyond the stuff that david cole is fearful of the. we have ubiquitous license plate readers now ought on the street. we give information when we drive around in our cars. there are loads and loads of

ways in which more information is out there and can be used by the government if it wants to in a way that i don't think the fourth amendment is ever going to have much to say about. and then finally i think this is a crucial counterpoint perhaps an additional feature to david's attack on the third-party doctrine, which is we really are giving away a lot of information now. far beyond the kind of sharing of information that's happened in the past but if you just look at facebook or many of the other social networking sites come it's not like the government has to go out there to investigate people's private activities by peering into their bedroom. you just have to look at it on facebook or on many other social networking sites where people are sharing an amazing amount of information totally voluntarily. and they are really changing what expectations of privacy

are. i'm sure the city of thinking like, well, i'm sharing this with my-friends and my pages public, therefore i'm also giving it to the government. but in reality they're putting out a lot of information without restrictions and it doesn't change what notions of privacy are. i think when you have those three things increase technological potential for crime. increased surveillance techniques that are really transcend any normal fourth amendment analysis, and changing expectations of privacy. it is extremely hard for courts to find the right balance. i'm not under any detail on the 215 problem but if you think it is really quite a contrast to positive program that is going to look at metadata and not content data, and take some effort to see if there are connections between people who are implicated in terrorist activity on the one hand, and on

the other using it for partisan our corrupt political gain by blackmailing people in society with information that the government acquires by breaking into their houses or otherwise intruding on their privacy. david, on the one hand, is looking at a government where there had been some bad things have happened and some corrupt after these -- corrupt activities. the government is not all engaged in corrupt single-minded activity to promote the political agendas of people who are empowered in an abusive way. also try to protect americans in terrorist acts. and to say that we're going to protect against gathering information in a way that is minimally invasive of privacy, if at all, that can then be used to keep the country safe, in order to prevent like the martin

luther king abuses, i think leaves out one side of the balance. and ends up with an unbalanced set of rules. >> michael, two points to press back before move to judge mckeown. judge posner raise this point that you might collective for national security purposes but then to move it to ordinary colonel activity does not a sufficient magnitude, there ought to be a line drawn there. that's another aspect, i would be interested in your thoughts. second, there's some tension in your view that using we have changing expectations of privacy. at the same time privacy is a precondition for freedom. so just as physical trespass changed, are we at another moment here with the recent expectation of privacy test put forward is no longer sufficient to protect this other guy that you particularly with regard to precondition for freedom in a democratic society? >> with all two-part question i

will answer the second one and i will forget of the first. [laughter] really, if you look at the jones, the court was concerned, you could tell from the demeanors of the justices they could imagine this happening to them, and to them, and in want of someone following them around with a gps device attached to the car. but technology is going to make in some way the jones ruling very quaint. if license plate readers, automatic license plate readers are installed for good and valid purposes on public streets where you drive and they will be up to pick up information and then they can be integrated in a computer and the database can be created and the government can data mine for and find that information, it makes the jones rule seem like kind of a silly one time respond to a phenomena that was in front of the court but it didn't capture the bigger picture. so by a katz moment i presume you mean one where the courts

concluded prior doctrine just wasn't achieving the purpose of the constitution provision. we will not be able to rely on trespass doctrine alone. it draws arbitrary distinction. we need to move into some more balancing. i don't know what that next moment would look like. i'm sure david could tell me what he thinks it would look like i do think it is really a difficult thing for the court to expect this little corner of the constitution to keep up with these truly, you know, ovals of like -- life-changing technological developments that are altering the way people interact in very fundamental ways but maybe they can protect course of the. maybe they can protect the home, but expect they will be able to come up with all-purpose doctrines to strike the balance right for what we want to see in the balance between security and liberty, very --

>> i think the question of license plate readers is a really great example to focus on. because it's a fairly new technology. it's gone into widespread use and yet most people are not particularly unaware of this. in part because the nature of surveillance is your not aware whether you being surveilled. pictures are being taken the most people are unaware of it. we start to seize legislative changes but i think i read recently i think 13 states have enacted some sort of statutory regulations just over the last two or three years, have some sort of limit on the license plate readers. maybe it's data can be kept for a certain use of time. i think what we really need is much more attention. so what is actually happening out there and what kind of rules should be placed on retention of the data, use of the data. they should be something we are much more focused on at state level, also ideally of the federal level that we are today. in part because we just don't

have a good sense of yet what is happening and it takes usually some sort of scandal or some sort of big music store before everybody focuses on new technology. >> judge mckeown spent well, i think privacy has undergone a bit of a revolution here on the panel, but i do think back to the '90s when the head of sun microsystems said something to me, privacy, you don't have it, get over it. everybody laughed but i don't think there are laughing because what we had in the '90s is very different technologically from what we have today. the defining principle is not what you have to hide. it is that you actually have some rights to privacy. in that regard, the question was what could a cell phone have. i think actually that's the most important case in recent times has been riley. because riley envisioned that a cell phone is more than a cell phone. interestingly one of those cell phones i think was an old not so

smart sofa but the other one was a little smarter. but the courtly to focus on what kind of information you could have in a cell phone. while i may not have much on my cell phone and judge posner doesn't have much on his cell phone, michael hasn't, not so smart for. not that he is a smart. he's just smart not to have a smartphone perhaps. maybe that's a government rule. [laughter] the fact is what people have on cell phones or tablets, tablets are the size of cell phones or fat cell phones, is everything. they have photos. they have political views. they have personal connections. they have websites visited to their financial data. they have health data. so the kind of information that you have on a small electronic device can be very significant. and so that's why i see riley as a very important case because

the court actually said that the cell phones that we now have really differ, both quantitatively and qualitatively. and i think that was important. i do agree that jones is kind of a quaint situation, but now we have smart cars and castle and other things, so it happens that putting this little trespassed device on your car, they can just do it electronically? do you need a word for that or are you disclosing it because you're driving around? that hasn't actually been tested, but the computer in your car and computers to come in your car are going to be smarter and smarter and they would be very easy to track the data. at what point does that quantitative tracking of that data becomes somewhat we have an invasion of privacy? i think you have to really look at the reality, and if you think

now that if you ask people about privacy, even though some people may put things on facebook, that the american public does not say we don't have a right to privacy. and the other point i would just add here, you can't forget anonymity, which the internet provides. and that those been an important part -- that's always been an important part of first amendment and privacy law is the right to remain anonymous in certain aspects. so i would go back to what michael said to begin with, and that is we do have a construct in our civil liberties where privacy has a place. just kidding pushed further and further into what privacy can be given up to speed? we have looked at third parties, statutory solutions, discuss retention and data years. riley potential being more important than joe's.

there's one last area i would really like to push on before you move to questions and answers, and that is the international dimension of this. we heard earlier from rick on the earlier panel that we're seeing more loosely affiliate groups and actors in terms of the threat environment, and some distant for the national intelligence council and raise a question about how we have these transnational networks that are less hierarchical out there. leslie mentioned at the beginning global interaction. where are we with regard to fourth amendment once we moved into its borders? i would like to lead with you, judge mcewing. >> has anybody here ever kind of cross an international border? raise your hand. amazing. mr. cochran was a gem who decide to go across the international border from mexico to united states. is a united states citizen. the question was whether they could seize his computer and

basically data mine his computer went but he warned, without any kind of suspicion. of course the government not surprisingly sad in the tradition of the united states, almost anything goes at the border. that had been pretty much the rule. he didn't think that's the case. that's a because you crossed the border doesn't mean you give up all of your constitutional rights. this notion that we recognize there are very strict problems at the border. some of them our national security problems. some of them are commercial problems such as importation of pirated goods. there's all kinds of very important things that happened at the border. but i think most of us for the reasons i said at what you have in your computer, what you have in your cell phone would not say you automatically, the government can search it for you. all of you can be searched at

any time. time. so in transit we a subsequent what certainly you don't need probable cause but you do need some reasonable suspicion. this was a case where some might say that mr. cotterman won the battle and lost the war because the court determined that in his case there was some reasonable suspicion. has activities in the child pornography area. but that is now the rule in the ninth circuit that it is not anything goes. and just because it's a border doesn't mean hands up and every american can be searched, particularly with respect to the electronic data. this doesn't do or tinker in any way with the court case is about hiding a dope in hubcaps and smuggling aliens in your trunk or undocumented individuals. so it has nothing to do really with those cases. by think we have come to a situation in the law where there

are a lot of confusion about what's a border search of what's an extended border search and we tried to simple by that is at least in the case of electronic data, you need sufficient. >> judge posner, your thoughts on cotterman? >> i think it's perfectly fine to have searches of people coming across the border, or wanting to fly from the airport, right? it's a dangerous. i mean, potential dangers. people fly and people who come in from across the border, even if they are american citizens, you know, what they are bringing in. and i don't see the objection. as long as the government is constrained to use the fruits of these searches only in a specified way, and not to

embarrass you in public stuff until a, i don't see an objection. that's why i say i would allow all the surveillance the government wants, but limit the uses they can make of the fruits of the surveillance. i'm happy to be searched at an airport. that's great. i want everybody to be searched before they get onto a plane. ..

in terms of how that talents his stroke. one example of that is when the tsa first introduced the body scanner that you go like this for, a reportedly revealed you naked essentially. people said that doesn't seem right here they started objecting and the lawsuit was filed aired before the lawsuit was filed come in the company was forced by the protests of the people to modify that typology so that it is the show you naked. it shows tsa what they need to see, whether you were carried something that could used on the airplane for bad purposes but doesn't show all of your vital particulars. so that is an example where the political process at a pretty good job of balancing privacy

and security. when you're talking about or a national interest and especially for a national interest abroad, the political process is almost certain not to strike an appropriate balance because we are the ones come in the citizens are the ones who get to vote. if the question is can we the government intrude on somebody else's privacy to increase your security, every time we are going to say yes. what is the cost of me? you are not intruding on my privacy. you are increasing my security. it is a win-win for me. so i don't think if the political process is efficient. and get what we have seen

mr. result of mr. snowden. -- therefore at a faster bus they don't have our right, we are foreigners estevan. we are foreigners as to the subzero, the counterpart to the tsa. if privacy protection should only protects you should only protect city sensor only protect people in the united states and not anybody else outside of the united states, we are opening ourselves up to reciprocal treatment. so we can have all the protections of the world vis-à-vis nsa, but a step to can do whatever i want to monitor

business, to what extent do we really have privacy? i think that is kind of an emerging area where i don't -- i doubt the courts are likely to do with it very affect delete, but i think they are certainly great international concern about it and so it is going to have to be dealt with in one way or another or we will have lost our privacy regardless of what message rules we create by virtue of not having treaties or other kinds of agreements with foreign government that similarly constrained them. >> david, just a pushback on that that, chief justice frank with good reason people come at the right of the people to be secure in the procedure, the people refers to pretty things. those who are not citizens don't enjoy the protections of the fourth amendment. so u.s. persons abroad have the reasonableness requirement. but for non-us persons, lacking

a substantial connection. how do you deal with the conundrum of having surveillance directorate oversees the non-us persons that happens to us to pick up a significant amount of u.s. persons information? how would you approach that? >> first thing i see is chief justice rink waste wrote or key deaths, but the deciding vote was by justice kennedy, when he disinvited chief justice renquist personnel. justice kennedy said now, i am not relying on limiting the people to us, not them. we have to make a case-by-case determination with respect to the particular constitutional rights, whether it's nominal and impracticable to extend the selection to foreign nationals overseas. in that particular case he felt

it was nominal and practical, but that rationale is what the court relied on in the supreme court case governing whether the constitutional protections in habeas corpus should extend to the people at one time to mope and the majority then took we are not going to candidate to the people. al qaeda is not the people, but we are going to ask whether would be nominalists and impracticable and we don't find it nominalist and impracticable. that is the question to what extent in particular circumstances would it be nominalists and impracticable to extend constitutional selections to people outside of the united states. i don't think that is foreclosed under current doctrine. you raise a very good point that often times when we are collecting information from foreign nationals, we gather up information that implicates u.s.

citizens communications because increasingly we communicate over across borders. so does the involvement of the citizens require a different kind of treatment? the rules that govern the nsa is gathering information present and quite different when implicates u.s.a. decisions. i think it is like a course would say that it does. my point is even if the courts say that it does, that is not sufficient. we need to think more globally about the impact of surveillance technologies. right now, we in the u.k. apparently have the best technology. these technologies and as they are, we need to deal with this in some way in an international global way.

and they would talk to them and figure it out. >> you have written recently in jurisprudence in ways that technology and global communications really raised in many ways. can you say a word or two about that? >> a recurring theme in the panel is that we have some idea is that the lower in some areas there will be a need and the question comes. it is one thing to say digital is different. we figure out what the rules structure is often difficult. an interesting example is the case that judge mcewan wrote in was speaking of. if i understand the en banc decision there is a distinction between a forensic search which requires reasonable suspicion any manual search which does not. the difference between a forensic and manual is my mind on where.

for example, if the government has a laptop computer opened up in there is a search function on the computer already, and using i preloaded search function, which is usually part of the operating system, is that a manual search? is that a forensic search? what happens if the operating system comes with writers sought where i started this search function that comes with the operating system. does that stay and manual search? does that become a forensic search? these lines are difficult and it is a challenge course will have been figure out is exactly what the lines are. that is one of the great difficulties raised by the case, but just the broader problem of how to play the fourth amendment to the global internet? what do you do when so many of the criminal cases, so many suspects are believed to be outside the united states that are unknown. you have got some kind of communication. you don't know where the person

is. what is the default rule and how do you get a sense of should you assume somebody does not have fourth amendment rights under the majority opinion of what happens if you follow justice kennedy's more functional approach which is murky in its own expression. what do you do if you add in the idea of dealing with internet communications or you don't know where the person is. how do you figure out what's practical with the goat of the information? so these are tough questions the course will grapple with. we are at an interesting historical time in part because not only does the internet and all the technology change so quickly, but we see a cutting back in the exclusionary rule with the good faith exception, which is exerting significant, giving courts more breathing room to be more creative in interpreting the fourth amendment substantively because they can announce a new rule and say here is the new way the fourth amendment applies. in this case there was a suppression of the evidence of

the good faith exception, so we see a cutting back or an evolution of the right all at the same time, which is a lot happening. >> thank you you would like to open it up if anyone has some questions they would like to ask. [laughter] >> i will make this brief. steve woodward again. i would like to ask the take of the panel on a recent initiative by the department of justice in regard to encryption on smart owens, which perhaps some people are aware a with the foundation concerned about this. this is something we call 1789, which is part of the judiciary by george washington to go to court and use that to unlock the people they sold the phones to deceive others on the phone.

the southern district of new york. why are we using does from three centuries ago to address issues of today. so i think the department is going to lose confidence by taking an approach like this. so what is the take on a quick >> overripe facts, possibly carrying 10, the other cases is still relevant? >> it is somewhat that is controversial. people are resending that maybe

the phone is using a new operating system and maybe the government to get the apple to actually change the engineering, change the operating system to gain access. i highly doubt that is what is happening, looking at the timing with september 18th and application and they had the cell phone in their possession already. this seems like it this is a prior operating system. this is probably a fairly routine or cursing and help us gain access to the content we have pursuant to the search warrior. that strikes as uncontroversial as long as the provider already has a weight maintenance to help us along, not a change your operating system. i suspect that is what is going on. it is in order interpret it because of events that happened after the computer.

>> if you believe in the constitution, you can't really criticize relying on an imac that from 1789. >> okay, we have limited time and lots of questions. i will take three questions. if you could keep them short, we would really appreciate it. >> i don't understand half of what you are talking about. a question that goddesses seems to me that we are focused on technology as a deciding ring i don't care why. when we talk about this third-party staff, should it be more about when a person had a choice versus when a person didn't have a choice? you're talking about how phones. i can delete my call log. you are making choices. some other things by the system's nature you don't have a choice. should not need the dividing

line here as opposed to the nature of the technology acquired >> thank you are a match. next question. >> i come from these issues from a law enforcement perspective. it seems some of the recent supreme court decisions have rolled out worldwide forstmann has been able to do. for example, the jones case resulted in getting search warrants in order to put a gps tracking device in every situation except exigent circumstances. it used to be we would to me for a drug deal and we didn't know the cars, the players and we could put a tracker on the vehicle. we have now lost the capability. in the riley casey lost the ability to get information we previously could have gotten in the address book, who is communicating with you. you still look through a cell phone and who the person is communicating with. we've now lost that. in the face of apple's new announcement would have lost lost the ability to get

information from a song forever. so it seems to me a more nuanced approach that the court could take and i'm wondering what the reaction to what kind of nuanced approach you could take to make sure law enforcement continues to protect the public and privacy as well. >> okay, thanks. if you hold the question about the mansour and we will take the last two questions for both of you. i may see questions of the type of technology and islam forced and islam forces are becoming limited? judge posner, would you like to weigh in on these questions? >> the outcome on the second one. i'm shocked at the thought a company would be permitted to manufacture an electronic product that the government would not be able to search. i don't get that. you might require the government to show a need, but the notion that you could have encryption

effective against the government, that is shocking to me. >> other thoughts on the panel? >> i would say the court and rightly and joseph not take long for sensibility to use gps trackers. it is just that the fourth amendment applies when you do that, so you have to show you have good reason for doing so. you have to get a warrant to do so. it didn't take it away. it just regulated it. on the first question that choice, i don't think that -- you say you are a layperson, but in fact the choice is what the world relied on anxiety when you choose to share information with a third-party, you assume the risk of the third party will then turn that over to the government. i don't think that's the right question. in some sense we choose to carry smartphones. we choose to be on the internet. we choose to make phone calls.

we choose to buy things with their credit card. we could cut ourselves off from the world in tiredly. not use a computer, not use the internet, not have a cell phone. we choose. the question is should the fact that we choose these conveniences of modern living and modern living another one of mr. could not make a living unless he made that choice, showed that lead to a loss of privacy protections? i think no, there is a normative question about the value of privacy this supersedes the simple question of whether you have voluntarily chosen to live in the modern world. >> last point on that. >> the thing that popped into my mind when you say choices. it is not comparable except the words of an essential passivity. it would be hard hard to that without a cell phone in the modern world.

and my point on riley, i appreciate what you're saying about limitations on law-enforcement. short of getting a warrant, it is quite clear that in situations for this exigent circumstances, there is potential risk of destruction of certain evidence. there's a risk of some kind of bodily injuries that there still be exigent circumstances so the officers many to decide they can search without a warrant. so there is range of options and riley doesn't cut off the other range of options. >> there is also one and riley were chief justice roberts pulled out a particular category and is not commenting of the debate in this particular area. >> relatedly and apple iowa state announcement is the government knows that his son is going to lock in that they won't be able to gain a foreign and what the effect is. does that create circumstances

that it is effectively locked out, flushed down the virtual toilet as it were unalike drugs could be last in the navy data will be last depends on questions and the government can access other ways, but that becomes an argument folks are not thinking about so much of the time of rightly. >> last two questions. >> is a law student i think may illustrate some analysts. aztec allergy increases, it becomes easier to survey out individuals. is there a point after which the individual does not have a privacy protection, whether it's constitutional, statutory or otherwise in their criminal activities. essentially the question is do we have privacy protections in crime generally? should there be privacy protections? >> last question. >> hello. you guys are terrific airtime in

information law attorney for the u.s. coast guard of what i come across every day is whether or not to disclose certain bits of data and information to the public. when we start talking about privacy and privacy rights and interests, i'm always intrigued because especially in light of what judge mckeown has said, as far as i'm concerned, i would just like to know if we are past this fully. have a way opened pandora's box and are we trying to get the genie back into the bottle? i know for example i can go to safeway and print out coupons because everybody knows everything about me now and i don't go on facebook. i do have a page there, but i never go. so really that is my question. how do we put the genie back in

the box? there is no delete delete. that's just my question. maybe a philosophical one. >> thank you very much. very much for privacy rights in criminal activity and second what i think of as the amazon.com problem. they say here's some books you might like and you do. they know more about you than you know at that point. any comments or the panelists and judge posner as well if you would like to comment. >> i mean, in terms of putting the genie back in the bottle, legislation can do that. they can say this data has been created, but it can only be disclosed in the following circumstances. there's been a lot of discussion of people put so much stuff on face the come up what it really means by that? is that the public exposed part of facebook in case we say the fourth amendment matter is available to everyone and

difficult to regulate. there's a lot of other information and current statutory privacy laws regulate a lot of it. it limits when providers can disclose information. noncontent information. we have long-standing rules that some of them need to be updated absolutely. but we have rules designed to solve the privacy problems with these recognized and try to limit those privacy harms. i don't think we should say it's all over. there's no time like the president when it comes to regulating these privacy issues because these are issues we are having exposure to and we know the privacy violation can be and we can step in and impose limits. i am not saying categories should be entirely unavailable to government access, that imposing a court order required that, by very specific and articulable fact, this is how we traditionally strike a balance

in the context and there is the reason we can't do that same day. >> i agree with that. it is up to us. technology is advancing. technology is increasing. it is decreasing the cost and obstacles, monitoring our every move. that doesn't mean we should just give up. it means that we need to argue about these things. we need to debate them. we need to think about how we can preserve privacy while also being tainting our ability to live in the 21st century. i think we can do that. franka what troubles me most is this information not only -- these digital advances not only radically reduce the cost to the government engaging in dragnet monitoring cannot but also radically increases the ability to do this without telling us. so one of the things most troubling about edward snowden and disclosures is that government was doing thing that

deserved unwarranted national debate and he didn't know what the government was doing in our name and we couldn't have that debate. we couldn't have democratic deliberation over the propriety of that conduct until somebody broke the law and disclosed the existence of the program to us. that seems deeply disturbing not just from a privacy standpoint. >> judge mckeown. >> is interesting to think about the two approaches on privacy. in one part of the government, the ftc and others are thinking that privacy should be protected. clampdown on facebook and others in terms of privacy protection and other arms of the government say we don't need any. you don't have any privacy, so we are going to take this data you have. i do think that our own government is really marching in almost parallel paths that don't seem to be intercepting very

well. my only last point is you just created a title for some new blog review article that can you put it back in the bottle, genie, et cetera. >> michael. >> addressing the question of whether the idea of privacy to protect criminal at committee, i don't think anyone thinks that. i think to the extent the government can use surveillance techniques to prevent or prosecute criminal activity, that should be a good game. so the point of protecting the fourth amendment rights of criminals is to protect kids are the rest of us to have some area of privacy in their lives deemed to be valuable for a variety of purposes. it is difficult to strike the balance in this regard because you cannot, i don't think you would want to live in a society

where the government was so hamstrung in its ability to combat cybercrime conducted on the internet anonymously from abroad or whatever so that you yourself are exposed. you would then feel violated and which the government would go after those kinds of people. there does need to be mechanisms under appropriate regulations, whether it's constitutional or statutory so the government can do that. we can see pendulum swinging on this and sometimes they may swing too far towards governmental latitude and sometimes they may swing far i'm trained to fire or overprotection of the right to a point where the government is hamstrung. i am not sure we have in that situation right now, but i think it is important to superspy at the in thinking about the rules have been, crowd across the border, there does need to be some mechanism for the government to protect against child pornographers because they

are carrying a cell phone. so given that there were traditional doctrines they can use to address that, you can't throw them all at the window and say now that their cell phones, cell phones are highly private and the government will be hamstrung in a way that will render it ineffective. where exactly the outline should be drawn is the question. >> judge posner companies started us off today. final word. >> for one thing, there is no evidence that people have less privacy than they did 50 years ago because if you live in a small town, you don't have any privacy, right? the more urbanization and the larger the population, the more people include themselves, you have an arms race here between surveillance and encryption.

not obvious who is going to win the arms race, right? in a turnout because of encryption technology it becomes very easy for people to protect their disreputable secrets. so there may be too much excitement about this. you know, the notion that people are becoming totally transcend to the world, sex videos in every bedroom. [laughter] so maybe the concerns are somewhat overstated about loss of privacy. >> so at oxford style, the question for this panel was taking account of new and emerging technologies. but fourth amendment doctrines, principles and policies ought to guide is for the future. i hope you'll join me in ink in our panelists for addressing the subject so well.

[applause] [inaudible conversations] >> you are some of the programs you will find this week and on the c-span networks.