bring attention to internet issues. this is really interesting collision of old and new and what are we hear for. so the fcc had notice of proposal of rule making. they want to make a rule update privacy rules for telephone providers. now what they call broadband service providers. our panel debates that and debates pros and cons of that. we go through a lot of material very quickly. rules governing privacy for broadband service providers, they include folks that provide cellular service, not the phone itself but the service i get here which is t-mobile, over your laptop or desktop which in my case at home is verizon fios. here is on the house public wi-fi. and so those are the types of services we're talking about, broadband service providers and these rules are covering them. let'slet's go to my first quest. jim arrived just in time for the people out there who, gnawing question is like, that name

sounds really familiar, jim halpert where you know that from. you're giggling jim halpert, and first comes up is the guy from "the office." jim is actually named, he is inspiration for jim halpert from the office. >> that's right. much less exciting that on the actor. for what it is worth i had dinner with the real andy bernard, who is another childhood friend who was in town for a world bank economic conference. but let's talk about how this arose first. >> yeah. >> the fcc has been trying to find a way to impose net neutrality requirements on internet access providers and after a couple of, well, attempt, it decided to classify them as common carriers. and, just by virtue of providing broadband service. when the original cp and i law

was passed, internet access providers were considered independent, internet information services and were not regulated at all by the fcc. this new classification, through a quirk in the way federal trade commission works are outside of the authority of the federal trade commission. before this order internet access orders were, anyone else in the internet echo system. just the fcc rule changing the way that the service is classified for purposes of telecom that all of sudden we have this change in authority over internet access service. >> internet order, aka, net neutrality. >> right. >> what is the commission proposing?

basically proposing a privacy regime including notice, telling people, consumers what their privacy rights are choice. whether you can opt in or opt out or keep them from doing that collection. and then security which is like how, are you going to keep my data secure when you collect it. what does the rule kind of specifically look like? and what is this cp & i thing people are hearing about? >> people don't know the exact text because it hasn't been released. but based on discussions in public it sounds what the fcc would do require enormously long list of information to be provided to consumers by way of notice of what the data practices of the internet echo service is and then set up a multitiered set of permissions, degree of opt-in or opt-out that would be required for the

internet access provider to use information that is obtained by virtue of providing this service to consumers. so there would be a very unusual opt-in consent requirement for any disclosure of information to a third party. we'll talk about that, how that may be a little less unusual. certainly internal uses of information for purposes of, for example, of advertising or marketing that would be sharply restricted, unless, requiring an affirmative o-in consent, unless, the marketing was for something that was related to communications services the an existing service a consumer would require. there would be opt out for certain marketing. it would be opt-in with a o-out rule in place for marketing, communications services or

marketing those services through an affiliate. >> if i could jump to laura. for the average consumer at home what does it mean for them? what does it mean for their privacy? what companies are they interacting that will be covered by this rule? and kind of what is so unique about broadband service providers we need such a rule? >> i will try to take those, i will try to get to all of those and just give you a little bit of background here. before we start talking about consumers and exactly what this means to them i think it is worth talking to them about the objective is with respect to consumers of the law in the first place. so, you know, this is something we could probably discuss at length because i'm sure there would be differences among us panelists over what the primary goals of the statute are here. but, basically, the section of the communications act that governs, that governs common

carrier privacy, privacy obligations of common carriers which in the past were phone providers now include broadband provide providers, essentially had two goals, right? protect the privacy of information consumers have to provide to carriers to get service. when you're talking about common carriers you're talking about companies where their primary function is to carry the customer's communication from one end to the other. and, so in that context, if you're making a phone call or browsing the internet, or using any online service you have no choice but to provide certain information with the carrier about the traffic. so with a phone call you have to provide information about the phone number that you're calling, length of time you're talking on the phone, et cetera. and with internet traffic it's kind of similar. you have to provide information about, you know, enable as broadband provider to route

traffic from one place to another. so the customer pays the carrier for service. and has to provide information about their communications in order to get that service. and one of the goals of the law is to protect that information. basically to make sure that the information isn't then being used for other purposes other than to direct the track or to direct the calls, without the customer's approval. and then the other objective is a competition-based objective where one of -- fcc, we'll for decades prior to, to the 1996 telecom act had been regulating customer proprietary network information. you will be hearing us refer to this as cpni, had been regulating on on a competition basis. if you have carriers seeing a lot of information about relationships their customers have with other customers by

virtue the customers are calling other companies there might be competition problems presented if the carrier can then use that information to use itself as competitive edge to compete in other markets. a really good example is a alarm service. if you're getting home service from one provider then your phone company, if your phone company starts offering a home security system it knows who you are a customer of home security. it might know when you had a incident based on your call logs. it might know how long you're contacting customer service with that other home security system, et cetera, and that could be information it could use to gain an entrance. these are kind of the two goals. for consumers now, broadband has been classified as common carrier service routing communications from one service to another, this means broadband consumers could have similar privacy framework to what has been instituted with respect to

phone, information that they provide to their phone carriers. they can expect to have very similar protections in place with respect to the information they share with their internet providers. so the webb sights that you visit -- websites that you visit, services you're using that you're in contact with, the destination of your traffic and origin of it, duration, the amount of traffic, that type of information as jim described will now be subject to this sort of multitiered consent structure. >> that information would be protected and isp would not be able to collect it. does this rule apply to sites like google, like twitter, like snapchat or apps on my moto, motorola phone and printing system? >> that is a good question. just to address one part of that though, these riles are not about collection, they are about use in general. so that there is an assumption

that carriers have to collect the information. that customers have to provide it to carriers and carriers have to collect it in order to provide the service in the first place. so yes, that was that aside, these rules don't apply, at least, you know, based on what we know about the proposal again as jim said, we haven't seen the text of the actual proposal yet but based on what we know about it, no, it would not extend to edge services. >> okay. >> so there are companies that provide both edge services and internet carriage, and, when they are in the business of providing the, providing broadband access, then they would be subject to fcc rules that protect information in that conn text, when they're in the business of offering an edge service. >> so the phone i have in my mind wouldn't apply to, looking at my apps, wouldn't apply to my fitbit app, wouldn't apply to my google mail, my pandora or even

operating system and this happens to be android operating system? the other major operating system, you may have heard of it, ios by apple. >> been in the news a little bit. >> yeah. >> that's correct right, it would not apply to those other entities. this is just about broadband internet access service providers. >> let me ask whether cat at that atrina wants to weigh in. this is regime similar or different to other privacy regimes we have in the united states? we had briefing down the haul on the e.u.-u.s. privacy shield. we had a fellow from the european commission. the reason we have to do this kind of bandaid because the u.s. has inadequate level of privacy protection in our opinion, meaning the european commission's opinion. what is so special about this particular broadband service

provider? what do they say that is so special? >> you want to jump in? >> thank you for the question. you have to look at whole context of this data. not so much particularly sensitive data but whole context. a customer, who uses internet at home or on the phone, there is a lot of amount of data being collected. it is sensitive and detailed information there is really not that many options for a customer to sort of switch the provider or evade the situation. it is amount of information and details. we need the opportunity for the customer not to go anywhere else. if you think about the whole, the kind of profile that can be collected about a user, a lot of important in-- inferences made about a user.

user patterns you can draw conclusions whether is unemployed because they suddenly start using their home internet service more frequently during the day time as the kind of devices that are being connected to the internet again in the home setting, for example, a pacemaker or you know, your fitbit. there is a lot of information that can be gleaned from that. so it is entire context you have to look at. i know that the ftc, for example, looks at the sensitivity of data. fork, says, with regard to health information, you should, particularly sensitive there. is an opt-in required. also the purpose of data. we get into a little bit more when we talk about proposed rules. it looks at the, the entirety of the data, what is it being used for. i would be happy to go into that a little bit more. >> we'll come back to the two

points about not being going to somewhere else and uniqueness and sensitivity of data but we can come back to that. let's go quickly to debbie. focus more on the mobile ecosystem and that is what your members represent. >> the mobile ecosystem, one of the companies that provide con next tivity. isn't always the same isp when you use your tone. at your home you might connection to home wi-fi. you're on network connection. you might connect with work wi-fi. if you go to coffee shop, might be on coffee shop wi-fi. you might use connection in the park because you have no park connection. throughout the day you're certainly using more than one isp and if you take look back at the original purpose of the privacy law we are talking about here, the communications act, you're looking at the voice

services market. you really had one phone company in 1996. you made a phone call to your house. they delivered it to someone else. that was only two companies. everyone within the phone services market was covered by the law. here by applying that same law to internet service providers you're only applying it to a tiny subset of number of companies delivering internet service to you. so from the isp's perspective doesn't make a lot of sense and really from the consumer's perspective it doesn't make a lot of sense because there is a lot of confusion that will ensue one set of rules for isps and other companies handling exact same data, some cases even more data because if you think about using your phone and bouncing around from one isp throughout the day you might be logged into services throughout the day consistently no matter which isp you're using. if you have email provider,

social network, you may be logged entire time to the social network or email provider or search engine could see your activity throughout the day where any given isp would only see a fraction of that. >> you have a difference of opinion between you and katherine. katherine says the sensitivity of the data it is unique. you're saying that the data the isp would collect isn't all that different from what other apps or operating systems would collect. why are we being treated differently? is that the point of con tens? >> i think so. the market changed so much, the smartphone has changed so much of the way we communicate. while in the in the '90s, everyone had internet home connection and worked on computer couple hours, maybe you turned connection off because you had to dial in. now we have always-on connection and seeing isps all over attorney it's a very different

market and there is a lot of competition especially in the wireless market. think about watching super bowl how many were for ads for wireless companies trying to get you to switch from one wireless provider to another wireless provide. unlike when this law was passed where there was monopoly phone provider. >> one of the challenges here, in the overall internet echo system where there is potentially tracking of users in a variety of different ways probably the simplest thing consumers can understand, they can go one place, opt out, exercise control. if you read the legislative history of the cpni law congress passed part of the telecom act, the key concept was to give consumers control. control can mean an opt out or an opt in. if you're in a market, there is small percentage of market

markets in the united states where there is only one landline isp if you have opt out, you can have a choice provided that is presented clearly. similarly the rest of the ecosystem in the internet, there are self-regulatory mechanisms like the digital advertising alliance optout. one could work on that further to spread adoption even more broadly. isps could be part of that. if this order goes through, isps will be subject to unique, far more restrictive set of privacy rules that apply to virtually any other sector in the united states and they will be separated out from and not part after unified system where consumers will have control, consumers may not understand, probably won't understand, the opt-in request from the isp doesn't apply to anyone else in

the internet universe. >> go to katherine or laura, we need to clarify what o-in or opt-out is. isp has to say to the customer, we'll provide this service and use this information in a following ways. here it is here it is. you have to do something. that is opt-in. they provide you notice generally, i don't want to do that, click on something that says, exempt me from that. it is manifested in a lot of ways. this is a opt-in regime, why should this be opt-in regime? can you defend that portion? >> this is really important distinctions. opt-in requires an affirmative action. opt-out assumes you don't have objection which you know, okay. here is what the fcc right now, we know this from the fact sheets, we do have some idea what they have in mind, sort of these three buckets with regard

to the use of the data. the first bucket is implied consent. you don't really need to ask the customer to do anything because you might need the data for maintenance or security purposes. then also for a service that is, for marketing using data for same type of service the customer already has. no action is needed. say you have a data plan and need upgrade for that so no further action is needed. when you look at the opt-out regime they're proposing. you have to look at use of data for marketing related services. these are use of the data that you signed up for a particular purpose now. isp wants to market you related services. seems to make sense you can expect the customer would be interested. it is related. there is certain expectation that make sense to say we assume

you're okay with this until you tell us otherwise. the third bucket is really for any other purposes, to use the data for any other purposes. i think it is fair to say you can not assume that the customer is okay with that, unless they tell you affirmatively yes, i would like for you to tell me what other things you can offer me. then i agree to that kind of a practice. i think you have to look at the purpose for the use, and that is really critical. and, so i think that is sort of a fair proposal. >> that kind of scheme is found i don't think that ever found anywhere in the rest of the marketing rules that apply to companies in the united states. that's on. now it is on. >> i'm sorry. go ahead. >> think about a company that is going for clothing and they decide to go into the shoe business and go into completely different business, they're selling hardware or something, they're fully able to sigh, hey,

we saw you bought some clothing and we'd like to sell you something completely different and they're not restricted from doing that. so i'm not understanding the sensitivity of marketing different kinds of products and services especially when customers probably want to get discounts on different products and service as company might offer. example of that, yesterday or day before, sprint came out with new offer, get amazon prime by the month, as opposed to amazon prime for the year and this would be a benefit if you only want amazon for say the christmas season. want free shipping for example, during christmas season and don't want to pay for it for the whole year. amazon, sprint, would potentially, i don't know, these rules are a little unclear, we haven't seen them yet, they would not be able to market that to their customers and let the customers know about the new offer unless the customer affirmatively said i want to get marketing offers from you, as opposed to saying hey, here is a

marketing offer for amazon on monthly basis. october, you are getting ready for christmas shopping, customer could say, i don't really want that, tell them not to send it to me anymore. a lot of customers will say, wow, that is a great deal. doesn't give them a choice if they have affirmatively say back in february when they sign up for service they want marketing emails or not. how will they know that the amazon offer will be so great for them? >> i think, i would challenge actually this argument that we don't have anything like this anywhere else in the u.s. privacy regime because of course the most obviously the place we have similar framework with respect to phone information. with respect to information customers share with their phone carriers where there is very similar, there's a very similar privacy regulatory framework that applies to that information. the information that a customer shares with their phone provider or that the phone provider has access to solely by the

carrier-customer relationship. phone carrier can use on opt-out basis for marketing of related services. it is on an opt-in basis for marketing of unrelated services. again i think there is a couple things here. so one is, if you're talking about what the privacy justification for that type of regime is, well, again, it is important to remember privacy is context specific. consumers think their privacy is violated when their information is used out of context in violation of norms they apply to the way they thought information would be shared in context which they first shared it with the provider. and you know, and we do see, in the phone context or in the internet context we're consumer is sharing information for, with their carrier for purposes of routing traffic, or for purposes of routing phone calls, they expect that the information will be used in that way, and not

that it will be used for marketing purposes. we see this in other types of information or, other contexts where consumers have no choice but to go through particular provider for service we think is generally essential, like health. >> let's unpack that a little bit, right? in the united states we have this kind of patchwork, i'm not saying that in negative way but we have different types of regimes for different types of privacy. so for instance, the congress passed the cpni law in 1996 which is being updated. gramm-leach-bliley covers financial information. we have hipaa, health information privacy act. those are related generally related to non-internet types of data. really the only major legislation we have related to internet information, copa

children's online privacy protection act. that is overlay. jim, correct me if i'm wrong, i'm not expert, you guys are, federal trade commission section 5 act. federal trade commission says if somebody says we'll protect your privacy, we'll do it this way and not give your information here but use it for this, if they kind of make that promise and fail to follow up with it whether online or off-line, federal trade commission which is other cop on the beat here can come in and say you didn't do what i told the customer you would do with their privacy and we'll slap a 20 million-dollar fine on you. >> firm, the democratic controlled white house and majority democratic-controlled ftc, issued reports on privacy the way they thought privacy should work in the united states. established a bunch of best practices that are widely followed in the business community. and both of those thought that there should be no choice whatsoever offered with regard

to first party advertising, not opt-in, not opt out. the e.u. data protection regulation which you heard privacy discussion last week europeans think is way tougher than u.s. privacy law of the does not require opt in consent for first party advertising. so this is, this part, this first party advertising aspect of the cpni rule is, would be the toughest or most extreme however you want to characterize it, restriction on use of data by entities you as consumer have a relationship with in u.s. law. if it were to go through without qualification. in the health context there are limits and in some aspects, first party advertising is prohibited. your doctor can't come to you, and say, hey, you should use this drug instead of that that drug. they can put up signs but they can't use your information to go

propose that to you. but if you go to a hospital, some of you may have had to do that for good reasons or bad reasons, and you enroll, you check into the hospital, you get marketing communications from that hospital because they know that you have been to the hospital. they start offering you other sorts of services and other sorts of things through their hospital. this would be, a limit only on offering essentially existing types of services that the broadband isp currently offers to consumer with small types of upgrades. give you an idea how that is different, or how that made sense in the context of a telephone network which laura was talking about before, as of 1996, when the telecom act passed, from what the way the internet is today, you need to think about what the competitive purpose of the cpni law which laura described second. if you read the cpni law, there are requirements on the

incumbent carrier, incumbent phone company to disclose to competitors subscriber lists. so the competitors can go market to them to try to get service or shift service over, if they choose to sign up with a competitor. there are restrictions against trying to win back customers if a, if a customer decides to switch to a competitor, and the competitive concern, if you look at the original cpi rules is that the incumbent, which has all these, your local telephone company, which had all these customers, would use that information to try to keep large control of the market, in the context of the telephone network which was as debbie explain ad closed network, there was no question about advertising. there was no advertising over the phone network. we're in a very, very different world in the internet where there is a lot of advertising and this would effectively be

saying only for this category of people need to opt in. >> you're saying two things, coming off my about different types of privacy regimes for different types of data, you're saying no fair, that isps are he would to the higher standard than to other privacy regimes. >> more important confusing. >> and number two -- >> customers can't get offers they get from other companies. >> competitive environment which original cpni rules are passed, i'm not saying you're saying not seem to make sense. ask katahrina and laura to respond to that. >> with regard to consistency and clarity. ctc, host of public interest organizations active in the space we have long advocated for baseline privacy protection information for all the players in this space. absent some legislation which is unlikely to come anytime soon,

with the ftc having authority and responsibility to protect privacy of broadband customers. we feel they have to take the step and that is an important step. we'll see what has to happen afterwards but that is the sort of the context we operate in, and we feel that the consistency is important goal but it is not for the sake of consistency. we want to have the right protections the right standards that we customers feel that they have control over their data and just to pick up on this control piece, i think we have to look a little bit at the evolution of the space and we have, you know he, yesterday the commissioners, many of them cited a pew study come out earlier in the year and another study from the annenberg school in pennsylvania, talked about how customers, internet users lost a sense of control over their data. they have resigned. they feel, they don't trust institutions in the space. so i think for the purpose of

robustness of economic development and people really wanting to engage in the technology it is really important to give customers and users and citizens a sense of control over their data back. >> the problem though, if you give control to customers, over a tiny segment of certain companies that hold the data, when the data is snowing -- flowing freely through all the ecosystem, they get a false sense of security because i opted out or opted in, that will aply across the board but it does not. not companies they directly enter act in like social networks and search engines, but companies behind the networks, companies they never heard of, data brokers. they may not appreciate the operating system on their phone is seating all the data and seeing unencrypted way. isps as we talked about a little bit already about encryption, a lot of the internet is becoming encrypted.

so the independednt sps are unable to see any of the data that's encrypted and at the same time the other companies on the internet can see that data. there is real disparity, sort of like taking a howitzer and shooting at a mosquito. like a tiny little segment of the ecosystem and all that data will go everywhere. >> i have -- >> sorry. >> i have a few things. one i think there is definitely a desire by the companies, an understandable one, to try to make it sound like isps and other companies operates on internet and collecting information and marketing with it are the same type of entity and consumers have the same type of relationship with them but they don't. consumers pay their isps to provide them with service. they pay their isps to get them connected to the internet. then once they're on the internet they make choices what services they will use online or

on the internet or however they're using the network. and, and that's-- but as initial matter they have no choice but to go through an isp in order to get on to the network in the first place. that is different. you know, there is a different value exchange where they are exchanging money in a subscription, generally in a subscription context for access to the network. that's what they're paying for. that's what they expect they're getting. there is this difference with respect to the fact they have to go through an internet access provider to get on there. i can choose whether or not to use a free email service where i understand that i'm sharing information about my communications with the email provider. i'm sharing that information in exchange for, you know, for getting email for free but i can't choose whether or not to build a relationship with an isp and share lots of super sensitive information about my communications with them to get on the network.

>> that's really interesting. so what you're suggesting is at least in part, and this is the only the first part of what you're suggesting, that consumers and customers and people using the internet have come to this convention of their expectation of privacy if they pay for service that they want to just get that service but for the free services on the internet like twitter facebook or snapchat, there is a built-in assumption they're bargaining for free service they're bargaining something, maybe it is perhaps advertising? >> i'm not necessarily saying that is always the case. i think there are probably situations where people -- i think it is questionable in some situations whether people understand the information they're providing will be used in whatever, they clearly don't read privacy policies. they don't necessarily understand how information will be used in exchange for a free service. i think relationship they're building with their broadband internet access service provider

is one they believe that the relationship is one where they have subscribed to a service specifically to go online and that is the service they think they're getting. not an advertising service. >> go ahead. >> chairman wheeler, he said in his statement most of us understand that the social media we join and website visits collect our personal information and use it for advertising purposes. he is suggesting what you are suggesting but you're not stressing as long as he is stressing it? >> in some ways it is an empirical question but i think in general people understand more how their information will be used or consider consider it in option of considering an optional service, than when engaging in a service that is essential. from the point of first party, first party uses of data, again, like, you know, there are different types of service. you can expand, if you're a company that provides internet service and you want to expand into advertising that's fine but

you don't have a right necessarily to use the information that you've collected in the context of routing traffic in the broadband access service, provision of broadband access service. you don't have a right to use that information to build this other business. and i think a health insurance company expand its business into advertising, you know start moving into, whatever, start up an advertising arm because it is a giant and has a lot of money and wants to move into advertising you wouldn't say, okay, yeah, go ahead and use -- this is first-party use of information. go ahead and use all the information that you know about insurance. >> but wait, we're talking about opt in versus opt out. we're not saying they have a right to do it without any choice. we're saying why should consumers have to choose specifically to get better deals on products they might want to get? why can't they get the offer, if they don't like those offers anymore they can opt out like all the other companies in the ecosystem? there is nothing unique about an

isp offering the deal than -- so uber has cars they drive you around. all of sudden started offering uber eats. should they be prohibited telling you about uber eats unless you specifically said i want to learn about food offered from uber? that doesn't make any sense to me. >> in terms of framing the debate you opt in to get better offers or additional offers, i think what a lot of folks again in the public interest community and also civil rights groups pointed out this data also can be used to sort of disadvantage you. it is not always about you getting great new offers but there might be information gleaned from you might be used to your disadvantage. it makes a lot of sense people want control over that. >> first of all the naacp president has written saying it did not make sense to to focus on it particular area. secondly, a lot of advocacy of

this proposal and even the logic what the fcc has said, well, there might be particular uses of information which are unfair to consumers discriminatory, intrusive. the way that the federal trade commission approaches this, is to say, there needs to be opt in for specific types of uses. laura also equated an isp a few minutes ago with a hospital or health care institution that opens a health care advertising network. that under the federal -- >> i didn't say expired, equated but sure. >> you draw a analogy. >> the point is if there is sensitive data through obtain internet service and framework that applies to the rest of the internet ecosystem, it makes sense for the fcc now that it has done something regulatorily, it rules the roost, it should apply the same set of standards

which would be opt in for uses of health data, prohibition against use of information in a way that would discriminate against consumers. if there was analysis of absolutely all the data that traveled through a system that might also be worthy of opt in consent. what we're seeing in this proposal opt in consent is the requirement for all of the these buckets of uses regardless of when there's any health data, any discrimination or anything else. i think we need to take that off the table for purposes of the purpose of this because it would be much more narrowly tailored and precise to focus on things that actually might cause some consumer harm. from what we know about this proposal it also applies, not information that contains your name but information that could be used to identify you. so it is very, very broad. all the data an internet access provider might have might be linked to your account even if

it is not in fact linked that is a huge amount of information subject to your regulation. >> we're scratching surface. i'm sorry -- want to drill down on two points, before we want to go to questions from the audience, but before we leave, i would just ask you guys to try to explain what happens from here before we leave? what is the role of congress in this entire rule-making process since they originally wrote the law? so, any questions from the audience? john. he will bring the microphone over to you. it won't go through the speakers but through the networks so talk away. >> john -- carnegie mellon university. two of you emphasized the fact that there are different rules for different players but the fcc -- if what you want is the same rules everywhere, the fcc can't giver you that. they have title one authority over commercial broadband internet access providers. they don't have authority over starbucks when they provide me

internet access. the only way to get that is legislation. so are you calling for, congressional staff in this room, are you calling for broad-based privacy regulation across all of these legislation across all these providers. >> do you want to opt in for privacy legislation from congress or you want to opt out of this fcc rule? >> i think to be clear the previous fcc requirements with, which can be placed into regulations under the fcc's own framework, there is a proposal that was submitted to do that. >> yes. >> there is nothing to stop the fcc, if it's going to, as it is proposing in its talking about regulating all information, not just cpni received by an internet access provider. if it has the authority to do that it certainly has the authority to go beyond the

structure of cpni and to replicate essentially the fcc framework, excuse me with, opt ins for use of sensitive data, opt-ins for disclosing any information that might be used for profiling or ways that might discriminate against data. all that is within the fcc's authority if it says it can regulate all customer information. >> there are two-ways to do this to answer your question. you can pass legislation, there is many support among the industry to have one overriding privacy law to simplify everything in the united states. that is certainly, not all of the industries unified behind that but there are some. what jim was saying to harmonize it with the ftc's framework is a good way to go because the ftc's framework resulted in very strong enforcement actions against huge companies. i'm not going to name them here, but huge companies you have heard of that last for 20 years

and provide really strong protection. but at the same time there is enough flexibility in the ftc framework, unlike what the ftc is proposing enough flexibility to allow for all new kinds of innovation we've seen last 20 years in the internet. that is the model supplied across the internet so far. to try to pull into a very restrictive scheme where there is lots of very specific notices and very arcane choices will not promote any kind of, it will make it really hard to make innovation around isps. so i think, it's a serious question to ask as to how we want to move, what direction we want to go? do we want to go more prescriptive or everybody or want a more flexibility system that served this country very well especially compared to other companies that don't have as much innovation. they don't have silicon valleys. >> that is question going on in my view 18 years certainly very strongly. before we leave john's question, let me go to katahrinas, john

suggested why don't you go up to the hill to ask for privacy regulation across the board and be opt in, would the center for democracy technology support omnibus privacy legislation on the hill and would it be opt in or opt out? >> we've been on the record, with he would support based on privacy legislation and i think we have to look again at the particular context of the data and the purpose of the data, whether that's, you know, whether it is opt in or opt out. it would have to be differentiated. >> so, if i can just add, so i think, it is worth noting these are not mutually exclusive options, right? it may be the fact, i would argue it is the fact, that it is appropriate to have high standards for internet service providers because of this special relationship that they have with consumers and you know it's a relationship where you want to encourage consumers to build this relationship, to get on the network, to be willing to connect and then to consider the

services that they want to use online accordingly but not be afraid to take the first step to get online because they're concerned about these possible brook tests, that isps might be engaging in. and opt in from time to time work for that is great for that because the default is privacy protection. do nothing. go online, build a relationship with your isp do nothing and there will be very strong protections for your information, the information that you have to provide by virtue of the carrier customer relationship. information they're optionally providing in other context, maybe it is appropriate to have a different framework but not in this context. that is not mutually exclusive meeting baseline privacy legislation to protect information that is sensitive, maybe is being used already in ways that consumers don't agree with and maybe the fcc frail work is not adequately addressing and yes, and -- >> might have made sense back

when there was one isp per person but as i was saying earlier there are so many isps and so much competition in the marketplace, let the isps compete for this kind of business. >> i hope -- >> it is so different than it was back in 1996. i appreciate your point, the market has changed so much. >> it is different but no matter where you are you are going through first through an isp and then online. >> going to free wi-fi hot spot not regulated by fc. they can use your data then? because they're not regulated by the fcc. >> if you see what consumers do in the course of a day, they access the internet at work. they access the internet at home and access the internet on their smart device. they may go through a bunch of wi-fi locations. none of those entities have the information in the context the way the consumer -- >> i don't think that is true. >> you're positing one internet access providewer a special relationship.

think about how, when i connect through the house wi-fi i'm entrusting the data that flows through unless i put in a bpn, when i connect at starbucks same thing this is not the monolithic world of 1996. i think you're positing a special relationship here is without polling data to support it is questionable but you have in any given situation, if you, if you have a customer that's paying you a lot of money, you're going to be very cautious, and i think you see most of the independednt sps being very carb -- isps about advertising. >> was that satisfaction to your answer? any other questions? ma'am? >> wait for -- >> thank you. i find a lot of inconsistency with your argument, you say these offers are so valuable

consumers would feel terrible if they didn't get these wonderful offers from sprint or whoever. if it is so wonderful why you so assuming the consumers would not be jumping a the chance to opt in. >> they may not understand what the offers are going to be. say you sign up for service in january with a new isp, they say oh would you like to opt in to marketing offers? i don't know. they will be really great marketing offers because they can't specify what they are, because they don't know what they are yet. back comes october and there is great marketing offer for free shipping on amazon or something, and they can't make the offer because you haven't opted in? i just don't understand how consumers are going to know what the offers are before the offers are even out there? >> can i ask, don't mean to hijack your question, but what is the practical effect of opt in versus opt out? we're throwing them around pretty casually here. >> how does it hurt to get an offer? that is other part i'm not clear

on, just getting offer and you end you not taking it. you get offers all the time. >> [inaudible] -- aren't getting the offer because i assume amazon and sprint are going together to offer this to somebody they're doing it on basis of some kind of data, whether it's, you buy high-end data package that you never use. okay, maybe you will buy a high-end delivery package and high-end video package, prime is both and not use it that much, increase profits to amazon but some consumer could really use this wonderful per month thing for december or whatever. they're not going to see it. they're basically going to be red lined. >> why do you assume? that what is the interest in not trying to get as much of the market as you can? >> you want to get the part of the market that gives you a profit. you use the data find a part of the market where the profit --

>> you're supposing, you're spousing that there isn't an interest in serving middle and low income consumers. if you look at the money that, for example, comcast has put in hundreds of millions of dollars to wire low-income neighborhoods so they get broadband. >> buying by the month. >> but it could be something else. you just don't know what it is. i'm not saying this is wonderful opportunity for consumers. that is not my point but to assume there will always be nefarious conduct in advertising is, wouldn't really be economically rational. >> it would also, it also would apply to the entire advertising ecosystem which isps are a blip. most of the online advertising, 70% is by 10 companies and none of those companies are isps. >> katharina and laura dying to answer the question. >> i'm pretty confident that companies can come up with preet

creative ways to explain the value proposition thers customers should opt in. to opt in they have to make the extra step. if opt out the company doesn't has to do a whole lot. the assumption is until the customer objects you can market. i'm pretty confident that companies come up with creative way. >> i'm sorry, if i can just add, i think it is also worth noting, again, this regulation that is title two privacy regulation, the regulations we're talking about apply to internet service providers or are being proposed to apply to internet service providers, we haven't seen the text yet and we're not sure where it is going to go. a lot of these are great questions that will be addressed in comments in the record. this is activities-based regulation. it is not entity-based regulations. what that means, if a company is both an internet service

provider around the operator of an advertising network, then it can continue to operate under the ftc's under the ftc's generally opt-out framework with respect to privacy regulation in this area where it is engaging in advertising. it just can not use information collecting from broadband customers in the context of providing brand band service that broadband customers are i have abouting it to rout their traffic for that use alone. it can't use that in the advertising context without opt in consent. >> we're running out of time. if anybody has a real burning question they want to ask, i want to finish with the last -- there will be a lot of questions about how much can, this goes to the heart of the question, how much, the unique perch that isps and broadband providers have about data, you will hear a lot of debate how much they can actually see. people are accessing at wi-fi at

mcdonald's or accessing house public wi-fi or a lot of the data is encrypted. that is a question we don't have time for today. you will hear a lot about that one. i will ask you to ask a lot of questions about that because there are differences of opinion. . . i think there's no consensus, exactly when today maybe, maybe next week early. it will extend through a good half of the summer and will be an opportunity for companies, consumer advocates, other parties and members of congress to comment on the record.

congress is faced with a fractured set of laws that apply to some companies do not apply to others that holding the same data. i think congress does have a strong role to play to smooth this out and make sure that data is what's protected, not just data that is held by certain companies. >> we will be seeing hearings and more discussion on the about those rules, is that fair to say? >> yes. >> i will let you what one last parting comment really quickly. >> want to think about is whether you're satisfied with the members you work for, satisfied with the speed and availability of broadband in your congressional districts. in connection with that think about whether you want a unique pretty burdensome regulatory structure to apply the use of

data is obtained through providing those services. and then think about how easy it is to set up an internet advertising business with almost no capital investment here think about what that might do it investment in your district. >> i'll touch on the point we didn't get to which is encryption. this is a debate that much broader. but there is more encryption. the more encryption with going forward a less biased before going to see a terms are very clear in this direction. just thin think about that as yu think of some of the other larger encryption debate. how it could impact this proceeding because regulate isps more winter seemed less and less every week because more companies are encrypting it's a question that needs to be considered. >> it's really excited about this today because we think this is a really important debate for our society at large and i would

encourage everybody to broaden this. constituencies and educate people, get involved in this debate. i think it just really touches upon some fundamental issues. the more educated, the better. so thank you for holding this. >> as my final parting thought i think it's poor for us to think about the justification for some of the really strong privacy laws we have. it's to protect relationship where we really want people to have, to engage fully with an entity and to free and open communications. that's why we're strong health privacy laws that people will go to the doctors and feel free to talk to their doctors about their health status, it's why we have lawyer client confidentiality which many of us in this room i am sure are well aware of. so that clients feel free speaking candidly with their lawyers. it's a reasonably strong privacy

laws that apply to internet service providers so that people can take that step of going online and know that the traffic is going to run it through an isp without being concerned about how that information will be used. >> i'd like to think they co-chairs. thank the panelists and thank you, everybody for coming. thanks so much. [applause] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> the nuclear security summit has been taking place in washington the last couple of days. later to we would remark some president obama. you will speak at the d.c. convention center. it starts live at 5:45 p.m. eastern on c-span. >> here's a look at our primetime schedule on the c-span networks.

>> tonight on c-span, the supreme court cases that shape our history come to life with the c-span series landmark cas cases. >> john marshall in marbury v. madison said this is different.

the constitution is a political document. it sets up the political structures what it's also a law and if it is a long we have of course to do what it means and that's binding on the other branches. >> a sense of dred scott apart is the fact it is the ultimate anti-presidential cases, exactly what you don't want to do. >> who should make the decisions about those debates. kinloch diversity of the supreme court said it should make the decisions. >> and tonight we look at the case helped define the limits of the first amendment right to free speech, particularly during wartime. creating a clear and present danger standard. tonight on c-span and c-span.o c-span.org. >> american history tv on c-span3 this weekend saturday night at 10 eastern on we'll america. >> all jobs which are tough, dirty or i was are generally referred to as -- understandably

then this is the only area in which the american farm labor supply falls short and is supplemented by mexican citizens, sometimes called nationals, are mexican nationals. but the term most commonly used is -- in spanish this means a man who works with his arms and hands. in short, the big question in many minds is why this term speak with this 20 minute film produced by the council of california growers promoted a guest worker agreement between the u.s. and mexico from 1942-1964. sunday morning at 10 eastern on the road to the white house we want. >> my view is that the soviets are aggressive, they've overstayed in afghanistan, they've bitten off more than in my judgment they should be allowed to digest and i think that the best answer to get is for them to know that the united

states is going to keep its commitment. >> i agree completely. where people want to be free from soviet or cuban domination with a proxy troops used by the cuban. the united states you be willing to provide weapons to any men who want to fight for the freedom against those forces. >> the 1980 texas republican primary debate between former california governor ronald reagan and former cia director george h. w. bush here at six on american artifacts -- >> it's also the least of the classical buildings. it's very neoclassical. the dirksen building this sort of a mirrored image of a neoclassical building, but the hart building is very modern. some people have compared this to a large ice pashtun ice cube tray. it's a very different looking. >> inside the newest of the

three senate office buildings, the 1983 hart senate office building to learn about its cotruction and place in congressional history. on the presidency at eight, smithsonian national portrait gallery senior historian david ward chronicles abraham lincoln's life through photographs and portraits. >> rather exasperate a lincoln takes time off from riding the inaugural address and one at the war to sit for this last photograph in which he does look kind of peevish. notice again the eyes disappear. the sense in which lincoln and his presence to the public and to suffering. >> for the complete weekend schedule go to c-span.org. >> president barack obama has nominated merrick garland chief judge of the d.c. circuit court of appeals to fill the seat of antonin scalia on the supreme court. republican senators have vowed to block the nomination saying the decision ought to be left to the next president to senate

democrats have said there's plenty of time left in this your senate session to hold hearings and floor debate on the president's nominee. over the next few hours on c-span we are going to show you what some of the major figures of the senate today's debate have said in the past about the nomination and confirmation process for the supreme court and lower courts. including a summer 1992 speech by then senator joe biden which has received a lot of attention lately. we will start though with president obama in the rose garden of the weeks ago announcing the nomination of merrick garland. >> good morning. everybody, please have a seat. of the many powers and responsibilities that the constitution vests in the presidency, few are more consequential than appointing a supreme court justice, particularly one to succeed

justice scalia, one of the most influential jurists of our time. the men and women who sit on the supreme court are the final arbiters of american law. they safeguard our rights. they ensure that our system is one of laws and not men. they're charged with the essential task of applying principles put to paper more than two centuries ago to some of the most challenging questions of our time. so this is not a responsibility that i take lightly. it's a decision that requires me to set aside short-term expediency and narrow politics, so as to maintain faith with our founders and, perhaps more importantly, with future generations. that's why, over the past several weeks, i've done my best to set up a rigorous and comprehensive process. i've sought the advice of republican and democratic

members of congress. we've reached out to every member of the senate judiciary committee, to constitutional scholars, to advocacy groups, to bar associations, representing an array of interests and opinions from all across the spectrum. and today, after completing this exhaustive process, i've made my decision. i've selected a nominee who is widely recognized not only as one of america's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. these qualities, and his long commitment to public service, have earned him the respect and admiration of leaders from both sides of the aisle. he will ultimately bring that same character to bear on the supreme court, an institution in which he is uniquely prepared to serve immediately.

today, i am nominating chief judge merrick brian garland to join the supreme court. [applause] now, in law enforcement circles, and in the legal community at large, judge garland needs no introduction. but i'd like to take a minute to introduce merrick to the american people, whom he already so ably serves. he was born and raised in the land of lincoln, in my hometown of chicago, in my home state of illinois. his mother volunteered in the community; his father ran a small business out of their home. inheriting that work ethic, merrick became valedictorian of his public high school.

he earned a scholarship to harvard, where he graduated summa cum laude. and he put himself through harvard law school by working as a tutor, by stocking shoes in a shoe store, and, in what is always a painful moment for any young man, by selling his comic book collection. [laughter] it's tough. been there. [laughter] merrick graduated magna cum laude from harvard law, and the early years of his legal career bear all the traditional marks of excellence. he clerked for two of president eisenhower's judicial appointees, first for a legendary judge on the second circuit, judge henry friendly, and then for supreme court justice william brennan. following his clerkships, merrick joined a highly regarded law firm, with a practice focused on litigation and pro bono representation of disadvantaged americans. within four years, he earned a partnership, the dream of most

lawyers. but in 1989, just months after that achievement, merrick made a highly unusual career decision. he walked away from a comfortable and lucrative law practice to return to public service. merrick accepted a low-level job as a federal prosecutor in president george h.w. bush's administration. he took a 50% pay cut, traded in his elegant partner's office for a windowless closet that smelled of stale cigarette smoke. this was a time when crime here in washington had reached epidemic proportions, and he wanted to help. and he quickly made a name for himself, going after corrupt politicians and violent criminals. his sterling record as a prosecutor led him to the justice department, where he oversaw some of the most significant prosecutions in the 1990s, including overseeing

every aspect of the federal response to the oklahoma city bombing. in the aftermath of that act of terror, when 168 people, many of them small children, were murdered, merrick had one evening to say goodbye to his own young daughters before he boarded a plane to oklahoma city. and he would remain there for weeks. he worked side-by-side with first responders, rescue workers, local and federal law enforcement. he led the investigation and supervised the prosecution that brought timothy mcveigh to justice. but perhaps most important is the way he did it. throughout the process, merrick took pains to do everything by the book. when people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead, because merrick would take no chances

that someone who murdered innocent americans might go free on a technicality. merrick also made a concerted effort to reach out to the victims and their families, updating them frequently on the case's progress. everywhere he went, he carried with him in his briefcase the program from the memorial service with each of the victims' names inside, a constant, searing reminder of why he had to succeed. judge garland has often referred to his work on the oklahoma city case as, and i quote, the most important thing i have ever done in my life. and through it all, he never lost touch with that community that he served. it's no surprise then that soon after his work in oklahoma city, merrick was nominated to what's often called the second highest court in the land, the d.c. circuit court.

during that process, during that confirmation process, he earned overwhelming bipartisan praise from senators and legal experts alike. republican senator orrin hatch, who was then chairman of the senate judiciary committee, supported his nomination. back then, he said, in all honesty, i would like to see one person come to this floor and say one reason why merrick garland does not deserve this position. he actually accused fellow senate republicans trying to obstruct merrick's consensu -- confirmation for judges india since the judge garland would be a consensus nominee for the supreme court who would be very well supported by all sides, and it would be no question merit would be confirmed with bipartisan support. ultimately, merrick was confirmed to the d.c. circuit,

the second highest court in the land, with votes from a majority of democrats and a majority of republicans. three years ago, he was elevated to chief judge. and in his 19 years on the d.c. circuit, judge garland has brought his trademark diligence, compassion, and unwavering regard for the rule of law to his work. on a circuit court known for strong-minded judges on both ends of the spectrum, judge garland has earned a track record of building consensus as a thoughtful, fair-minded judge who follows the law. he's shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions. and this record on the bench speaks, i believe, to judge garland's fundamental temperament, his insistence that

all views deserve a respectful hearing. his habit, to borrow a phrase from former justice john paul stevens, of understanding before disagreeing, and then disagreeing without being disagreeable. it speaks to his ability to persuade, to respond to the concerns of others with sound arguments and airtight logic. as his former colleague on the d.c. circuit, and our current chief justice of the supreme court, john roberts, once said, any time judge garland disagrees, you know you're in a difficult area. at the same time, chief judge garland is more than just a brilliant legal mind. he's someone who has a keen understanding that justice is about more than abstract legal theory; more than some footnote in a dusty casebook. his life experience, his experience in places like oklahoma city, informs his view

that the law is more than an intellectual exercise. he understands the way law affects the daily reality of people's lives in a big, complicated democracy, and in rapidly-changing times. and throughout his jurisprudence runs a common thread, a dedication to protecting the basic rights of every american; a conviction that in a democracy, powerful voices must not be allowed to drown out the voices of everyday americans. to find someone with such a long career of public service, marked by complex and sensitive issues; to find someone who just about everyone not only respects, but genuinely likes, that is rare. and it speaks to who merrick garland is, not just as a lawyer, but as a man. people respect the way he treats

others, his genuine courtesy and respect for his colleagues and those who come before his court. they admire his civic-mindedness, mentoring his clerks throughout their careers, urging them to use their legal training to serve their communities, setting his own example by tutoring a young student at a northeast d.c. elementary school each year for the past 18 years. they're moved by his deep devotion to his family, lynn, his wife of nearly 30 years, and their two daughters, becky and jessie. as a family, they indulge their love of hiking and skiing and canoeing, and their love of america by visiting our national parks. people respect merrick's deep and abiding passion for protecting our most basic constitutional rights. it's a passion, i'm told, that manifested itself at an early age. and one story is indicative of

this, is notable. as valedictorian of his high school class, he had to deliver a commencement address. the other student speaker that day spoke first and unleashed a fiery critique of the vietnam war. fearing the controversy that might result, several parents decided to unplug the sound system, and the rest of the student's speech was muffled. and merrick didn't necessarily agree with the tone of his classmate's remarks, nor his choice of topic for that day. but stirred by the sight of a fellow student's voice being silenced, he tossed aside his prepared remarks and delivered instead, on the spot, a passionate, impromptu defense of our first amendment rights. it was the beginning of a lifelong career, as a lawyer, and a prosecutor, and as a judge, devoted to protecting the rights of others. and he has done that work with decency and humanity and common

sense, and a common touch. and i'm proud that he'll continue that work on our nation's highest court. i said i would take this process seriously, and i did. i chose a serious man and an exemplary judge, merrick garland. over my seven years as president, in all my conversations with senators from both parties in which i asked their views on qualified supreme court nominees, this includes the previous two seats that i had to fill, the one name that has come up repeatedly, from republicans and democrats alike, is merrick garland. now, i recognize that we have entered the political season, or perhaps, these days it never

ends, a political season that is even noisier and more volatile than usual. i know that republicans will point to democrats who've made it hard for republican presidents to get their nominees confirmed. and they're not wrong about that. there's been politics involved in nominations in the past. although it should be pointed out that, in each of those instances, democrats ultimately confirmed a nominee put forward by a republican president. i also know that because of justice scalia's outsized role on the court and in american law, and the fact that americans are closely divided on a number of issues before the court, it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that's going on in the news every

-- every day. but to go down that path would be wrong. it would be a betrayal of our best traditions, and a betrayal of the vision of our founding documents. at a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they're disposable, this is precisely the time when we should play it straight, and treat the process of appointing a supreme court justice with the seriousness and care it deserves. because our supreme court really is unique. it's supposed to be above politics. it has to be. and it should stay that way. to suggest that someone as qualified and respected as

merrick garland doesn't even deserve a hearing, let alone an up or down vote, to join an institution as important as our supreme court, when two-thirds of americans believe otherwise, that would be unprecedented. to suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the american people, might be treated, as one republican leader stated, as a political piñata, that can't be right. tomorrow, judge garland will travel to the hill to begin meeting with senators, one-on-one. i simply ask republicans in the senate to give him a fair hearing, and then an up or down vote. if you don't, then it will not only be an abdication of the senate's constitutional duty, it

will indicate a process for nominating and confirming judges that is beyond repair. it will mean everything is subject to the most partisan of politics, everything. it will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any president, democrat or republican, to carry out their constitutional function. the reputation of the supreme court will inevitably suffer. faith in our justice system will inevitably suffer. our democracy will ultimately suffer, as well. i have fulfilled my constitutional duty. now it's time for the senate to do theirs.

presidents do not stop working in the final year of their term. neither should a senator. i know that tomorrow the senate will take a break and leave town on recess for two weeks. my earnest hope is that senators take that time to reflect on the importance of this process to our democracy, not what's expedient, not what's happening at the moment, what does this mean for our institutions, for our common life, the stakes, the consequences, the seriousness of the job we all swore an oath to do. and when they return, i hope that they'll act in a bipartisan fashion. i hope they're fair. that's all. i hope they are fair. as they did when they confirmed

merrick garland to the d.c. circuit, i ask that they confirm merrick garland now to the supreme court, so that he can take his seat in time to fully participate in its work for the american people this fall. he is the right man for the job. he deserves to be confirmed. i could not be prouder of the work that he has already done on behalf of the american people. he deserves our thanks and he deserves a fair hearing. and with that, i'd like to invite judge garland to say a few words. [applause]

>> thank you, mr. president. this is the greatest honor of my life, other than lynn agreeing to marry me 28 years ago. it's also the greatest gift i've ever received except, and there's another caveat, the birth of our daughters, jessie and becky. as my parents taught me by both words and deeds, a life of public service is as much a gift to the person who serves as it is to those he is serving. and for me, there could be no higher public service than serving as a member of the united states supreme court. my family deserves much of the credit for the path that led me here. my grandparents left the pale of settlement at the border of western russian and eastern europe in the early 1900s,

fleeing anti-semitism, and hoping to make a better life for their children in america. they settled in the midwest, eventually making their way to chicago. there, my father, who ran the smallest of small businesses from a room in our basement, took me with him as he made the rounds to his customers, always impressing upon me the importance of hard work and fair dealing. there, my mother headed the local pta and school board and directed a volunteer services agency, all the while instilling in my sisters and me the understanding that service to the community is a responsibility above all others. even now, my sisters honor that example by serving the children of their communities. i know that my mother is watching this on television and crying her eyes out.

so are my sisters, who have supported me in every step i have ever taken. i only wish that my father were here to see this today. i also wish that we hadn't taught my older daughter to be so adventurous that she would be hiking in the mountains, out of cell service range, when the president called. [laughter] it was the sense of responsibility to serve a community, instilled by my parents, that led me to leave my law firm to become a line prosecutor in 1989. there, one of my first assignments was to assist in the prosecution of a violent gang that had come down to the district from new york, took over a public housing project and terrorized the residents. the hardest job we faced was persuading mothers and grandmothers that if they testified, we would be able to keep them safe and convict the gang members.

we succeeded only by convincing witnesses and victims that they could trust that the rule of law would prevail. years later, when i went to oklahoma city to investigate the bombing of the federal building, i saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances, and instead takes matters into his own hands. once again, i saw the importance of assuring victims and families that the justice system could work. we promised that we would find the perpetrators, that we would bring them to justice, and that we would do it in a way that honored the constitution. the people of oklahoma city gave us their trust, and we did everything we could to live up to it. trust that justice will be done in our courts without prejudice

or partisanship is what, in a large part, distinguishes this country from others. people must be confident that a judge's decisions are determined by the law, and only the law. for a judge to be worthy of such trust, he or she must be faithful to the constitution and to the statutes passed by the congress. he or she must put aside his personal views or preferences, and follow the law, not make it. fidelity to the constitution and the law has been the cornerstone of my professional life, and it's the hallmark of the kind of judge i have tried to be for the past 18 years. if the senate sees fit to confirm me to the position for which i have been nominated today, i promise to continue on that course. mr. president, it's a great privilege to be nominated by a

fellow chicagoan. i am grateful beyond words for the honor you have bestowed upon me. thank you. [applause] >> joining us now to discuss a modern history of the supreme court confirmation process, david hawkings, senior editor of local and the author of the hawkins your blog. the controversy of the supreme court nominees is nothing new but a lot of republicans are going to the nomination of robert bork back in 1987 as a

turn for the nomination came after the resignation of justice lewis powell who was considered a moderate on the court. what was that period like and why are people still talking about that nomination today? >> one of the things that makes it unusual is that it was at a time of divided government. and only recently divided government. the first section of ronald reagan was a president he was working with a republican senate. in the midterm election of 1986, the democrats regained control of the senate. in 1986 there were two supreme court confirmations, justice william rehnquist was elevated to chief justice, naturally 33 senators voted against that but it was contentious but not a knockdown draw down fight. when rehnquist was elevated from an associate justice to chief justice that was the occasion when antonin scalia was nominated to fill the associate justice bot that rehnquist was moving up.

scalia as many people who recently recalled his career at his death was confirmed 98 to nothing. this all happened at a time when republicans were running the senate, so it was no surprise that reagan's to nominees got through. and make sure lewis powell retired, the democrats have taken the senate back and they were ready for a fight. and they had known that robert bork was coming. robert bork had been on the short list for republican president supreme court nominations really since the 1970s. robert bork had been an assistant attorney general for richard nixon. given a solicitor general for richard nixon. he had been a part of the so-called saturday night massacre during watergate when several senior people to them resigned and he was acting as attorney general. as soon as reagan became president in 1981, one of his first judicial appointments was robert bork. so the democrats knew this was coming and they were prepared and they wasted no time at all.

some people complained in the current situation that senator mcconnell waited less than a couple of hours after antonin scalia died before taking -- staking his claim. and facts and edward kennedy went to the floor of the senate something like 45 minutes after robert bork was announced as the nominee and essentially said we the democrats are going to go after this guy hammer and tong. he's out of the mainstream. so the stage for this was doubtful a set. >> let's take a look at backup about the 1987, show you a republican senators chuck grassley and mitch mcconnell had to say about the senate handling of the bork nomination. the speeches are from 1987. you can also find i them in ther entirety in our video library at c-span.org. >> i'd like to be the first or at least first to add my welcome before i start to you and your family as you appear before this committee again.

that i know you are eager to use your appearance as a way to address the many questions raised about your nomination and, of course, i am eager to hear your views as well. it is often said that i think correctly so that one of the senate's most important functions is that of reviewing the president's nominations to the supreme court. sadly, i believe this important function has been the need to get your nomination has been turned into a real life-and-death battle among the direct mail giants of american lobby. the intense lobbying has transformed this nomination into the legislative equivalent of a porkbarrel water project. all strong-armed politics, no substance. the partisans will act as the generals in this war of

mudslinging have had some success. in fact, some members of the senate have outflanked each other for the honor of taking the most extreme position, even before the first day of the hearings. i think such positions are as intemperate as they are premature. it puts the judgment ahead of the inquiry, precisely the kind of closemindedness that some accused this nominee of having. these remarks are remindful of the famous passage from alice in wonderland where the queen of hearts said to alice, sentence first, verdict afterwards. now, i am just one of 100 senators, but i am here to say at the outset of these hearings that i found a bunch of the of the past two months deplorable. i'll bet this intellectual into

debate over a supreme court nominee would of course come at a very big surprise to lease one of our constitution's founders, alexander hamilton. hamilton was, of course, the first to articulate the vital power of judicial review him and he did that in federalist 78. at the same time, however, he recognized that the judicial branch was to be the weakest of the three departments. and in his words, the judiciary was supposed to have neither force nor will, only judgment. the framers, such as hamilton, expected that choices among competing social values, we be made by the people's elected representatives, not by the unelected judiciary. perhaps this furor during the summer of 1987 only confirms how far the judiciary has drifted from its original purpose of

1787. it is no exaggeration to say, especially in this year of the bicentennial of our constitution, that the existence of constitutional government in america hinges on the capacity and the willingness of the supreme court to interpret the constitution consistent with its true intent. accordingly, it is our awesome responsibility to ensure, and as best we can, that a president's nominee to the supreme court possesses this capacity and willingness. beyond the mirror resume of this nominee, outstanding as it may be, he is not qualified to serve as a justice, in my view, unless he is willing to exercise self-restraint. self restraint which enables him

to accept the constitution as his rule of decisions. self restraint which makes them resist the temptation to revise or unmanned of that document, according to his personal views of what he thinks is good public policy. former chief justice stone identified this duty of the court when he remarked in u.s. versus butler in 1936, and i quote, that while the unconstitutional exercise of power by the executive and legislative branches of government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. now, judges have no license to do with the constitution as if it were their personal plaything. rather than the precious heritage of all americans. as justice frankfurter wrote in his majority opinion in allman

versus u.s., and i quote, nothing you can be put into the constitution except through the mandatory process. nothing gold can be taken out without that same process. unfortunately, a new generation of judges seems to have forgotten that they are appointed, not anointed. these judges, including some who served on the supreme court, have demonstrated and in patients with the democratic processes upon which our nation was founded and on which it has forged. instead, they would abuse the power of judicial review to impose their own view of wise public policy. they would prefer to act as scientists who use some kind of judicial alchemy to transform the words of the constitution

into meanings contrary to its plain reading or intent. i am opposed to this kind of judicial irrigation of legislative and executive functions. i believe that judges must give full effect to values that may be fairly discovered in the text language and history of the constitution. and, of course, apply them to modern conditions. but unelected and unaccountable judges should not fully overturned a legitimate policy choices of the equal elected branches solely because of personal preference. that's why the founding fathers such as alexander hamilton refer to the judiciary as the least dangerous branch. and that's what judicial restraint is all about. a nominee he for us today has

weighed in many times against the kind of judicial activism that tends to create rights not granted in the constitution or the statutes. frankly, his abuse on his view that judges ought to confine themselves to interpreting the law rather than advocating their own ideas of wise public policy is very appealing to me. i am anxious to hear more of these views to see if they follow in the tradition of restraint practiced by frank parker, holmes, brandeis, stewart, powell, and a few others. along the way, i expect that opponents of this nominee will likely focus on specific views or decisions that they disagree with. i urge my colleagues to keep their eyes on what i believe to be the real issue in this confirmation debate and the real issue is the extent to which

judges should respect the decision-making of the elected representative branches of government. make -- make no mistake about it. they know the law they prefer is the judge made and, therefore, susceptible to change by other judges. their loud protests underscore that the law they prefer isn't found in the constitution or the statutes. if their views were filed in the democratically elected law, they would have no fear of any new judge pledged to live by the credo of judicial restraint. instead, these critics prefer judges who will act as some kind of super legislature, who will give them victories in the courts when they lose in the legislature your judge bork, i look forward to learning more about you from your own word in

the next few days. having identified my standard of review for this nomination, i'd like to turn to a much debated point. and that is the senate's proper advise and consent role for this nomination. traditionally, the sinistral has been a very limited one. distended has not made a nominee's political philosophy that test for confirmation. for example, its universe acknowledge that judicial nominees should not be asked to commit themselves on particular points of law in order to satisfy the senator's politics. i get edited and finished usual advise and consent standard with some passages from the nomination hearing of justice o'connor. as are now chairmen senator biden said, and i quote, we are not begin to determine whether or not the nominee agrees with

all of us are each and every pressing social or legal issue of the day. indeed, if that were the task, no one could be passed by this committee, much less the full senate. or as senator kennedy stated at the same time, and i quote, it is offensive to suggest that a potential justice of the supreme court most passed some presumed test of judicial philosophy. it is even more offensive to suggest that a potential justice must pass the litmus test of any single issue interest group, unquote. >> syndicate metzenbaum who at the same time said, and i quote, i come to this hearing with no preconceived notions. if i happen to disagree with you on any specific issues, it will in no way affect my judgment of your abilities to serve on the court, unquote.

i might add that i very much agree with every one of my colleagues in these statements on the sinistral. each of these views carefully recognizes that the power to give advice is that the power to decide the issue. from george washington to ronald reagan, the president has enjoyed a range of discretion in nominating supreme court judges. and since 1894, the then asked defer to the presenc president'e in all but four cases. the senate should refuse its consent only when the president's discretion has been abused. giving the senate the last word without such a deference would mean the senate has the only word. this constitutional power the framers did not give to us. of course, in the absence of constitutional power, raw political power can fill the vacuum. i will stipulate right now the

ability of a handful of my colleagues to block this nomination, but i believe it will be the wrong way to approach to series senate duties. the dangers of politicizing the nomination process are exceeded only by its shortsightedness. because, after all, presidential elections and supreme court nominations come and go. i urge my colleagues to resist the claritin call of raw politics that undermines the independent judiciary contemplated by article iii of the constitution. now in closing, if my colleagues cannot resist the use of all the political power i would at least hope that they have the courage to shed the fig leaf behind which they hide their real agenda. thank you, mr. chairman. >> thank you, mr. chairman.

i've been a member of this committee for the entire seven years i've been in the united states senate. iin the time i've been through four nominations to the supreme court. i've been in public office 28 years of my lifetime, and never have i seen such an unjustified and untraveled assault on a distinguished american citizen as i witnessed these last few weeks. words are very inadequate to express my shame at the distortions that i have heard in this room. three weeks ago i decried the fact that some had transformed high-minded constitutional debate into the worst pressure group politics i've ever seen. i spoke not been in hopes that beyond personal attacks on judge bork what and when he finally had an opportunity to speak. today, i am frank to note that i underestimated the power of mob justice in america, circa 1987.

three weeks ago i set out what i believed was to be a nonpolitical and principled standard for the confirmation of nominees to the supreme court. first and foremost acknowledge and respect for the constitution as a pressure -- precious inheritance for all americans, and as a sole rule of the decision in constitutional cases. next, full appreciation of the separate functions between the unelected judiciary and the political branches of government. and lastly, self-restraint, self-restraint which checks the well-intentioned urge to short-circuit government by the people, the kind of restraint that jefferson spoke of when he warned of the unbridled third branch. and i want to quote jefferson your our peculiar security is in

the possession of a written constitution. that does not make it a blank paper by construction, closed quote, jefferson. or the kind of restraint that hamilton spoke of when he said in federalist 78, that the judiciary was and i quote hambleton, beyond comparison the weakest of three departments, having neither force nor will, but merely judgment, unquote. because he makes this principled standard for confirmation, robert bork has earned my vote. he is a person of unquestioned integrity. his credentials are, as one of our witnesses put it, solid gold. is legal scholarship, together with his spotless record on the bench, make him, and chief justice burger's views, not

mine, as qualified as any candidate who has served the supreme court in the last 50 years. in short, he is precisely the kind of person that we need on the supreme court. and, of course, perhaps that's why some sitting justices have taken the unprecedented step of recommending him. these qualifications should end the debate. that is given to send its historical deference of advise and consent. after all, since 1894, this body has only rejected for nominees to the supreme court but all the previous presidents. but that was before a new confirmation standard was minted just in time for this proceedi proceeding. now the senate last word is it's only word. this rank politicizing of the

supreme court nomination process can only bring this body into further disrepute, and will harm the supreme court as well. what kind of evil picture has been painted of this man after nearly three months? well, some americans believe that he is for poll taxes and literacy tests as a way to prevent minorities from voting. some actually believe he would sterilize his fellow man is suited, if it suited the balance sheet of some big business firm. others believe that he would single-handedly roll back the clock so that blacks in america would be banished to the back of the bus, and women to the kitchen for ever. these even said, installing cameras in the bedroom. after all, how else would we all know if people are using contraceptives illegally? now, these charges are

breathtaking, and our unsurpassed in their ugliness. .. what is so frightening to me is the people that helped spread of the hysterithe hysteria actuallt they are lies. this ought to scare the daylights out of every american, because as any wrongly accused person will tell you, it is a very tiresome and tedious process to disprove reckless allegations. i ask my fellow americans to consider how much tougher it is when every special interest group with a washington fax number and a copying machine repeats those lies week after

week after week some of my colleagues may believe that this nomination process has been useful. i disagree. the judge spent more than 30 hours before this committee. during that time, he was called on to answer questions that no judge should ever have to answer and no judge before him has ever answered. i believe it sets a dangerous standard and precedent to make nominees commit themselves to specific legal issues whether it is clear and present danger or a generalized race to privacy or go on and on. for what reason, just to satisfy some senators politics. judges are not politicians nor should they be transformed into politicians. the framers of the constitution gave the judges life tenure in

part so that they would be insulated from having to give campaign promises. it is inconceivable the framers could have intended that the ideological interrogation that we've seen over the past three weeks. but now there i go again giving weight to the framers intended. i should know by now that the senate of 1987 deserves a right to amend the constitution on the fly. the fear over this nomination arises out of the judge's long-held view that elected legislators and those accounted to the people and not judges must make the law. as he put it three weeks ago, the judge must be every bit as governed by law as is the

congress, the state governors and legislatures and the american people. no one including a judge can be above the law. to say that judges must follow the law rather than their personal bias isn't to say that the liberty as a result. quite to the contrary. when deciding constitutional cases in the areas the judge testified that the judges responsibility is to discover the framers values defined by the world they live and apply them to the world we know. i don't suggest this formula always yields an easy result or even the result that i will always agree with. but it is a perfectly

respectable way to grapple with tough issues that come before the court. the result is not a constitution that is worthless or somehow happens to be a worthless wordsmith but it is a charter filled with vitality for today. consider the expansion of the first amendment protection to covering electronic media for the fourth amendment electronic surveillance when the social changes mandated by the principle in the current edition or the statute, then the court has a legitimate war and to waro bring about and expand liberty as the judge explained in brown v. board of education brought about an enormous social change and he said properly so that make no mistake he stands with

the tradition when he states that when the constitution is absolutely silent, the democratically elected representatives on how to be heard. fundamentally, in robert bork's america that people are in charge. i am confident that we the people will secure our liberties while as is often said that democracy may be the worst system of governing, but it's better than any other device by the mind of man. i am honored to serve the people of the great state of iowa and that's why as well i'm proud to support robert bork for a seat on the supreme court of the united states.

>> i had originally planned to speak at some length on this as others have. i've been sitting here listening with considerable interest to the comments of the senators and others and it's been a great history lesson for those of us charged with the responsibility of advising and consenting to the nominations. as we all know in the 200 year anniversary of the constitution for the anniversary of the constitution we looked back at the document and honor the framers and think about the debate that they had and then looking at the particular portion i might say that this particular has been around for why we've been in the senate for two and a half