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public service by america's cable television companies and is brought to you today by your cable or satellite provider. >> host: georgetown university law professor paul ohm, is law keeping up with technology? >> guest: it's trying its darnedest, but like with a lot of us, it's really hard to keep up with technology. and is so, you know, we have different areas of the law, constitutional law, statutory law, but at the end of the day, the shifts, the changes, the different ways we communicate, you know, the same things that befuddle just your average american has begun to also confuse lawyers and the legal system and judges in kind of disruptive and profound ways. >> host: is it because technology is changing so quickly, or is it because law is

not changing -- >> guest: well, it's interesting, it's a little of both. i mean, law is an ancient tradition, right? it's an ancient set of disciplines. but at the same time, law has also managed to keep up with kind of seismic or tectonic shifts in all sorts of things in society. and technology is, you know, the latest challenge. and so, so there's always going to be kind of a give and take when it comes to rapidly changing things in an old institution like the law. but again, it's trying. and i think it'll all work out in the end. but the growing pains are going to be really difficult. >> host: what's an example today that we're facing? >> guest: so the fourth amendment, right? so we think about the -- again, at this point, centuries-old guarantee in the u.s. constitution that unreasonable searches and seizures shall not occur without a warrant, let's say. and so the question is, how does something like that apply to cell phones, how does it apply to e-mail accounts.

and, again, it's a great measure of how fast things change that the law is just figuring out those two examples, cell phones and e-mail. and it may be figuring that out just about the time those two are not going to be as important in our daily lives, right? so there's just this built-in delay that the law suffers from, and it's hard to keep up with the latest shifts. >> host: and this week on "the communicators," we're talking with georgetown university law center professor paul ohm, he is also the faculty director for that university's center on previous and technology. privacy and technology. also joining our conversation is dustin volz of reuters who cover toes cyber and surveillance. >> thank you for being here, professor. how is this issue of knowledge of technology affecting government prosecutors, government lawyers who have to deal with cyber or criminals, who often have to use cyber means to pursue those criminals? is in this warting criminal investigations -- in this thwarg

criminal investigations? >> guest: after i graduated from law school, i became a criminal prosecutor at the justice department, so i was in a unit called the computer crime and intellectual property section, and it's funny because now i'm such an old man that this was really a half generation ago where we were just beginning to deal with hackers and viruses and all sorts of emerging challenges online. and at the time and probably more so today, it was really a challenge to kind of figure out how to take these very old tools we had and adapt them to something as new as kind of exciter hacking. computer hacking. and so it is a constant struggle of reeducation and trying to keep up. >> so is part of the problem here that lawyers who go to law school and then go into government, they aren't science and mathematical in nature? those types of folks maybe would go to engineering school or medical school, so they're

coming at this from a disadvantage, and do we with need to focus on retraining them more? is that the collusion? >> guest: so both halfs of what you said are definitely true. we could definitely stand to have more techies in law schools and eventually in law and then in policy, you know, propagating throughout the system. really, really the dream is the person who is genuinely and legitimately well trained in both disciplines. but it's just a simple matter of numbers. we're not going to get this. so one thing i've been thinking a lot about, this is my post-prosecutor days, what can i as a legal educator do to bring along people who start with very little, and in the case of law school, nothing, to make them at least do no harm, but even better, to be competent, successful navigating this intersection. >> and so at georgetown, i believe you have a class that sort of helps these law students, teaching them coding basics, talking about these issues.

>> guest: yeah. >> you tell us more about that, and is this something we should make mandatory at law school, forcing these students to learn criminal cyber law? >> guest: it would certainly be good for my long-term employment prospects if we could make it required. [laughter] we actually have several courses, but met me focus on one. i arrived at georgetown a year ago. i was at university of colorado for ten years before that. and at georgetown i have this kind of crazy idea that i could take my programming knowledge and use it to kind of educate lawyers. , and again, with a heavy emphasis on the people who know very little, and it turns out in law school there are a lot of people who are in law school because they've made life choices that have pushed them away from technology. so there's a lot of people. so the course we created is called computer programming for lawyers, and it's an intensive, three hours a week really, really deep dive into the nuts and bolts of computer

programming but seen through a legal lens. and it's just been a kind of painful but also fantastic experience both thinking about what does it mean to teach a lawyer technical skills like this, and at the same time just understanding and appreciating the pent-up demand. so let me just tell you a quick statistical story. so we offered this course for the first time in mid november of last year, and you have to understand in law school mid november students are thinking of nothing else but their final exams, and with very little fanfare, we said you have to register by the start of the spring semester. by december 18th, i think it was, we had 120 students clamoring to get into the class. and there's a class that we had set aside 17 seat for. 17 seats for. so it was just beyond kind of my wildest expectations. >> right. >> guest: yeah. >> so in your assessment given

the focus on training and education, i mean, is that enough to fill gap? is this problem getting worse because technology is becoming ever so more pervasive, or are you confident that the next couple of decades we might actually see some progress on this? >> guest: right. i can make some predictions about where legal education will go and where lawyers will go. it's harder to make predictions about where technology will go. so if we assume that we're going to continue on this kind of radical growth rate where fundamental technologies seem to shift every five or six years, then i think we can keep up, right? i think that not only is it going to be kind of useful and important to educate lawyers before they become lawyers, but i also think we're going to have some advantages generationally. and so i have 11-year-old twins, they know about as much programming as my law students do at the end of my course. is and i think they're not an unusual story. i think a lot of kids like that

will grow up to be law students and then lawyers with a real advantage. >> host: well, professor ohm to, is it important from the aspect that that lawyers need to know programming just as maybe a liability lawyer needs to know how a car built? >> guest: there's some of that. there absolutely is. probably,ing that's a great analysis -- analogy, right? >> host: you can use it. [laughter] >> guest: i will. another example that i think about a lot is economics and statistics. and so, you know, a generation ago again there weren't many lawyers who understood statistics, much less used it in their daily lives. today if you're a tort, liability lawyer, if you're an agency lawyer, you really have to know how to not only understand economic analysis,

>> guest: so, for example, government hacking is very much in the news. it's something i've thought about in my research. and so now you have government investigators and crime fighters for the first time kind of using tools of the trade that we used to associate with criminals. and they do this, you know, in large part because encryption makes it difficult to use

conventional methods to do surveillance. so here's the challenge. the challenge is you have an fbi agent, let's say, who is chomping at bit to use some very new and exotic vulnerability and exploit to, essentially, break into someone's phone, right? i have no doubt that the fbi -- and these are not lawyers, these are, you know, engineers by training -- the fbi is teaching that person what they need to know to do their job. what about the prosecutor who is the one who has to go to the judge and explain what they're trying to do? so we have recent examples where, you know, documents have come to light that suggest that the prosecutor on that particular case probably didn't go through the kind of training that i was talking about a few minutes ago. and either willfully or most likely entirely incidentally misrepresented what the technology did, confused the judge about what the technology did. and at the end of the day, that really is going to kind of have

repercussions for civil rights and civil liberties. >> host: and privacy? >> guest: and privacy, absolutely. it's a little esoteric, but one question is if you send out something like this which is essentially indistinguishable from a virus, and you send it to anonymous person online, the odds are high that that person is not going to be in your jurisdiction. right? so the thing you send out i from virginia may go to california, it may go to alaska, it may go to eastern europe. and there have been documented cases where the judge has signed the warrant knowing full well that they don't have the authority to sign a warrant to search eastern europe because they weren't clear about the fact that this thing was about to slip the boundaries of their jurisdiction. and so, yes, there's a kind of rules violation there we should worry about, but there's also an underlying privacy story that we should worry about. maybe that's too much power for a particular prosecutor or judge, but without understanding the technology, that's not even

surfaced until much later. >> there's this knowledge gap or confusion among law enforcement officials, prosecutors, judges. are we seeing evidence this is having real policy applications on how we are applying this law, or are decisions being made by the fbi? i think of the san bern -- san bernardino case, a lot of technical-minded people say that this effort by the fbi is borne out of a lack of understanding about how encryption works. these lawyers that were prosecuting that case just did not understand it. that something you're worried about? are we seeing that happen in. >> guest: so i want to be clear, and this will allow me to be somewhat controversial with apple and the fbi in particular. what i've been describing so far in this conversation has been the main, the masses of prosecutors and how difficult it is to teach them the technology they need. there are elite pockets within the federal government where this isn't a problem at all, right?

where they hire technical people, they give them the resources they need, and they train them up to be quite sophisticated. and, sure, i'm biased, but i think the unit i was at at the justice department probably fits within that category. okay, so what does that have to do with apple/fbi? to me, at least -- and i think reasonable minds can differ -- probably reflected the failure of many different things, but i'm not sure it was a lack of technical sophistication. so if you look at what the fbi asked apple to do, it actually was a pretty sophisticated ask. if you look at the way they responded to okays from the encryption -- to objections from the encryption community, sure, they disagreed with that community, but i don't think it's accurate to say they fundamentally misunderstood what the clipping toker ins -- cryptographers were telling them. i chalk it up to it's a hard problem and one on which

reasonable minds absolutely can differ. >> host: professor, was the law clear in that case? >> guest: right. i mean, one of the big problems in that case was the law was old. so you have a very old, very broad law that the justice department -- again, quite aggressively -- was trying to use in a very new set of circumstances. and so that's the reason why i think a judge quite reasonably could have said you're asking for too much. but what i'm trying to push back on is the critique that the fbi just doesn't understand, that they had no idea -- and i think we all regret that we didn't get to see this play out in the courts. it would have been fascinating to see what the judge did. but i think at the end of the day the judge had the technical con alation it needed -- consultation it needed, and it really was left with a difficult legal question at the end of the day. >> host: have any of these cases played out all the way to the supreme court?

>> guest: sure. there have been numerous cases where the court has kind of had to really into technical -- delve into technical specificity, and i'm not even talking about patent law where they have to do it routinely. but we confine ourselves to surveillance and privacy and speech, i can think back in my own lifetime as a lawyer to 2001 in a landmark case called aclu v. reno which is about attempts to restrict what children could get on new thing called the worldwide web, relatively new. and in that opinion i remember as a young lawyer, i thought it was so funny that the supreme court, in binding precedent, said, well, these web sites -- and everything was in quotes, of course -- they have these things called hyperlinks, and hyperlinks tend to be blue, period. [laughter] and i remember thinking that is a great example of knowing enough, you know, to hurt you, right? to be dangerous. because i guess it was probably

technically accurate but completely superfluous. so then if we fast forward to 2014, you have a case called reilly v. california which asks the question when the police arrest you on the side of the road, are they then howed to open up your phone -- allowed to open up your phone the same way they can rifle through your pockets. and here you have chief justice roberts writing a very sophisticated, very technically savvy opinion that i think gets most of the technology exactly right. so look at how far that institution, and talk about slow-moving institutions, has come in 13 years. so, yes, even the supreme court, i think, has it within them to keep up with the times, it just might take 14 years. >> host: what about the congress? >> guest: congress is, you know, hit or miss. some, some members of congress are really sophisticated, some less so. one thing that i have really noticed is -- and this is so

common place as to be, you know, obvious, a lot of it depends on is a member of congress committed to hiring the right staff, right in a zero sum world of staff, are they willing to allocate a perp or half a person to someone who really understands the technology. and, you know, i'm sure i haven't met all of the hill staffers who are serious technologists, but i bet i've met most of them, and there aren't enough. there should be more. i don't think our elected representatives need to be techies, but they really should hire them. it's not a bad idea. >> how much of this enduring problem, finding enough talent in the justice department or in congress, you know, enough technologists, is that from this salary gap problem that people can go and work in silicon valley and make hundreds of thousands of dollars instead of, you know, giving a few years to government service? is that one of the fundamental problems when you talk about these issues? >> guest: i think that is. i think almost anyone in any

workplace has faced this dilemma. all you want is a web site, and for some reason, you're going to have to pay that person same salary as you pay the management. and it is, in the government those challenges probably even more so given the restrictions they have on budget and salary. i think the ain't dote to that -- ain't dote a little bit to that is to appeal to the idealism of a lot of techies. we've been talking about how non-tech keys can learn tech, the reverse is also interesting. you know, i've had more deep conversations about law with computer scientists than i have had deep conversations about computer science with lawyers. a lot of computer scientists just love the law and love policy and probably think they're better at it than they really are. but i wonder if that is something we can use to appeal to people to do their duty and spend two years in d.c. and help the government out. >> on that note, president obama

has been call by some the first cyber president. he set up the digital service, he's done other things to try to reach out to silicon valley to forge those partnerships. we now have a president-elect donald trump who's coming in who's had a little bit more adversarial approach to silicon valley. he called for boycotts of apple, said other things about closing off the internet. do you see this as more of a tension with the incoming administration trying to get this talent to come and serve in washington? >> guest: from my vantage point, and i certainly, you know, have not talked to a lot of people in the new administration. from my vantage point, it's mostly disinterest. i don't know if it's outright hostility, you know? if someone has that secret list of priorities for the new administration, my guess is technology is not going to be on the first few pages. and is so what does that mean? that means that there will be, probably, some inattention paid not only to this core question we've been talking about which is kind of is, will the

administration be sophisticated in technology, but even the more fundamental question, you know, what will their telecommunications policy be, what will their surveillance policy be. i think we simply don't know because they don't know. and so it's a waiting game really. like, you can predict some things the administration will do. i don't think you can on technology. but the other thing to say is, you're right, we are, i think, at a pinnacle with the obama administration on the narrow question of kind of a deep integration with technology and technologists. so no matter who would have been president, i think we would have had a dropoff. i'm just wondering if it's going to be a serious cliff at this point. >> host: do you have any advice for president-elect trump and his administration to make sure that dropoff isn't as steep as it could be? >> guest: ing i think institutions matter a lot, so i think continuing to keep some of the positions even if you populate it with people more like-minded to your politics is a great idea.

obama has not only a cio, but a cto, a chief technology officer, ostp, the office of science and technology policy in the white house is more robust and vibrant, i think -- particularly on digital issues -- than ever. it would be great if the new administration said i'm going to keep those structure ors in place, and i'm going to find people who can populate them. and the same goes for the agencies. a lot of agencies are at their kind of peak right now in terms of sophistication. it'd be great if we could keep some of those structures too. >> host: well, professor ohm, this disconnect between technology and law has affected the federal trade communications and the federal communications -- federal trade commission and federal communications commission. >> guest: yes. they you said they have to get -- they understand they have to get good at this. and i have some experience with both agencies. i think they really have made strides. probably not as quickly as i would like, but they both have

made strides in recent years. both of them now have established chief technologists. and going back years and years, those two offices have been populated by -- i think without exception -- just amazing people, sophisticated people. and so as long as they continue on that path, they'll be fine, they'll be kind of good at keeping a steady state. the problem, of course, with agencies is always resources. in a perfect world, we would double or triple the budgets we give for these purposes. and i don't think that's likely to happen with either of those two agencies, particularly within the new administration. >> host: have we had a period like in our history before where technology or industry of some type got way ahead of law? >> guest: ing sure. i mean, so the rise of antitrust haw was a direct result of the robber-barons and the railroads,

and antitrust law got reinvented again with the deregulation of the airlines. the history of law in many senses is the history of trying to respond to the last great technological shift. one thing i talk to my students a lot about though the internet and digital technology, you know, it's faster. i think everyone would agree with that. but the question is, is it a difference in degree merely, or is it really a difference in kind. right? are we seeing some sharp elbow in the curve that means that won't just be like the last times we've had to encounter this in and it might be something more fundamental and fast. and the jury's out. i mean, most days i wake up and think there really is something distinctive and different about what's going on, but other days i wake up and have a little more of a historical view. and i think, you know, other people have had that thought before, and this too shall pass. [laughter] >> you mentioned surveillance policy earlier. i'm curious, is this problem made worse by the fact that we're seeing surveillance in

some ways expand, and the opportunities to collect data expand? this week on december 1st rule 41 is going to go into effect which is going to allow the government to ask judgements to issue warrants for remote searches of computers in any jurisdiction, not just their own jurisdiction, seen by some privacy advocates as an enormous expansion of surveillance powers. does this all, given the fact that there's this confusion and knowledge gap among some government lawyers and prosecutors, does that make it more likely that we might see abuses, that we might see innocent people victimized by the way the government carries this out? >> guest: right. and for the most part, we've been talking about surveillance on the criminal side. the knowledge gap we've been talking about at the core of our conversation is so much worse on the national security side. so here you have a presumption of secrecy and a presumption of classification, and you have kind of rigid structures in the intention community that give -- in the intelligence community that give a lot of deference to

kind of people on the ground. and there are probably lots of good reasons to have everything i just described. but what it means is very few people can have an outsized impact on what to do with the latest technological advance. and so, yes, i worry a lot about that. i mean, i think it's very easy for a few people, well-intentioned people, to say, you know, to advance the latest goal from the government we are going to really take advantage of the latest innovation, and we're going to really men the law a -- bend the law along the way to allow us to do that. and given the inherent lack of sunlight in these spaces, you know, it might take the rest of it ten years to figure out what's going on. this is kind of the story of the telephone metadata leaks. this is kind of the story of a lot of the things we've learned about the nsa over the last ten years. and so in many ways, you know, i shudder a little bit to think about how surveillance law might

expand partly because the techies rule the roost, and the lawyers really don't know thousand to ask them the right questions. >> i guess what you're saying is it's not necessarily malicious intent, there's just a lack of understanding about how pervasive or intrusive it might be. >> guest: that's right. and we have had numerous filings from the lawyers who have gone to the secret fisa court and have said, you know, that thing we told you in that brief last year, turns out we were wrong, we just misunderstood what our technologists were telling us. here you have an example of a real failure to communicate that has ended up, resulted in surveillance programs that are much more massive than they probably should have been under the law. >> host: what can congress do policy wise, in your view, to make this more smooth? >> guest: right. i mean, where should we begin, right? you know, there's the electronic communications privacy act which relates to a lot of what we've

been talking about. here you have a law created in 1986 which still is the foundational law that governs when the fbi can read your e-mail. that thing is in dire need of updating. and there have been bills in several consecutive congresses that would make some sensible picks and changes. congress itself could get better on science itself. congress could, you know, create new offices to hire scientists to give them advice the way they do with the congressional research service at this time. that'd be a wonderful kind of benefit for them. the communications act probably needs updating, the copyright probably needs updating. so it's just pick a direction and fire. there's probably something that could be fixed. >> host: paul ohm of georgetown university and the center on privacy and technology, and dustin volz of reuters. this is "the communicators" on c-span.

>> c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies and is brought to you today by your cable or satellite provider. >> abigail fillmore was the first first lady to work outside the home, teaching in a private school. mamie eisenhower's hair style and love of pink created fashion sensations. mamie pink was marketed as a color, and stores sold clip hon hon -- clip-on bangs. ..