you would leave some sort of policy that appears to be a cross purposes. other major regions, major contested areas in the world don't necessarily make policies in the western and eastern borders.

we have to think about the relations of the goals in iraq's relations with iran. we should understand how policy is on one side rfi did not just by the u.s. but also policies in afghanistan or vice versa. having some more coherence on these two orders without. the last point i will just add if anything is always the push for conflict resolution. conflict resolution is something that either is quite difficult or certain party still want to participate in within the bilateral relationship. we can't help creating facts on the ground that can harden borders. when i think about porter heartening common it is a means

of material assistance and guidance in india and heartening borders for defensive capabilities. one of the flashpoints for this flashpoints for these crazies is coming out of crust order attacked and vulnerable points within the indian security establishment where it shouldn't be happening. there's a lot of obvious failures and a lack of learning in terms of the intelligence available, security perimeter, to run throughout these things that the united states both physical as well as organizational. also in the game of trying to harden borders with respect to afghanistan. we can play a role in supporting the hardware side of things at technology infrastructure, but helping the outcomes understand what this can do for both sides managing the flow of people across the borders and the risks

that come along with that. this isn't going to resolve conflicts but it can create facts on the ground to manage it. >> thank you. toby? >> i'll make five quick points. the first is in the category of advising what not to do rather than what to do which i realize wasn't the task but it's important to think it through. in this category there is a temptation to see issues as binary without understanding the history and linkages between these things. that's the temptation to follow it can lead to real trouble. probably related to that, avoiding making statements for which there is no intention or capability to follow through on its also important. if you say you're going to

negotiate coming you better have something behind that other than 140 characters or however many it was. third in this category, taking a short-term view original problems at deep sociopolitical roots is also not advisable. those are three things that i think would be well advised for the incoming administration to not do. what you should do, following some of the points made, it's really important that there be some sense of reorganization. i look at this largely in terms of issues to carry significant risk for the u.s. let me highlight two of them. first as we've seen over the last six, the potential for a crisis in south asia to escalate is not something that exists just on a prayer. it is now something we can see in the dynamic politics, the demand in india for retribution.

this is something that is growing a thing. second is the potential for there to be another terrorist financing in the united states that traceable to south asia. that could be a serious disruptor of policy. find him a great job these two risks is important. a problem here is the u.s. role has often created dependencies in particular with pakistan to urge on moral hazard. peppering similar challenges as they think about our crisis role. it would be that the next administration to think about what a next crisis could look like and what some of the questions they might confront what he. for instance, if there is a crisis where there is more of a military activity family sought after the attack and let's imagine we had imagery showing

pakistan that the nuclear weapons. what would we do with that information? would we caution pakistan about doing something? would we provide coordinates to india? one possible way to think about the u.s. role is that we could help clarify the signaling that each is intending to do. a third point in the context of the discussion and debate about intelligence here in washington is the importance of intelligence sharing relationships could not be bound by politics and our relationships. this is super important in terms of the clearest possible assessment of risk and threat for the issues described, both as a catalyst of potential crisis, but also given the threat of terrorism potentially coming to the u.s. we need to maintain those relationships regardless of whatever else is happening in

the bilateral relationships. for it than this follows from samaras points on china, which i largely agree with although we want to get into a little bit more. it is important to embrace more wholeheartedly changes that could reduce u.s. risk exposure. the economic corridor is an interesting case. it's quite possible the present could be stabilizing or whether there is any reason we got to see china's engagement is other than your son, recognizing significant concern. lastly, a pet issue for me specifically on nuclear things, there's a temptation and has been a temptation and effort in this administration to negotiate some nuclear deal with pakistan. you have to take real care in understanding the nuance of that issue, the dangers of that

issue, relationship to the india-pakistan security competition. if we go down that road, we need to have both eyes open because of how important that is in the region. the >> thanks so much. >> and i think take hot and trying to make recommendations for the whole analysis. i talked about al qaeda, afghanistan and back to review it and realized i had ignored india-pakistan attaches quickly wrote something about it. there's a huge gap in my papers so i hope my colleagues will help me fill that out in the conversation here today. i use that to illustrate the fact that india-pakistan has often been an afterthought in american policy making and the afterthought comes when there is a crisis. when it's actually happening and we realize not only do we have

to respond to this, but we don't have a plan in place to prevent these sorts of escalations from happening. we automatically go into crisis mode rather than any long-term prevention planning, even though we may have engaged in contingency planning amongst diplomats. that's the starting point we have to think about when we make recommendations as there's actually no foundation for long-term planning resolving conflict with india and pakistan. there is her response effort underway and assign it to be slightly ironic and challenging because one of our main interest in south asia is to prevent nuclear escalation between india and pakistan. the foundational entries don't match up with how we design the policy and how we set up our infrastructure to manage it. i actually see it more actually see it more as a policy

management issue than a conflict resolution approach. that is the most we can ask back the administration to do. given that, i just want to highlight a couple of new dangers to consider and focus on a couple policy recommendations. direct direct military conflict is real. it should always be railed and the relationship they have. recent events have suggested we have to be more realistic about this for two reasons. virtually unchecked militancy in pakistan doesn't mean the pakistanis haven't done anything with these militant groups to control them, defending pakistan has been interested in the future, that there is a dynamic return the pakistani state and the anti-india relatives that doesn't devastate a lot of flexibility. there are too many trade-offs

and taking actions that limit the state's behavior. we have to worry about that when conflicts do arise with india. second, the notion of perspective there would be less restraint should something happen, should there be a cross-border attack. i would've told all of you during my time in government that there is no escalation possible. this is not going to happen. so many attacks have happened many attacks that have been linked to militants in pakistan and indian government has not responded with military force. i'm not sure i can say that now. the increased risk of the unknown. second on the geopolitics side of things, the speakers have already mentioned the india u.s. relationship is expanding. pakistan is strengthening ties to china. russians are interested in that as well. i worry some of these new diplomatic options actually reduce the alert of rock for

schwab or they made of it and should something happen, india and pakistan might take it further because they have these big others behind the scene that they can go to in use as leverage. that is sent and also we have to pay attention to in the next administration should think about. afghanistan is always going to be an issue as long as the u.s. is better as long as is helping the u.s. i wonder about events when they are dialed up or dial it down how much of that is related to the admin presence in afghanistan with concerns about that. the uss flip talked a little bit on messaging. when i was in government, we often with day to the indians privately of course, you have to pay attention to your presence there. it is causing a lot of concern in pakistan. more recent statements have suggested otherwise that the u.s. is in favor of india set to

descend there has to be a middle ground there and that is going to be a tough thing for the administration to focus on, but that would be one area we should focus on. in terms of recommendations, this is more of a policy management rather than conflict resolution. one specific recommendation in his iraq the u.s. government to consolidate the bureaucracy as much as possible. sometimes it a verse one country over another and i don't think it's doing our policymakers -- it's a little unfair because essentially you're supposed to represent and focus on the bilateral relationship that you're not looking at things and original date. that's the one thing that has to happen. the second thing whenever a new administration comes in regardless of political party, there is not to solve india-pakistan relations.

let's avoid the greenpeace narrative. it's never worked and it's not realistic. another broad policy recommendation is to focus on paulaprivate diplomacy is strengthening mechanisms. we know public statements don't work well in this region. when the united states makes a statement for whatever reason in india pak 10 and have to be cautious about what we say if it's on twitter or elsewhere. the public narrative can hurt us in many ways. thinking critically about what kind of private narrative we want with both countries and who delivered that message. as for the role of diplomacy is important, the state department using ambassadors in the region, connecting the u.s. foreign service officers in dali and

islamabad in making sure they have conversations on these issues is really important and have a modest goals. do they look at kind of india, afghanistan, pakistan concerns a little bit? we know india is not going to leave afghanistan. that's another area we can have some modest improvements in the issues. finally i was sad as opposing point we have it mentioned and there's a lot of space for collaboration between india and pakistan the merits has been. there can be joint projects under development and economic engagement. these are really important because when conflict does happen, sometimes the countries need to show they are stopping something or halting something

so they can assess the situation. you need to have these other levers to push and pull and having a development in broad economic engagement can allow for that to give both sides some breathing room and the support is there an airbus political and it would those long-term goodwill, whereas the security development side isn't as easily done. >> great, thanks so much. >> thank you. i followed them quite closely and i've been in india the last couple of months. i made three big points. the first one is the political dynamic in india is quite dramatically different. that is not simply the election of 2014, but what we are heading into over the next two and half years. early next year you have india's largest day.

it is seen as a semi final and tony made team, which effectively means that now india is back in election mode, and general election mode, which makes a big difference. the second point is i think both the so-called surgical strikes but india seems quite clear his indian policy now is going to be much more predictable than it was in the past. i don't think it necessarily suggest that every time there's a terrorist attack will necessarily retaliate, but this shows that they would not retaliate but the diplomatic tools over military tools basically has gone out the window but the response. so that i have action coupled

with a the political popularity of that act really does increase the of india are responding militarily to terrorist attack not only in christian air, dissenting in the mainland. all of us over here follows the issue quite close to it, but realistically this is not one of the top-five policy concerns concerns of any incoming administration. i would argue increasingly india and pakistan relationship will be viewed through the prism of what is happening in a show more broadly and of course you have what is happening in the south china sea. you have the obviously fraught relationship and the chinese and

i think increasingly what this is going to do is in some ways pushed india and pakistan even lowered in terms of priorities than where it has been earlier. when we do these together, you have a sort of india which is becoming much more hawkish. not just politically but also in terms of popular opinion. i'll give you one example. a few weeks ago i wrote a column in "the wall street journal" where i argued that india should not pursue any kind of cultural boycott against pakistani and things like that because it just sounds productive and not a very good idea. i was struck by the amount of blowback i got on social media and elsewhere. a few years ago this would not have happened. a few years ago this would've been a a fairly mainstream position that you can take a

tough position against terrorist groups or even the pakistani government for not doing enough such as lashkar-e-taiba, but that seems like movies are out of balance. the mood has changed quite sharply in some ways i would say going back all the way to mumbai. in some ways this is something that reflect the very new aggressive hyper nationalistic news channel environment in india and also these three things coming together. i think that india is going to be increasingly hawkish and the political payoff for that are quite clear, particularly now given the prime minister has done something quite unprecedented but the domestic policy front i basically making 86% of the cash supply.

so he is going to be looking for ways to recover ground and i would imagine that this is a big that is certainly much more heightened than i would've said six months or a year ago. in terms of what it means for u.s. to you, at some point there's a reckoning on this idea that the u.s. policy towards india put on one hand draw india more and more towards a more at google in east asia, particularly southeast asia, closer india defense ties with japan and so on, while ignoring indian concerns choice was happening in pakistan. that can no longer be squared because of what's happening in domestic politics. if there is another major

terrorist attack and pressure builds on the indian government to retaliate, the u.s. going back to what has been quite successful in the past, which was to urge restraint upon india in order to stabilize the situation i believe would be a greater impediment to the u.s. in india developing the relationship than in the past. >> thank you two other panelists. so let me very quickly prompted a few questions and perhaps he can have a discussion. let me begin with you because you made this point which i think is crucial. its conflict management, not the solution. the question i would have for you but if others want to chime in as if it realistically

possible for the u.s. to secure its interests in south asia without some resolution if not total and complete, even partial relationships? for instance, pakistan's policy in afghanistan is a direct product in a lot of ways. how does india have this pakistan issue to come up? pakistan, et cetera. are we not all that lucky not -- i'm not saying it's resolvable, but is it realistic to expect the interest while the problem remains? >> it's sort of what we've been doing this whole time. i think we are in this mode where we deal with it when it becomes a problem because there are bigger issues we are working on. on the pakistan u.s. side,

afghanistan is the number one issue. that is kind of in a reactionary mode. we will deal with that when it comes. i don't see that changing unless we are going to go to the early troops in afghanistan in the next year. i don't anticipate that. until afghanistan situation changes, i think the u.s. is constantly going to have to balance how it approaches peace between the two countries. i remember having a conversation or 2008 and at that time we were getting a lot of money to pakistan virtually unchecked and been at the state department and the very senior official said kashmir is not even a national security interest. i don't see a national security threat unless there's escalation

and as long as we can manage india, then i think we'll be okay. i think the comment is very interesting and that is what perhaps needs to be focused on the unknown on the indian side that they are not going to respond to u.s. attempts to restrain them anyway. we don't know what they're going to do. i'd be curious if you could elaborate on that a little bit of what possibly could have been in the event that they choose not to respond to u.s. pressure. >> you saw this interesting debate break out after the attack on september 18th, were in the beginning it looked as though india was going to follow the old playbook and there is a lot of people who wrote articles and modi will do what india has always done. a handful of people are doing now, he will not because of the constituencies that elected him and it could be irrational, but

the disproportionate role that social media seems to play in the policymaking process in india. so you saw the surgical strike. i thought it was quite restrained and carefully sort of planned by india to maximize the domestic applause on minimizing the international fallout. in terms of what was outward facing with the fact that india had only gone after the so-called launchpad, not after the military had it not used air power. it immediately declared it to be over a finite way. all about the suggesting restraint. but they calculated quite cleverly in my view as they recognize the domestic media has no restraint at all. they were cooking up the bizarre stories and all of that was great for the government. it was all untrue but they managed to get the most out of it on both sides.

i would not be surprised if there is particularly some kind of pressure if there's cause for another attack to do something similar. and then the question is what does the u.s. do? what does the u.s. do after the surgical strikes was it effectively possibly agreed with the indian position in the sense that it didn't immediately made on india and said that essentially acquiesced. the question is does it acquiesce again or does it go back to india again must stand down because the interest of stability in the region are at stake. my point is if that happens, there will be -- i don't think it will work first of all and

secondly i think there will be sharp pushback from the administration. >> you've done a lot of work on this. i think what happens so the question is india does something next time. let's assume pakistan responds. and then what? are they going to watch the next nuclear war or is very moment where they've actually wanted the u.s. to say back off. is this completely new now? >> there's a couple issues to pick up on here. one goes back to the moral hazard point i was suggesting that the outside, which is that some of the u.s. respond coming

as it does to encourage restraint is exactly what pakistan has sought the u.s. to do. maybe there's some calculation of provocation that would bring the usn. but now you have this unpredictability on the u.s. side about the extent to which the next administration is concerned about this to the civic center previous administrations have. so that's a problem. i think it is also a problem for indian policymakers to think through what effect they want to have in pakistan. is it largely going to be another tactical effect to score domestic legal point or are they trying to coerce the changed behavior in pakistan and some important way? if that is actually what they are trying to do with the means with which they would do that would have to be significantly different from surgical strikes and more. what is interesting also

anything to the extent before that you see more of an effort by india to isolate pakistan regionally. you have started back negotiating structure now in question. what the effect of the isolation should there be another crisis, as assertive levers with which you could influence but not break the relationship, did this go away such that there could be a great? all of that as a pretext to say if india does want to change behavior in pakistan and the approach they used to do that is more coercive, more military force, that places a lot of pressure on pakistan and its own domestic narratives and difficulty for the political class for the military to take on groups is really hard.

there's going to be some response as well. the domestic sources of escalation on both sides. it's really difficult for anybody sitting here to think about how you can influence that in ways that would either by time as they tried to do in the past for stop escalation. >> if i may ask, there is a conversation about isolated pockets and not only in delhi, but also in washington. how does one square discourage him whatever it is with this crisis management goblin? if you have no relationship with one country, how do you influence the crisis whichever way you want. it loses that ability. i would not be the no-space open for china even if they are not

ready yet to capture more bad then perhaps they unite polar shed. >> okay. let me take up a couple of threads through a quick. the first is just on restraint and escalation. so this may be an unpopular view, but i don't think india broke out of the mold. i think at the end of the day they decided the cost escalation outweighs coercive benefit is that they chose a method without much coercive effect and i don't think they are really testing the threshold that much in their actual actions. they are little more pushing not. the restraint for the most part held and the operation was effectively an interdiction operation. i just don't think we pushed

that balance yet appeared on the crisis management, does the united states foreclose on the crisis? potentially. that is constantly a concern. but i don't think our concerns are just about crisis management . if anything, pakistan will be more interested in us. that is not a concern as much as the united states like other things such as what's going on in and in terms of intelligence cooperation for homeland security and something europeans think a lot about goes unnoticed. if european governments are excited to pakistan or afghanistan and they don't have intelligence on where they can track these guys are where they are going, whether it's good or not, one of the core sources that this is going to be

pakistan. so i don't think we necessarily need new levers seven minute, but i don't see china filling that void anytime soon. they don't seem to be ready for it. i don't think the chinese are even closer to us in that process. certainly not for the standards. >> can we trust? >> amid pushback on one point. i agree if you measure india's response. in military terms it does not break strategic restraint. anything particularly when when it comes to india and pakistan relations, they're such a large element in an eight to 98 nuclear tests. the rational thing for pakistan to have done was to store was to store does not test and take a

big package. the fact been given this backdrop and the fact that in both countries the theatrical element is so important in this particular relationship means that india going out same boat, we did this has much greater significance than the purely military aspects. >> i would argue both of you agreed on this, where where the shift is not a special was done. so if i may push, and are we part of the problem? the intellectual space, social media and the reason i bring this up is we assume domestic pressure so huge on both sides said they won't be able to hold back, but they were before the great september attack which was

in some ways nodded out where and so much more of labor. if it is correct, pakistan basically did nothing, just a night. i wonder whether there is more space. one of the well-known pakistan scholars has made this argument in the past that salvation states manipulate this public sentiment and use it as they want. we have more space than we are giving credit? >> quite possibly. i am not saying that something has changed in the sense that now in the retaliation has become a certainty. remove from uncertainty to a new certainty, but the amount of the insurgency has been raised. >> i think india does have more space to do some lower-level forms of retaliation mainly because of the stronger relationship with the united states.

this is a byproduct of the relationship the way it exists right now. we keep talking about changing pakistan's behavior, but in answer doing this to change america's behavior. this is what we are going to do now and the americans aren't saying anything and pakistan observed it. the u.s. will they come in and intervene if it is at the 11th hour and most of the cases in the past, that is what u.s. intervention looks like. it doesn't come in after some retaliation so i do think that there is morris base for india to do this. we don't know what they will do and if it will rise to that level. if the u.s. gets closer to india, this could happen more frequently. there is an inclination within the american bureaucracy to be accepting of that approach. it puts checks and balances on

militancy in pakistan without the u.s. i need to any public statement. >> i just want to follow up briefly in this picks up on your point about twitter and nationalist media. the theater can be helpful to the extent these linkages that allow people to interpret on both sides, but to the extent those are being shut down and it's much harder to do that interpretation, you essentially end up with very captive narratives that not much ability to read signals between them. that is another new unpredictable elements. >> of the good news is both sides back on the cultural side moat. i promise you that much. if i may ask you this question, we were talking about the dangers. we always talk about the arms

raised and pakistan et cetera. they manage this relationship in a responsibility manner. at the same time, i would argue neither side is doing anything that's purely rational. pakistan says what, it can be a shift work on a conventional arms control arrangement. if it's not as huge we will have a nuclear side. it's doing other things, china, other things it doesn't make sense. pakistan looks and says it may be destabilizing and dangerous but i will defend myself. where does the u.s. come? on one hand we are in a fairly strong arms relationship. on the other hand we provide support through packet and and

what you see at the end of the day is the biggest worry at all of seem to be suggesting is nuclear. so is there a policy in terms of how we are approaching this when it comes to the military competition? >> i would say that these decisions and i'll take one because there's a lot of other opinions. but what i think might be happening is they may not internalizing the full set of risks. the externalities they might be producing or they may have a longtime to calculate some of these things good for one thing there's a lot of nonstate that there is roaming around in pakistan, some which they tackled, said they have entered can't% mixture between. does put a lot of risk across their borders that they may not

be able to manipulate and control. it has taken the ability to control escalation out of their hands. that is something that was factored in ip to an alteration of the costs and benefits going after some of these groups. similarly, with india, they are exposing themselves to certain risk by not taking actions particularly in kashmir. you have a lot of vulnerabilities in a lot of fishers easily exploitable by external act is, some of which may be back by states, but tom within the region. sorted in a recent years seems to have denied that it has a problem that's changed in different ways and they assert are preferred to the same talking points us all about their act or is driving the process and there seems to be a much more organic unrest that's both exploitable and also vulnerable to violence.

one nice point i'm not internalizing wrist desert light arms competition that protect themselves internally or externally, but how much is enough whether its capabilities and in this case again, the worry that gets expressed within some parts of the united states and the analytical community is if you start to push yourself in one direction to fully build up on every conventional platform and every nuclear capability to plug every hole in the latter, do start to run out of resources that underpin your security and military strength. >> one clarification. my biggest concern from u.s. policy is this the india-pakistan problem may derail or has potential to derail larger u.s. interests in the region which are being

driven. >> you mention this, but every mention that's one way or another. pakistani behavior in the question of changing pakistani behavior that the u.s. focus, after others have, what changes pakistani behavior? they increase nic note evidence that they do any of that. whatever behavior change the u.s. want. ultimately what is going to change? one argument is that india-pakistan relationship but that may not be doable. is there anything they can do it this way to change pakistani behavior whichever way it wants? >> in short, no. we've seen that over the past decade and prior to that. pakistani behavior changes when it realizes it has interested

once to pursue. we did see a change in the orientation towards certain militant groups in the northwestern areas. we did see that. that's observable. they suffered the backlash of that. they continue to explain to the public that will continue on this path on their own timeline. one example is strikes me as the own sense of security is threatened domestically, they start to look at these groups differently. when they only look at them through the national security paradigm, it's not going to work. if they feel threatened and circled them, they are not going to change their behavior. if there's an increased sense of threat to this day, that opens it up for possibility. it becomes tricky because it's

not just these groups could target pakistani citizens. they are a very useful tool in their relationship with india, so that's where it becomes more complicated. on the assistance issue, this is something we have to tackle. if we don't do it now, we'll have to do it in eight years or four years. the u.s. relationship with pakistan is a crutch for packets then. the pakistani mindset as the americans will come in at the 11th hour because they have so much invested in that. that relationship will continue to be a crutch. the orientation towards india and pakistan knows if we go to fight the americans will get worried and save the day.

>> toby. going back to your boat, the premise of which is how do you activate and yet manage the terrorism problem from pakistan? what about the other scenario, which may not be the most similar problem, that is a terrorist attack happens because what has happened in the past, india's center must be pakistan. we need to do something about it. there are elements like a safe and i wonder what happened to a crisis were not one of these groups we now that manage an attack. in this situation about india-pakistan crises is that india and pakistan do not talk

on terrorism. think about it as faces. that's the best thing i could do? you pakistan and india close and if it's a nuclear one, great. how do you manage this situation as indian pakistan in the u.s. if you're not even talking to each other about the possibility, which is not made up. >> it is a real concert and a very valid question. i don't know if we have good to facilitate that intelligence discussion. the trend now seems to avoid those discussions into prerequisites to have any discussion. at the same time, there is no real mystery. people on both sides know what needs to happen in afghanistan. the problem is largely that those views are really difficult to sustain politically because they are not nationalists.

so why does the enemy and it is on either side to take up this question of further actors that are not under the control of the packets in the state that could catalyze crisis. but i would imagine that there are people that are national security adviser in indiana who probably would like to do something and maybe there are channels for you could approach this in a way that is so politicized, is a little bit more on the margins out of the limelight. could the u.s. facilitate something like that? have an agenda about what we are doing. there is a threat we perceive as a threat to both of your states as well. can we formulate an agenda that addresses that are at? it's possible.

our intelligence relationship at this point bound by certain agendas are certain structures that make that hard, probably, but shouldn't be impossible. >> to put this in perspective, it's interesting where happiness conversation. but if we had been doing this a little bit less than a year ago, modi had shown up in so there is a different conversation three months from now. i think that one of the things that has made this conversation particularly hard is the progress of anything after the mumbai attack. that has really been a breaker at not just at a policy level that a public level. if pakistan was serious about

getting at least a more moderate interlocutors to recognize there is some sort of strategic shift underway in pakistan, there are ways to do this. one would be to show progress on dubai. eight years now. not like it happened yesterday. to show some willingness to clamp down. they gain public prayers, the person responsible for 166 of them died including six americans. you can see why the indian position becomes extremely cynical because of these things. if they were in fact can't create progress on these things where you can say though, we have done this as there was

concrete progress going after the ttp, if there was an equivalent or even if it's not exact to the same thing, but something concrete you can undeniably show than a dispassionate person would look at this and see progress against groups and individuals, then you begin to open a little bit of the window. >> tell us you mentioned this issue about india u.s. started coming in the way. when i ask you about attention on the one hand makes perfect sense in the u.s. partnership, the larger space and not influence did not in a negative way at the spirit on the other hand, the more solidified, and

by the china pakistan relationship becomes more and more natural. and if you've got to look at a piece of economically integrated south asia, the one ideal scenario could be connecting to the east-west which goes through india-pakistan if they are investing in each other's countries. how do you square that? in some ways there's no real interest if you had asked me in pushing pakistan and china further into each other's arms to challenge the indian right. >> i think this is accurate that pakistan and china are in a pretty tight embrace and i don't think india is effectively making not. so the pakistan china relationship has an independent history. the all weather friendship,

pakistan and china has recently stepped up support for pakistan, for example in the u.n. on the other issue. i don't think that india -- india is worried about this in terms of china being pushed closer to russia. that's a very nice debate. not just pakistan russia, but china russia because of u.s. v. nobody in india thinks that getting closer to the u.s., pakistan and china are already so close that i don't think this is seen. >> turned to the audience and take questions. if i may ask all of you and one mind, no more, suggests where you think the u.s. policy in india, pakistan relationship will be in two years time perhaps after the administration takes over.

>> i think it will look the same as it looks today. no change. >> there's another way to put it, muddling through the same way. >> i think it will be worse. we are in the process of moving. i love each of the situation. >> i agree we will have less leverage. let me open it up. if you can raise your hands, identify yourself and ask a brief questions so we can get through as many as we can. if it's okay we will collect a couple of them come back. >> i am a masters student at gw. my question is with the establishing of surgical strikes, is there a possibility that this could lead to using

this as basically domestic pressure valves, kind of like people accuse clinton of the monica lewinsky strikes in yugoslavia. could this lead to a further precedent for this for other politicians? >> let's take a couple and then come back. i see a hand right there. >> i want to know what will u.s. can play in terms of conflict resolution because there is the clearest answer the indian side that the dispute is a bilateral issue and india will not allow any third party. i also want to know what is the domestic india-pakistan or the international issues which are at his and we can see that the issue is not as active as we can

see the other issues. >> you want to take the first one? >> you're absolutely right. this is a precedent and it's been politically very successful precedent. i don't know what you meant by other leaders. during future prime ministers? [inaudible] >> i don't know about that. maybe someone else can answer the pakistan side of it. on the indian side, it is to play some aid that the domestic political calculus is part of this. this is going to be height and over the next and a half years as you head into the 2019th election. >> one quick thing on the idea that there's a pressure release valve. we have made a big deal out of the strike for various pr

purposes, but they are as issue the replies to publish an account that says x number of people were killed but there is cross-border artillery fire are sometimes raised as well. this is not particularly new. the other part is we talk about pressure when in fact it is actively stoked by governments on both sides. it's not simply a bottom-up pressure. there is definitely moves being made both by media sales within government on both sides. they come into obvious leak stories that were different then the army chief warrant just coming out of the same area. there's some sort of act of cultivation. one method for managing pressure is to maybe just not cultivated as much. >> if i could just add i'm not,

your question was looking ahead could you imagine these events as a way to divert that it is such a disaster you need another surgical strike to recover from it. we are probably not quite there yet. but it was a big pr victory in india and one of the reasons -- one of the ways that seems to be explained as it had to be a false flag because it allowed for this. the problem is it de-legitimizes this kind of attacks taking place in an era. that is really challenging and his sort of speaks to the need to be able to translate across the border. >> a second one. >> i like the way that you phrased the question, which is what is restraining the u.s. from doing something? it's an interesting perspective. it is just not the top priority of the u.s. and the national

security interest in south asia, i wouldn't even say is the top three. in the conversations i've been in, once you have those discussions should we go in and how msn now, there's way too many costs to reach bilateral relationship. it exists in its own backyard in the bureaucracy of the native structure to look at it in a unified way. there's no one position or on envoy. think about that as a new policy prescription for the next administration. i also think there's something else happening but she don't talk about that much. it's becoming harder to defend the pakistani position on militancy and you can't ignore that and the use of proxies in the past decade we've seen this

issue become much more violent in afghanistan if it affects american interest directly. when you translate that, you will find there's not a lot of u.s. support for the pakistani position in something for pakistan is to think about. >> one, two and three, please. if you can make this short. >> i have two comments another question. >> honestly because of time, let's make it as quick as possible. >> the panel sitting here talking about u.s.-india and the u.s. and then deciding what policy should pakistan or india have i think they would decide in the second thing is we've

talked about what we would do in case another attack happens, what would the u.s. do? with all these separate that dramatically isolate and pakistan. my question to the panel is what do you think pakistan would do if that was cornered? >> just to make clear, i don't think we are deciding on are deciding on india-pakistan a policy that are debating it. i don't think that's a problem. >> hi, i am currently not associated with anybody, but for nine years of living in kashmir and 20 years in india and my question is i'm really very happy you brought the modi context in this debate because they think there is a lack of

understanding of their radicalization and that is happening in that area as a result modi's prime minister share. my questions are such in the last couple days there's been a new army chief appointed and india. ..

may actually itself get more involved in working with nonstate actors and destabilizing areas within pakistan, because there's a lot of debate about this. one more question speeders can we move on? we are literally 10 minutes away. >> i was a field officer with the michigan gop and you talked about, shoot, now i can't remember. you talked about how our issue is just a management instead of solutions, and that's what we should aim for. however i don't see our next administration playing the role of a moderator. and in that case where the pressure would be honest to take a certain side, do you think heightened interest in the

issues of india-pakistan would evoke a sort of heightened interest from russia in order to kind of turn that area into a powder keg? so you think this would evoke a sort of pressure, not necessarily a a pressure but a reaction from russia to sort of turn, force is to take a side? >> sure. that want ones to take the whath pakistan -- >> i will respond to both, the industry question and and this one. i would not recommend that we pursue an approach that isolates pakistan. it's not possible. it hasn't happened in the past decade, given the difficult issues i've been working on. it's not realistic to pursue that. the modi strategy of building anti-pakistan sentiment amongst the saarc countries is not possible.

the rest of the china factors i think are the biggest ones in making that, it's possible. i didn't hear that from anyone up here. i don't think any of us would advocate for that. there's great harm in that. it would be great harm in eliminating all u.s. assistance to pakistan. no one would ever advocate that if you want the region to be stable and want a stable bilateral relationship. russia is already engaged in the region. they always have been. they have a long history. i do think the china pakistan engagement that we see in this kind of close, close embrace will bring the russians in more. they have expressed some interest and economic routes that china is pursuing an pakistan, build off on that to pursue their own economic interest. so i think a lot of that is more organic and independent of whatever the user chooses to do. >> i maybe pick up on the covert one and handed over?

i think you've seen an interest in india now for several years to develop more covert and special operations capabilities they could use against targets in pakistan, whether they be terrorist targets or state targets, or further selling some sort of discord in violence elsewhere. that was one of the options that we addressed in our book analysis of things that india could do. and i think what we see there is about the risks for india are probably lower than employing the army or the air force anymore so direct force way. but it also raises a lot of questions about how you would connect that to a strategy to change pakistani behavior. in part because if it's covert you can't claim credit for it, right? you can't do that in domestic discourse which seems to be increasingly important for this government. you can't do that because many

of those things may be seen as illegitimate, and what actually undermines the diplomatic isolation strategy that india seems to have a place at the moment. so i think you can see that temptation and i predict we will see more of that but my question would be, is there a case in india where people think they'll actually ultimately lead to some change or is it merely punitive and a part of this unstable equilibrium across nuclear conventional sub conventional kinds of capabilities? >> thanks. on the isolation pakistan question, i agree it's both greatly unrealistic and undesirable. yet you can't turn pakistan into and north korea. that is ridiculous. but i do think that there could be some benefit and pakistanis themselves asking questions about why other neighboring countries, including bangladesh,

and afghanistan in particular because it started out being so vocal about pakistan being part of the solution. the fact that the policies they are pursued have independently in min my view, i don't think ts is modi ginning up. this is something the modi administration is welcomed. but i would argue bangladesh and afghanistan have independently come to the conclusion that pakistan has not been very helpful actor and sometimes it has, in fact, been a harmful actor. so if there is an intro conversation in pakistan the looks upon that, and sort of asks the question sort of takes it away from the india-pakistan relationship which tends to be neuralgia, perhaps that would lead to policies that would be helpful. in terms of the army chief, i don't really read too much into that. i think the indian army chiefs are, you know, completely under political control. that general has specialization

pick this is more like they chose this guy, they like this general. it was a bit of a controversy he superseded to other generals and so had to say he's got great experience and this is what it is. i don't think, i don't read too much into the choice of a particular general engines of signaling policy. i look other things that are significantly technic signaling policy and terms of like modi speeches. >> just want to jump in on the balochistan question. i see it is probably something, tit for tat for future bargaining. probably on a much lower scale but i think a sort of talked about. i think it is counter pressure something going on in afghanistan, maybe in kashmir. there's good point people have made. if you look at the literature back to 2009 about what medications are, what india might be doing there. one is the skill is sold also even if there is some activity

it's not really having that dramatic effect the way let's say what's going on in afghanistan is. states can be involved in providing material support to nonstate actors instantly different ways, such of wide front of skills, passports to money to arms to train to direction. and where on that spectrum will then have an effect on the outcome of the conflict. if you look at the assessment of this in 2011, the point was basically if the indians were trying to do this seriously, you should see a much larger scale of activity and balochistan. clearly the indians devastated that capability for this in the past, and so they wanted something much bigger they could but given the scale of what's going on there, it might be some sort of low-level support as a bargaining chip but probably not economic scale going on in afghanistan. >> we will take the last round. that you can see her and then come back to the panel for final words.

>> a lot of the ideas you talked about, their significant public loss on both sides come right? but that manifested itself with the modi coming into power in 2014 which is not a confrontational government, then at least a nationalist government. in pakistan however, your go, a mainstream center government came into power, even though support for the religious military is endemic in pakistan. how do you explain this political manifestation of nationalism on one side and not the other? >> and the final question. >> i'm from pakistan pakistan, d candidate. my apologies in advance but i am, impression i got from this discussion is india and all have taken -- at its pakistan that doing terrorism, radicalism.

so none of you talked about the colonel. colonel. none of you talked about -- what was he doing in the balochistan. and you talked pakistan should change its behavior but my understanding is, is that it's the big brother that needs to change its behavior. and in south asia it's in the combat pakistan. and political spectrum even the indian politicians are asking for evidence, if whatever surgical strikes, where are the evidence is my question. >> celeste were to the panel, the question and if there's anything else. >> i'll let you take the question on the nationalism dispute if you want. i just think pakistan's national student policy as it's been constructed at least for the past decade it just hasn't worked. it doesn't work for the country itself. it's much more dangerous,

there's lots more violence, attacks against the state internally. i'm not talking about with india. those kind of nonstate actors that are involved in that process are involved in afghanistan and in india. so that's the common link and that's what i'm focusing on right now. during my time as a policy maker in the u.s. government, that's what we were kind of honing in on and that's, the india-pakistan relationship had tons of problems, many of which will just be bilateral and the u.s. doesn't have a role until it's needed, but it do think if you want to focus on pakistan itself you have to question do these policies work? is it in our interest to continue whatever engagement we have with nonstate actors is a role in our interest in the context of the region? and increasingly where the countries like a united states, the uk, other countries in europe are looking at this with a deep concern especially with isis and other transnational jihadist elements finding private support networks in pakistan.

whether the state is involved or not, right? so this is a much bigger issue than just india not being responsible or pakistan being the bad guy. >> so two things on the modi election. one for my understanding and he can probably get more details on this the main reason space on exit surveys and surveys that came after that was he was elected by road on the economy and management, stewardship is a prime reason for that. even if he wasn't elected on national credentials i think pakistan has a history of working with nationalist counterparts and making progress in terms of the peace process, right? that dialogue with the government for many years, his government was a government of the sort the nuclear test and had a driving national agenda behind that and still the opportunity for making deals. sometimes people think the hardliners are the one who are most likely capable of making

such deals. if you look at the literature on the israeli-palestinian peace process, the people that could come to make deals are hardliners. so i think it doesn't come just because modi is a nationalist, even if we accept the premise, doesn't foreclose on a prospect of making actual progress and composite dialogue. >> on the last question about us focusing on groups and behavior in pakistan and why that's a a problem, i think this goes back to something she suggested earlier which is a vendor to the pakistan has portrayed here in the last several years doesn't carry much water at this point. i'm not saying that's right or wrong. i think it's an analytically important point though, to the extent that reflects policies in pakistan that here are not seen as carrying the country forward in a positive direction and makes it harder for years to engage pakistan in a productive way, that's really unfortunate. >> i'll just echo what sameer

said. it's really true in terms of policies modi was elected to be india's mr. development. the model of development, for investment, but economic management, all of those. there's a big question mark on a lot of that right to but that's what he sold himself as. primarily, but it's also true that he satisfied and indian craving for so-called strong leader. and one element of being a strong leader is the idea that modi would not be pushed around. i attended several of his campaign rallies in the run-up to the election, and even though the focus was mostly on jobs and inflation, there was never a speech where he didn't mention the weakness of the government when it came to being slapped her about pakistan and so on. so there were both elements in it. there were -- serving the economic aspect was dominant.

essentially he's a strong leader, what a sort of styles himself as the engine version of putin or texan or sort of these, or to one, take your pick. that's why does become so important for them because anything that erodes the sense of the big strong leader which is why i argue it would respond to, and he did, becomes very politically significant for him spin thank you. i was trying to find in the panel on time but sorry can we served mr. side to those we couldn't get you. let me wrap up very quickly saying my standard line after these events would stitch every single one of them, there isn't a black and white here, it's really so collocated and complex that drawing simplistic conclusion would be dangerous. i leave you decide what the sum total of the conversation today is, but i also often accuse of being a pessimist so let me try my hand at being optimistic this

time and challenge of the panel and all of you and we will in with this, which is yes, yes, it is very difficult to work on the indian pakistan problem. resolution is difficult. but it would point out as i challenge myself to think about this. it's an odd rivalry which is intractable in a lot of ways, but if you think of the major outstanding problems, each one of them has a solution that's known. you can look at kashmir. you can think about where you would end up. it will be somewhere around that four point formula they agree to. you can think back in 1999 onwards. the solution is pretty much, even terrorism i would would argue is intrinsically linked to this larger space. it's a chicken and egg problem, which one is handled first. but i would challenge all of us to think through whether it is really as impossible as we think because at the end of the day nobody can disagree that an india-pakistan normalization solves everybody's problem. so not saying we will get there

but i think there is space to think about it more broadly for all of us then perhaps we have in the past. so with that, please join me in thanking the panelists, and thank you for joining us. [applause] [inaudible conversations] >> this holiday weekend on c-span here are some of our

featured programs.

>> military force is one of the things i think the american public very often gets impatient about, because they really believe they have this trump card, this great military that can defeat anyone. but it's not true. it is an extraordinary military, very powerful but it can only win in certain situations and it can only really destroy things. they can't build a new order in its place. >> sunday night on q1 day, the

challenges facing his career on terrorism. >> what we don't want to do is respond in such a way that will produce more of these militants, more of these militant organizations. they want us to overreact. they want us to occupy muslim countries so they can build their recruitment. they want us to torture people. they want us to do things that's going to allow them to make the case against us. >> sunday night at the eastern on c-span q1 day. >> at a conference on government surveillance, analyst at the cato institute looked at a u.s. intelligence gathering is viewed in other countries and effective international law. this is just under two hours.

>> i would just go ahead and get started in the interest of encouraging them, ever want to congregate again. thanks to those of you who stuck with us to a long and fascinating day at the 2016 cato institute surveillance conference. our last pair of flash talks is going to focus on some of the global aspects of your surveillance. of course we are big fans of the constitution. we focus on the fourth amendment and domestic law and how it regulates surveillance to american citizens and the rights, but the scope of american surveillance both from law enforcement and intelligence purposes is now really global in scale. and so as a result this has implications for the human rights of people around the world but also for our political and diplomatic and economic relationships with other countries, and particularly economic interest of u.s.

company set up to do business around the globe. so to talk to aspects of that with alan butler, senior counsel will talk about the schrems case and the way some your surveillance is grating problems in europe and professor jennifer daskal will talk about trying to articulate some principles for cross-border data exchange as it becomes ever thornier, figuring out who's jurisdiction applies to the data enforcement needed. we will begin with alan. >> thanks for having me. happy to be here today to speak with you about a new international dimension to this debate over your surveillance authorities. in talking to many of you probably know about the schrems decision of the court of the justice of european union last year. this decision really appended the primary mechanism that was used i businesses to transfer

personal data between u.s. and the european union. it also led a major renegotiation of privacy grimaced between the two governments and this opened up new avenues to challenge the surveillance activity. historically, u.s. surveillance reform movement here has focused on statutory and constitutional limitations as julian mention that apply domestically if you think about the debate over fisa and that patriot act. they're sort of been international groups who have been engaged and vocal on these issues but these issues have it necessary to play the financial issues have necessarily played a major role and executive branch or congressional policymaking on surveillance. that all changed after 2013 in the snowden revelation. when the u.s. came under increasing scrutiny in other countries especially in the eu for the surveillance activities, in the eu in particular there is a strong history of privacy protections, independent enforcement authority by

regulators in each of the member countries. and traditionally these data protection authorities have focused a lot of their attention on the action of private companies. but the prism program provide for the european court a clear link between actions of companies that collect and transfer personal data and the surveillance activities of the u.s. government. it didn't help that section 702 under which prism was authorized specifically ignores the privacy interests of citizens and use. prior to the schrems case it was not clear what leverage the eu would have two innocents push back on the u.s. for this broader surveillance that was being revealed. then an individual max schrems filed a complaint with the protection authority alleging that facebook had transferred

its data to the u.s. and thus exposed him to these surveillance activities. now faced because a major business operations and i am in for tax reason so the protection authority had the authority to bring claims against facebook for violating the eu privacy directive under the eu charter. it applied to any company that processes personal data in europe and also limits the ability of companies to transfer that data to other countries, in particular when those countries did not provide adequate protection for that data, or essentially equivalent detection for that data relative to what provided in the eu. so that transfer of personal data between the eu and the u.s. specifically has historically been authorized under an agreement that the two governments entered into in 2000

called the safe harbor agreement. basically they committed a safe harbor, set of principles that countries could sign on to and agree to and, therefore, transfer data freely between the two countries without fear of violating the directive. this is called into question in the schrems case because mr. schrems allege the data protection authority that despite the safe harbor agreement, facebook was violating the directive and violating his rights under the charter by transferring his data and exposing them to u.s. surveillance. the data protection authority and ireland chose, initially, found it could not bring action against facebook because facebook was provided by safe harbor. ultimately through suits brought by schrems, a question was certified up to the highest court in the eu, the court of of justice. the question was whether the safe harbor agreement itself was valid or whether that violated

both the fundamental rights in the eu and the eu privacy directive. ultimately, the court of justice did find that the safe harbor agreement was invalid. they held that in october 2015 and is a a sort of the bombshell that dropped on the u.s., eu privacy world last year. and central to this case was the surveillance alleged in mr. schrems complaint and the silk between u.s. companies and u.s. surveillance activities ultimately what the court of of justice found was that the safe harbor agreement was nothing more sensitive than agreement between the u.s. and the eu that didn't itself provide for the adequate protection that required under the directive. this has been, it's hard to understand how much of a fundamental shift this has caused in the relations between the u.s. and eu as julian alluded to before. this has really created an entirely new dimension to the

debate over surveillance activities in that now there are all of these companies that engage in these transfers of data every day. lots of money at stake. and by knocking out saf safe ha, the court of justice really put a lot of uncertainty and a lot of risks for company transferring data that are concerned now that there will be major enforcement actions brought against them them, suits brought against them for violating the directive. and the deal that's been negotiated in the time since the schrems decision came down which is called privacy shield is not at all clear it would be upheld by the court of justice it because again the court of justice ultimately focused on both the limited scope of u.s. privacy protection and limited redress for eu citizens for u.s.

surveillance activities. and so with those two sort of learning questions, there is now a new case being brought again in ireland, again rented to a complaint by mr. schrems, this time by the protection authority itself. this case which is likely to go back up to the european court of justice has to do with the only alternative mechanism at the moment before privacy she was put into place to transfer data, and these are contractual agreements between data processes in the eu and the u.s. that are also provided as a mechanism under the directive took so here the companies and essential into into a private agreement that is defined by a decision by the european commission as adequately protecting personal data, but the same fundamental question is an issue which is, if a company

in the eu is transferring all of this private committee cases come personal data to the u.s., are they therefore exposing those eu individuals to surveillance activities of the u.s. government without providing adequate protection without providing for adequate redress? so really it puts real money at stake in the debate over the scope of these surveillance authorities and the surveillance protections. i think it raises a lot of fundamental questions about how privacy law will be structured in the u.s. one issue that's going to be coming up for the next 12 months is the renewal of 702 authority themselves. another issue that we're going to see in the next few months, and certainly within the next 12 months, is whether a new administration will carry forward some of the privacy provisions that were adopted by the obama administration. people have different views about how protective or not

those provisions may be be, bute of the fundamental flaws i think that the european court is likely to recognize in relying on executive orders, for example, is that they can be rescinded. they don't exist permanently or semi-permanently in law. and so it will be a real test in these new cases and a real measurement of what's happening in the new administration for the european courts to be able to watch as privacy law changes in real-time in the u.s. and react to that. that's really just a dimension, is to have an outside view of what's happening with u.s. surveillance authorities going forward. so that's the short 15 minute version of the schrems case. if you a lot more issues there but i think going forward it's going to continue, these cases, there are several now, are going to continue to raise really fundamental questions about how

u.s. structures its privacy protections, especially whether to what it extent it grants protections to innocuous persons abroad. thank you. [applause] >> so first thanks to cater for putting on this terrific conference and to julian for inviting here to speak today. -- cato. i want to talk about what i says to sites of the same coin, which is you as a data that happens to be located outside the territorial boundaries of the united states and foreign governments need to access data that happens to be within the territorial boundaries of the united states. i'll give you the punchline from the outset. in my view, the current set of rules are imposing arbitrary limits on law enforcement ability to access data based on where that data happens to be

held. it's an attempt in my opinion to kind of transpose those that apply to other data on. >> guest: the unique and different pages of data including its divisibility, perhaps most important way for these purposes the fact of third-party control, the fact that compass like facebook, microsoft, google tend to control where our data is located without us as the users having any say in that fact. these together make location and increasingly arbitrary and normatively unsound basis for limiting law enforcement jurisdiction. while these limitations are often described as privacy protection, actually undercut privacy as well as security and economic growth and innovation. so let me start with the problem of u.s. law enforcement access to data cross borders. this was the issue that was cited this summer by the second

circuit in what's known as a microsoft island case. i some doing here is my with that case you get started back in december of 2013 when the u.s. government served a warrant pursuant to the electronic key medications privacy act, which is also called ecpa, on microsoft seeking data associate with a particular account of microsoft word over the noncontent data, things like name, ip address, billing address, billing information but it refused to turn over the content of communications saying that those were stored in dublin, ireland, that the united states word jurisdiction only extends to the turtle boundaries of the united states and that therefore the war was invalid. the government fought back as the government put it and to lower courts agreed. this is not a traditional search warrant that involves u.s. law enforcement officials clashing over into ireland's territory and seizing property there. rather, was directed at microsoft requiring that

microsoft disclose the sought after communication. the data was in ireland but microsoft employee sitting in redmond, washington, could access the data without ever leaving the territory of the united states. it was a territorial nodded extraterritorial search back into the compelled disclosure order issued pursuant to a subpoena. the second circuit reversed ultimately sided with microsoft and concluding the relevant steps about privacy, disclosure, that wasn't extraterritorial search and that the united states lacked the authority pursuant to ecpa extends only to data that is physically located within the united states territory. this case has since entering the litigation, the ruling has been described as a privacy when by many. i'm not so sure that this is true. remember that here the government got a warrant on probable cause. there is no question that it

would've been able to access that data at the data been located within the united states, and there would be no privacy violation, assuming that everything was fine with a warrant. it doesn't become a privacy violation just because the data is moved outside the territorial borders. in fact this case is arguably bad for privacy and less one just thinks that any obstacle in way of just law enforcement is a good thing. the end result means that if the united states law enforcement officials seek to did it happen to the outside our borders, it needs to now make a mutual legal assistance request for that data. and then the foreign government should just respond access at that data according to its own standards. in many i would say in most situations, the standards are lower, less protective than they warrant based on probable cause overseen by an independent magistrate or judge. and second even if the case is about privacy, it's not at all

obvious that as the second circuit concludes the privacy and treatment occurs in ireland. microsoft already has access to this data as a caretaker and, in fact, moves it around without notice to or consent by the user. in additional privacy intrusion takes place someone microsoft moves that data but when the update is turned over to the discovery. that happens in the united states. not ireland. this ruling has a number of potentially significant practical implications for the u.s. ability to access data lawfully, even when the targets u.s. face a u.s. citizen and the government has probable cause to access that data because of where it's helped his happens for at least three reasons. first, the slowness of a mutual legal assistance process that can be too long to be useful. second, the united states only has mutual legal assistance treaties with about a third of the worlds countries. it may not have a workable means

of accessing data, third not all companies are structured like microsoft which has a relatively location driven approach to outlet stores and accesses data. help is like google and facebook for example, constantly moving data around in ways that can make sometimes hard to even ascertain what particular data is located at the particular moment a warrant is served. but more important to a company like google, for example, i structured its operations so that if the data can only be accessed by law enforcement teams that are located in the united states. let's assume the united states government serves a wart on google for data associate with a particular account. if some or all of that date is outside of the united states, google can't lawfully respond. but if he is government then goes to the foreign jurisdiction, the foreign government says we would love to help you but we can't, we don't have jurisdiction over the people who can access that data. you do.

and the practical result is that means there's no way for law enforcement to access that data even pursuant to a warrant based on probable cause. a big company like google can restructure to resolve these problems but at least in the short term this is the situation we're in. i think this result has two concerning side effects. first it encourages data location mandates as a means of ensuring access to data. this isn't so much a trend in the united states. the rulings like a microsoft ireland's case further incentivize foreign jurisdictions to mandate that data that is held there in part to protect against what often is perceived as the big bad reach of u.s. law enforcement. the reality is is, however, as e already stated that in many cases the standards that the foreign governments will apply will be less protective of privacy rights than the standards that apply in the united states. and second i think the reality has that powerful governments

will find a way to access data if there is a sufficient need. my fear is everything like this, ships surveillance efforts into less transparent, less accountable, more surreptitious means of accessing data that in governments like the united states might seek to access without independent review and oversight by a judge. they governments appealing this ruling and i also think that there's problems with the governments position as well and that the better the ideal solution is to congress to step in and get involved. i encourage everyone to read judge lynch is incredible with excellent concurring opinion in the second circuit on this point. point. in my view, and ideal and then that would permit the united states to access the communication content of its talk of pursuant to a warrant an investigation over serious crimes without regard to location of data, but also

require the government and the reviewing court to take into account countervailing factors like the national and location of the target, like the nature of the crime, like the laws of other nations that might preclude access and the potential conflict with foreign nations. so as to help protect against the situation in which the united states claims access to data anywhere and everywhere without regard to the sovereign interest of other states. so now i will briefly turn to the converse problem, foreign governments seeking asses to data that is located within the united states borders. so the same statute that is at issue in the microsoft ireland case also preclude u.s. companies from turning over data to foreign-based providers, content of communication. so think about the same problems from the foreign government perspective. uk law enforcement is investigating a london murder. the target, the witness and the victim are all in london.

if the alleged perpetrator were using a uk-based provider, the uk could go on a government, the uk law enforcement could go to that provider and get that data within days if not sooner. if instead the perpetrator is using gmail and uk law enforcement officials go to google, google says go to the mutual legal assistance treaty process. take an average of 10 months for a response to be sent back to the uk, and just as u.s. law enforcement officials are frustrated by the microsoft ireland decision, so, too, are foreign governments as a result of the inability to access data that happens to the u.s. controlled this is also leading to a number of concerning responses, again further encouraging data localization mandates which as i said permit governments to access data according to the own the standards often less privacy protective than the standards that exist in the united states. these kinds of mandates are also

costly, they undercut the growth and the efficiency of the internet as a potentially shut out small startups are entering into the market because they simply can't comply with the cost of holding data in multiple jurisdictions. we are also seeing governments increasingly assertive extraterritorial jurisdiction without regard to the conflict of laws that ensues and this is not just an academic hypothetical problem in january january 2015, there was a microsoft employee, executive who was arrested in brazil, facing similar problems as well. and as i've said these kinds of restrictions also further, encourage surreptitious means of accessing data. so as with the microsoft ireland case we need a solution and to think we have a chance to design a solution that yields a race to the top, or at least the raising of baseline procedural protections across the board rather than a race to the bottom

where every nation is seeking access to data based on their own rules without regard to things like the nationality of the location of the target and in many cases based on rules that are not particularly privacy protective. so recognizing this problem, the department of justice submitted legislation in the spring that would lift the blocking provision in certain circumstances, specifically would allow the executive branch to enter into executive agreements with other governments, allowing those governments to directly access content of communications from u.s. providers so long as they were not accessing data of u.s. citizens or persons in the united states in order to be able to enter into this type of agreement, the attorney general and secretary of state would have to certify that the country met robust substantive and procedural protections for privacy and civil liberties. and the requested also have to meet a number of requirements,

including the fact that they were particularized, and that there were time-limited, that they were reviewed or overseen by judge or independent authority, that information was not used to infringe on freedom of speech, subject to periodic compliance reviews by the united states. and these agreements also would have to be reciprocal meaning the foreign government would have to commit to allow the united states to make direct request to foreign-based providers for u.s. citizens of data or data of persons located in the united states. we can debate the specifics of these kinds of proposals, and i think there's areas where i would suggest changes at i would suggest that this is the right approach and one that would, if adopted, raise baseline privacy protections as compared to the current situation where governments are increasingly being incentivized to pass things like localization requirements.

such an approach also reflects the general premise that the united states has a legitimate interest in setting the specific substantive and procedural rules that govern access to data for its citizens and residents, but does not have a similar specification and imposing the specific rules of a warrant based on probable cause when a foreign government seeking to access data of its citizens outside the united states, so long as certain baseline protections are in place here notably the u.s. and uk have a draft agreement that would allow you and k law enforcement officials to do exactly what i'm talking about directly compelled the production of communication content from us-based providers in certain circumstances, but this can't happen without legislation. i know it's a hard time to predict what's going to happen in congress over the next few yearsyears, but i would say i tk this is and should be an issue that crosses party lines, and