their own lives. yet for 100 reasons many of them within our control they do them under our control, they do not. so let's return, as i conclude here, to that list of names. the civil war, the war between the states, the war of aggression the war for rebellion, the war for the union, the war for independence, the second revolution, the war fioreor ie manslaughter pax -- emancipation. it's easy to see how so many southerners would see the war as a war for aggression. i get that. we all get that. or the war for southern independence independence. or it's easy to see, too why former slaves might see it as a war for emancipation or northerners as the war for rebellion. if you think about it, you can see that. some might see this as a

bothersome debate. and maybe it's a symptom of why so many americans are kind of put off by the war. why do you argue about stuff like that? but let's look at those names in a different way. each of those names represents a perfectly valid perspective on the war. and each is a potential gateway for americans to engage in this story. this world-changing story. the problem is and for reasons that seem mysterious to many, people who are not inclined toward history the problem is we continue to throw barriers large and subtle in the way of those intellectual gateways into this history. we view the labels, these names as not able to stand side by side but mutually exclusive. if the war is a war of northern

aggression, it can't also be a war for emancipation. but, in fact it was. it was all those things. and that's okay. so like our fellow americans our history always challenges us to be better. we draw strength and inspiration from those who risked and gave all for our community's protection, our nation's protection, and we only pray, as we look back on them, that we're worthy of their sacrifice. we also model and emulate the wisdom and effort of those who struggled to improve their nation, not just those who protected it but those who improved it as well in both large and small ways. we learn from their tryiumphs and mistakes in ways that they never could. so this great and tumultuous tide of history that we ride,

that carries us here to this very spot today, and to this conversation at this moment, this tide of history with all its greatness and all its shortcomings all mixed up and intermingled has carried us forth. and our challenge as we leave here today and my final question to you is will we use the inspirations and lessons that the tide bears to continue the work of shaping and improving our great nation? thank you very much. [ applause ] >> don't run away. thanks for the thought-provoking talk. you put out a lot of questions to the folks here, and they might have a couple questions for you. >> okay. >> and if you do if you would come to the microphones in the

aisle, state your name and your question, we've got about five minutes for questions, and then we're going to wrap it up. >> william trout from williams williamsport, maryland. that was a very inspiring talk. >> thank you very much. >> you kind of went there and went around the bush and around the barn chasing it. you didn't answer the one question we all want. are we still fighting the civil war? >> well, are we still resolving the issues that the war revolved upon? absolutely. pick up the newspaper today. i don't know what's in it, i haven't read the newspaper today, but i guarantee you in the newspaper today, there is an article that raises questions about the appropriate role of the federal government in our lives. if you pick up a newspaper on

march 15 1791 i guarantee you'll find an article somewhere in there about what's the appropriate role of the federal government in our lives. so this is an issue that has been constant and that we continue to try to resolve. but only once in the course of that 200-plus years of conversation did that american discussion, that discourse collapse into war. and i think that as we look at the flow of our lives and how we resolve issues as a nation, it's important, really important, to understand how we failed to do that in the past and what the consequences are, which is, in my mind, at least another reason for all of us to not only be interested in the war ourselves but try to find a way to engage your friends and neighbors and people you don't even know in this discussion.

>> i will say that the civil war was not over in my life. about 20 years ago, we started going to some nascar races. we went to richmond virginia. was given a nascar flag with the checkered flag on the bottom but the confederate flag on the top. went to new hampshire speedway and decided we were going to fly the flag in the parking lot and we were told we weren't welcome. >> right. >> and if we flew that flag it would be torn down and it would be burnt. >> i'm not so sure that that's true, but there would certainly be people who would object to it. i think americans are generally very respectful of expression and i think that generally speaking people who are made uncomfortable by the flying of the confederate flag aren't tearing them down but they are expressing themselves for sure.

and, you know, once again, this is a call for just a step back to see that flag which may mean absolutely one thing to many of you as a symbol that your an ancestor walked under on famous fields, gave their lives all those things. it means something. but we must also recognize that it means something to someone else who saw it flown or displaced in a different context. so when we run into trouble -- i'm all in favor of arguing these things but when we're in trouble, we need to understand not everybody sees this the same way. it's not going to happen. >> i think once we figure out why, yeah, lincoln got emancipation through he didn't think the next step through,

civil rights. and there's ferguson today. we're still fighting the civil war? i think we are. >> that tide of history. absolutely right. >> these will be the last two questions, the gentlemen at the microphones. >> craig swain, leesburg virginia. you talked about the common knowledge that we've kind of confined and revised over the years. you made a mention of the mythic block of southern white civilians. do you see we start looking at reconstruction and an opportunity to do something similar in regard to the study of that period? >> i don't know that there's any way that someone who is engaged in the assess kwisesquicentennial and looked at the moral aspects of

it can't follow through on reconstruction. i know the park service is interested in doing that. the park service has a program entitled civil war to civil rights, which is intended to do this very process of taking this and carrying the discussion forward, which we hope to do. but reconstruction is maybe -- if you think that the civil war is a contentious issue, wait until we start talking about reconstruction seriously. there are very few issues that have more widely divergent views than reconstruction. by the way, that was craig swain who runs one of the best civil war blogs in the country if you want to just -- to follow his intellectual footsteps through his discovery of the war, it's a great place to go. >> last two over here. >> i never thought i would live to see the day when thousands of americans in new york city were

marching this summer chanting what do we want? dead cops. when do we want them? now. we are a very divided country today with racial relations. president obama has weighed in on ferguson he's weighed in on selma, he's weighed in on trevor martin in florida. i wonder how the park system feels about his lost opportunity to unite us by going to vic vicksburg or going to gettysburg or going and celebrating the 260,000 -- let me change that -- 360,000 dead union soldiers who died for the national stated

policy of freeing the slaves that they never met. >> well two things. first off, i don't have the slightest -- the national park service doesn't really have a mind of its own. it is a collection of people with a lot of their own minds. and secondly the president of the united states is my boss. so i would be a little bit hesitant to -- no matter what my opinion was -- to enter into that discussion with you in this setting. i'll be happy to when i'm off my uniform and walking the streets sometime, i'll be glad to offer up my opinions on that, but not here and now today. i hope you'll excuse me for that. >> my name is a.j. douglas virginia. i hope you don't mind me doing this. it's kind of long but i'd like to say i don't really think the civil war was completely about slavery.

why? because throughout history people didn't really care about black people that much. i don't mean to say it that way but, for example the shooting in paris. the same day 5,000 african-americans were killed. didn't happen, it wasn't on the news. if confederacy won the war economically, how would things change in the country? because either way, union 1, confederacy 1, they're still slave owners on the back of our money. so if slavery was the object to get rid of it did we really do that? because it still resonates there. >> well there is a number of issues that you raise. i can't tell you what would have happened if the war -- if the confederacy had won the war.

there have been books written about that, there's lots of speculation, and i don't really have anything to add to that conversation. but your question is a perfect example of why -- how this tide of history just still engulfs us. it's all absolutely connected. no question the civil war was about many things. many of the issues that we hear about, the tariff and national banking system and economic policies, all of those were certainly part of the whole thing, but they have also been part of the discussion from the very beginning. but there was one issue that lit that spark, that turned this discourse about the proper role of federal government in our lives into a war. and that issue was, i think, unarguably slavery that did that. now, you equate the issue of

race and america's comfort with race with its view on slavery. they are obviously closely related, but the great impact of the american civil war was not a giant stride forward in race relations but a giant stride a new direction as it related to government policy with respect to race. the hearts and minds of people move slower oftentimes than constitutional amendments reconstruction acts, all of these things. so there are two issues at work here. you know people often point to the emancipation probable causeclamation or even the 13th amendment or the 14th amendment or the 15th amendment and say, look it's still a problem.

but the great watershed of the american civil war was that it pointed the nation in terms of its institutions and policies in a new direction that it had never taken before. all else followed haltingly slowly loudly, boyceiser boisterously, and it still follows us today. >> thank you. >> thank you. here are some of our featured programs for this weekend on the c-span networks. on c-span2's book tv, 10:00 p.m. on "after words," grover norquist says americans are tired of the irs and our tax system. and sunday at 8:00, allies in

world war ii and their unexpected partnership during the war, roosevelt and stalin. university of virginia's professor jennifer murray on how civil war reunions have changed. and on saturday at 8:00 p.m.-- sunday at 1:00 p.m. 150th anniversary, surrender at appomattox. on april 9, 1865 confederate general robert e. lee met union general u lizlysses s. grant and surrendered his army. while they were still active in

the field, the surrender of the south's most potent fighting force effectively ended the civil war. next we tour the american artifacts historical park to learn more about what surrounded that day. >> welcome to american artifacts historical park. i'm the park historian and now we're standing in front of the clover hill tavern. this is the oldest building in the village built in 1819. in fact, this area was called clover hill before it became appomattox courthouse in 1885. this county was one of the later counties formed, and they took part of the four surrounding counties and formed appomattox county in 1845. this county had about 9,000 people in it. more than half of them were enslaved working on the tobacco farms. as of 1860, about 120 people lived here in appomattox

courthouse. folks would stay at the clover hill tavern as they traveled along the stage road. the courthouse was built in 1846, maybe finished in 1847. there was a jail that burned during the war and a new jail was built across the road. interestingly enough when people come to appatomattox courthouse, they learned in their schoolbooks that the surrender took place at app appatomattox courthouse. the actual slaying took place in the house of mcclain. if you're talking about the building courthouse would simply be one word. this is where the most significant events with the military took place in the spring of 1865, april 1865, with lee's surrender.

now we're going to walk down the richmond lynchburg stage road and discuss the battles of appatomattox station the battle of appatomattox courthouse which effectively ended lee's retreat. we are standing on the historic richmond lynchburg stage road which was a critical part of general lee's retreat on april 8 and april 9, 1865. many people wonder why general lee wasi/w even heading toward appomattox court house after leaving lynchburg and petersburg on april 2nd 1865. the idea was he was going to concentrate his army at amelia courthouse and link forces with general johnston in north carolina. general grant was a bit different than former generals of the union army and he blocked general lee's line of retreat, thus general lee had to continue further west, searching for rations and hoping to get

around grant's army. the next place general lee could gather supplies was about three miles from us here at appatomattox station. supplies had been brought over from lynchburg to feed general lee's army. it's everything the army really needed. hundreds of thousands of rations, new uniforms equipment, and that's where they're heading for on april 8 after leaving cumberland church on the night of april 7. general lee's advance is led by confederate reserve artillery under general rubien lindsay walker. they go to camp about a mile from the station on the afternoon of april 8. and general custer's cavalry advances on that station and captures the supplies, then encounters general rubien lindsay walker's general artillery and fight for about four hours the battle of appatomattox station. a very unique battle in the

civil war because it's mounted cavalry attacking unsupported artillery. no infantry fanfantry involved other than they picked up weapons. the battle lasted until after dark and then general custer overruns the remaining guns of walker captures about 1,000 prisoners and 200 wagons. the advance of custer's men continue over that ridge and into the village here where they are repulsed at the eastern edge of the village and during the night, the federal cavalry form on the ridge west of town. during the night, general lee has a council of war with general john gordon james longstreet and fritz lee asking, should they surrender or try to break out? it's determined they will try to

break out on the morning of april 9. general lee brings his troops to the village on the morning of april 9. he files off to the right and left into these fields. he's going to attack that ridge. there is a federal cavalry brigade under colonel charles smith. general gordon has about 5,000 men. he's supported by fritz lee on the right with about 4,000 cavalry. the attack begins a little after 7:30 that morning and they successfully drive the federals off that ridge doing a left wheel. but hard-marching infantry from army of the james the 24th corps and division of troops from the united states colored troops had covered over 30 miles on april 8. and they come up and closed the road back down and begin to push gordon's men back into the appatomattox from the river valley. they come from the army of the

potomac, and further to the south and east is general custer and general devlin's cavalry swinging around the left flank. behind general lee about four miles from here is general immediatemeade with army of the 6th corps, and general lee is effectively surrounded. white flags are flown to stop the fighting, and in the course of the fighting lee's army had dwindled from 60,000 men to 30,000 men here at appatomattox court house. he had lost half his army. he determined it was time to meet with general grant and surrender his forces. they did that over here in the mclean house on the afternoon of april 9, 1865. we're now inside the parlor of the home of wilmer mclean, appatomattox county resident, who moved here in the fall of

1862. general lee and general grant corresponded for over three days and finally after being effectively surrounded here general lee wished to have a meeting with general grant to surrender his army. lee sent lieutenant colonel charles marshall of his staff into the village to find a suitable place to meet, and he encountered william mclean and mclean offered his own home. lee arrived here about 1:00 sat here at this marble-topped table. general grant, after riding over 20 miles, arrived about 1:30. when he came in he sat at the oval wooden table here. the two had met each other in the mexican war, and that was their first discussion. they talked about the mexican war for quite a while, and the conversation got quite pleasant, and general lee reminded general grant the nature of this meeting and asked general grant to put his terms in writing. grant sat down and set his terms in writing for general lee.

principally the confederate officers were going to be paroled and allowed to go home. he was going to allow the officers to keep their sidearms and personal baggage. and general lee later requests asks if his men can keep their horses. grant initially said no that that is not in the terms, but thinks about it for a minute and says that he understands that most of these men are small farmers andñr they could use these horses, and he will not rewrite it into the terms but ltwill allow the confederate soldiers to keep their horses if they owned one. general lee said this would have a very happykáaffect upon his army. the terms are read over by general lee and given back to general grant. general grant calls forward theodore bower of the staff to write out these terms in ink. bowers is nervous. he boschtches the job and turns it over to eli parker.

he is said to have the best penmanship of the staff and he actually writes out the formal terms for general grant. general lee's staff officer is lieutenant colonel charles marshall. hea5writes the acceptance letter. they exchange those letters. that's how the surrender is affected, the exchange of the letters. they both do not sign one document. over the course of the meeting, general grant introduces officers of his staff to general lee. some of them general lee knows very well, such as seth williams who was lee's agitant when lee was a commandant at united states military academy at west point. another interesting aspect of general grant's staff, there was a young captain named robert lincoln on his staff, and he of course, was the son of president abraham lincoln and he was here in the room. another interesting participant in this ceremony was -- at least, maybe not participant but a witness to this ceremony

wast( this rag doll of lula m mclean youngest daughter of wilmer mclean. it was sitting on the couch when the officers came in and they moved it to the mantle during the meeting. after the meeting some of the officers took the doll off the mantle and began tossing it +xuty captain thomas moore of general phillip sheridan's staff took the doll home with him as a war souvenir. in the 1990s, the family wanted the doll to come back to appatomattox court house and it is now on display in the park visitors center. the meeting lasted about an hour and a half. it was said to be a gentleman's agreement. general grant was very generous with the terms. in the end when general lee said he had nothing to feed his men, general grant ordered rations to be sent to feed lee's army.

the men shake hands general lee departs, goes out into the yard, calls for his horse traveler and rides back to the confederate army, bearing the news of his surrender. the gentleman that owned the house at the time of the surrender, wilmer mclean was originally from alexandria. he had married a wealthy widow from manassas and that's where he lived at the time of the first major engagement there. after the second battle of manassas, he decided to move south. he could not conduct business up in northern virginia. he got into sugar speculation. he was not a farmer, as many people will put out. he got into sugar speculation and this area was convenient because he could access the south side railroad and make trips through the south to deal in that sugar. he owned the house here at the time of the surrender, and then in 1867, they are not able to keep up with the payments on the house, and the house is sold and

the family moves back to northern virginia. after the house is sold the raglan family owns it for a time but in the early 1890s, a group of union veterans have a plan. they're going to start a retirement community for union soldiers here at appatommatox courthouse, and they buy up land west of the village. they are unsuccessful in selling off these lots to union veterans, and they decide they're going to dismantle the house in 1893 and move it to washington, d.c. asknd create a civil war museum out of it. the house is dismantled. parts of the house are stacked out in the yard. unfortunately, there is a financial panic in 1893 and the firm goes bankrupt. and all the supplies outside the house, all the materials, either start to rot away or are taken as souvenirs. the park service, when it is --

takes over the facility in 1940, determines the one thing they're going to do is rebuild the mclean house. fortunately, the same company that took the house apart got the bid to rebuild the house, and they still had the plan. so it's been rebuilt on the exact location using the original plans. there are a few bricks to the hearth and the basement. 5,500 original bricks are used on the front of the house. so when you're walking up to the house, you will pass bricks that were here in 1865. we're back in front of the clover hill tavern which was owned in 1865 by wilson hicks. i'm going to take you inside and tell you what important events took place in the tavern with the printing of parole passes for the confederate soldiers so they could return home. we're now inside the clover hill

tavern where parole passes were printed for the confederate soldiers to return home. part of the agreement was that general lee's army would be paroled rather than sent to prison camp. general lee and general grant met a second time here at appatomattox on horseback on the morning of april 10 and general lee requested some safeguard for his men that were going home. general lee surrendered only one army the army of north virginia. there was richard taylor with troops in louisiana and alabama, kirby smith out in texas. his soldiers will be passing through these areas where armies could still be fighting. they don't want these soldiers to be picked up and sent off to prison camp. they don't want to be pressed back into the confederate army because they've given their word not to serve anymore until exchange. and in the extreme, these soldiers, if they're traveling home passing through confederate lines could be considered deserters and

executed. so general grant thinks it's a good idea to have something for these confederate soldiers to go home. that's what the idea of the parole pass comes about. john gibbon a core commander of the army of the james, said he has a printing press with him. he calls out for them to come work these presses around the clock until they struck off 28,231 parole passes for the confederate soldiers. that's how we know how many confederate soldiers actually surrendered here at xd appatomattox. general george sharp was put in charge of this process, and the men printing those passes worked on printers similar to this, and they kept those passes going. they would have to ink the printers and strike off paroles that would look like this. they would actually have to be hung and dried and then they were cut into individual parole passes. these were sent over to the confederate army where the

officer and their command would fill in the soldier's name and sign the parole. and that was giving -- made into a master list of paroles that was turned over to the united states forces and that's how we know what confederate soldiers were paroled here. each soldier would take this pass and on the way home grant afforded them to receive rations from united states forces should they encounter. they could use them for transportation on ships and railways. we've even seen occasions where soldiers are being issued shoes and clothing on their way home. so it was a very valuable piece of paper to have. and it was one that was treasured by the confederate soldiers because it was physical proof that that soldier had made it to the end here at appatomattox with general lee. he did not desert the army. next i want to take you to the place where general lee and general grant met on horseback on april 10. it is also the area where the

confederate army came up to stack their arms on april 12th in the formal surrender ceremony. behind me is the appac!"q=aq"dq$hju)jappamattox where the confederate army camped, and at the top of the ridge is where general lee's headquarters was located in april 1865. there was a second meeting between general lee and general grant here at appatomattox. they met four times during their life. once at the mexican war, at the mclean house on april 9, here where we're standing on april 10, and when grant becomes president, lee pays him a courtesy call at the white house. but where we are now is where they were on april 10. general grant said he wanted to meet with lee one more time before he headed for washington

and he asked general lee to surrender all the confederate soldiers. he had only surrendered soldiers in north virginia. there were some not surrendered. lee$9 declines to surrender them saying he couldn't communicate with general gordon to find out his wishes. once lee's army surrenders those other armies follow suit. two weeks after lee's surrender here at appatamottax, he surrendered to general william sherman. lee surrendered his troops on may 4, and actually, andrew johnson declared the war over on may 10 1865 just a month after the surrender here at

appaomattox. however, there was still kirby smith with the army down in texas, and his official surrender is not until june 2nd 1865. the surrender here at appomattox was a few-day process. they appointed commissioners to work out the details of how the surrender will take place. that is done by those commissioners onlp april 10 and the confederate cavalry is set to surrender their sabres on april 10 the artillery on april 11 and the bulk of general lee's army the infantry, surrenders on april 12. 10,000 men would infiltrate and i'll take you to the road where they surrender now. we are once again standing on the richmond lynchburg stage road. in front of me is confederate

artillery piece that signifies where the last artillery shots were fired on the morning of april 9th. also in front of me is the home of george pierce. he was the county clerk. and on the evening of april 11 1865, he had a special guest for dinner general joshua chamberlain, who had set up his headquarters tent in his yard. at this dinner, chamberlain brought with him coffee, real coffee that pierce hadn't had in well over a year. and over the course of their dinner conversation, pierce undoubtedly learned that chamberlain was in charge of the actual surrender ceremony for the confederate infantry on the morning of april 12th. chamberlain has his men lining this road from the lee grant meeting site all the way up to the mclean house on the morning of april 12th at about 5:00. his men are out here for several hours before the confederates approach, and they start leaning on their rifles talking amongst

themselves. but as the confederate troops approach, general chamberlain calls his men to attention. they straighten up, asknd then he calls out shoulder arms. they lift their rifles from the ground to this position here. he's got about 4,500 men lining the road, both on the north and south side and they're presenting a salute to the confederate soldiers. general gordon at the head of the confederate column coming up, returns a salute and calls his men to return soldiers arms as well. they face front. they stack their arms, take off their equipment and turn over their flags. and that's probably the hardest thing for those confederate soldiers because those flags meant everything to them, and giving them up symbolized the end of the war. the confederates would counter-march, go back to the appomattox valley. they would then reform.

these ceremonies went on all morning and into the afternoon. very emotional and touching ceremonies, but very respectful on both sides. as the last confederate troop stacked their arms out here on the road and returned to their camps, from the camps they were allowed to start their journey home. the war was over for those soldiers. now we're going to go to the park visitors center where we have our museum, and i'll show you some of our special objects in our collection. we're now in the park visitors center museum where i'll show you some of the items on display, including this original painting done by louis giuyome done of the surrender. it's the most accurate painting of the surrender, but it does have some inaccuracies in it.

lee and grant never sat at the same table, and lee was a three-star general not four stars as in the painting. guiyamme was born in france. he em greatedigrated to virginia and lived there. the0$"-mservice acquired this painting in 1954 for $1250. that money was collected from locals and schoolkids here in appomattox county to purchase the painting. what i'd like to show you next is what's left of the first truce flag that was sent out to the federal forces that was carried by captain robert sims. he bought this towel in richmond prior to leaving the campaign. he said he spent 20 to $40 confederate money for it.

he was given this flag to stop the advance of custer's cavalry that were preparing to make an assault on the confederate left flank. throughout the events of the day, it ended upcoming to the possession of a staff member named whitaker, and whitaker presented it to custer. over the years libby custer would cut off pieces of the truce flag to give out to souvenirs to people who were favorable to her husband, especially after his death at the little big horn. this peels is general john give-- theyrg three commissioners each. grant appointed given griffin and leslie merritt. leah pointed william nelson pendleton, james longstreet and john gordon. they went to the tavern to have their meeting, but they said it was a bare cheerless place, so they repaired to the mclean

house where givens had set up his headquarters. there was no furniture left in the room because the tables had been taken as souvenirs after the meeting on april 9. so givens used his camp table and had it inscribed after the fá commissioners' meeting. this is our display on theq apple tree. what is the apple tree? well, it's one of those myths about appomattox about lee's surrender. why is it a myth? because the event that supposedly took place there wasn't what it seemed. lee and grant had been corresponding for several days, since april 7, about the possibility of lee surrendering his army. and on the morning of april 9, when lee is finally ready to surrender his army, he sends a me say aj message to general grant. but general grant is moving his headquarters, he's on about a 20-mile ride, so lee's message

catches up with him maybe about 11:00 that morning. he has to dispatch menw3 to rida head to make the arpgrangements to meet with general lee. he dispatches william babcock and lee dun norks rida head and meet lee. they findley resting under an apple tree at the appomattox river. general lee's artillery are on the hills behind this apple tree and they see general lee talking with him under it. he dispatches his orderly to come into the village find a place to meet and eventually lee, babcock and dunn ride into the village to the mclean house. the next time the confederate soldiers see general lee they learn they've been surrendered. they mistakenly assume that the federal officer talking to lee under the apple tree was general grant. so they went over and started to

cut the tree down for souvenirs. before long federal troops came over and asked the confederate soldiers why they were cutting down the tree, and he said this is the tree where general lee surrendered to general grant. the confederate soldiers said i want part of that tree, too. they went to work getting souvenirs off that tree. that night all the roots had been dug up and there was nothing but a hole in the ground where the apple tree stood. visitors will come through and bring pieces of the apple tree that their ancestors brought home to them, some of which have been donated to the park and on display here. it was removed when he wrote his memoirs. i think one of the most moving pieces in the collection is a letter written by charles mineing gereau.

he had joined the army i think, maybe a little bit against his parents' wishes, and during the waning fight here at appomattox courthouse on the morning of april 9, as they shut down the richmond lynchburg stage road, fritsch lee decided to escape where he could. he didn't know they were able to take their horses. a bullet struck him and knocked him off his horse. a physician said he was a dead man, so they pinned a note to his jacket to let his father in richmond know of his death. as he's left dying on the battlefield, he pulls out a piece of paper and writes a rather moving death letter to his mother. he says, my darling mother. i am dying but i've fallen where i expected to fall. our cause is defeated but i do

not live to see the end of it. i suffer agonies. wish to god i could die calmly but i must see his will be done. my latest regret to leaving this world is to leave you and the rest of the dear ones. the younger children will be more comforting to you than i have been, but none of them will love you more. that is his death letter to his mother. but a fellow surgeon named norris with the new york regimen actually finds minigrode on the battlefield, operates on him, removes the bullet and saves his life. so in the end he doesn't die on the battlefield here at appomattox. what we've covered today are just some of the high points at the park. there are other exhibits and buildings to see if you come out and visit for yourself.

appomattox is one of the most significant events in american history. this is a place where the killing of americans by americans to the tune of over 700,000 ended. it's also the place where we decided we would be one nation instead of two. the events at the mclean house on april 9, general grant's generosity to general lee and his men and the events on the richmond lynchburg stage road during the stacking of arms set a positive course for the nation and allowed for a stronger country to emerge. please pay us a visit or even make a special pilgrimage to visit our site. >> you can watch this or other american artifacts programs at any time by visit lging our

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facebook and twitter. now examining how digital searches, government surveillance programs, and digital age technologies are having an impact on fourth amendment protections against unreasonable searches and seizures. this conference is hosted by american university. it's about an hour and a half. >> so welcome, everyone. gooaiz%eájj thank you all for being here. a special thanks to nacbl and the criminal law practitioner and particularly to jamana who did a lot of behind-the-scenes work to make this happen. i'm going to very brief introductions so we can get right into the meat of our panel. you also have longer bios that you all should have received attached to the agenda for today. so all the way on my far right we have cramp win crump who is

an assistant professor and clinical proser if and associate director of the technology and public policy clinic at berkeley. she was also a former staff attorney at the east l.u. for nine years. next to here we have eric wenger who is a director of cybersecurity and privacy at cisco's global affairs division here in d.c. also former counsel at microsoft. to his left, my right, is liz today goitein, the co-director of the national security project at the brennan center. also a former counsel to senator russ feingold and immediately next to me we have joseph lorenzo hall who is the chief technologyist at the center for democracy and technology and we're particularly excited to have him here to talk about the technological aspects of all of this. so i am going to "d>ñremind us of what we all know. that there's been a tectonic shift in the way data is collected, stored, the ways in

which we communicate over the past 10, 15 years. so our panel is going to explore the implications of that. both what's happened and what that means for the law and for policy. and i'm going to run this as a moderated discussion. ñ i really want to have a conversation between the panelists and eventually there will be time for all of you to ask your questions, as well. i'm going to start with joseph and i want my question is about the underlying technology, just to lie out what's happened. so what have we seen? what's changed in the past 10 15, 20 years and what's the world we're living in now? >> thank you very much for having me and for organizing this event. to put it simply, surveillance is -- and collecting data about individuals that are targeted for investigation or not targeted for investigation has simply ballooned extraordinarily.u!8x surveillance has gone from passive types of collection to increasingly active types of collection.

i will describe what i'm talking about there in a minute. from targeted to increasingly bulk forms of collection. and to sort of less intrusive forms of getting this stuff to pretty dramatically intrusive and shocking in some cases at least to me as a technologist and people who care about civil liberties in general pretty shocking intrusive methods. surveillance historically has been what we call sort of passive signals collection. what that means is you can think of it as just listening. traditional eavesdropping where someone is communicating and you sit there and you capture the stuff. and you analyze it there. with the sort of amazing explosion that the internet and digital technologies have created there is a much more active surveillance. what i mean by that is not just listening but participating in the communication flows in ways that are meant to sort of undermine the trust in the

systems, and to get access to things that they might not already have access to. so for example when you communicate online with your bank or something you will see a little lock in a web browser. that's basically saying this is an encrypted transmission. it means if someone were to eavesdrop on it looks like gobbledygook. not only that but it's authenticated. when someone vouches that this is your bank and browsers go to great lengths to make sure that is the case there's something called a man in the middle attack where, say, catherine on the end of my panel is trying to communicate with me and we won't use eric, we'll use liza here liza wants to intercept our communications. what could happen is catherine could send a signal into the ether, liza can essentially pretend like she's me, and send credentials back to catherine that look like me, and then very transparently pass that information on to me. that sounds very passive in that they are not modifying the

content of the communications. but what they can modify are the credentials sent to sort of undermine your ability to engage in confidential and -- confidential communications that have some underlying integrity so they can't be changed. not only that but we have seen this weaponized by the national security agency and its global partners into something called quantum. which make no mistake about it is basically what i call a global attack infrastructure on the internet. what i mean by that is we don't know a lot of details about this stuff. it often comes up in powerpoint slide decks from the nsa. essentially this is something that's with a select targeted program, with a selector it can intervene communications flowing over the internet such that it can poke a hole in your browser and exploit a vulnerability in what you you're using to communicate with and then once they have that installed software in your computer to do a variety things. capture keystrokes for passwords and a whole bunch of things.

it is targeted so it's not doing this to everyone all the time. there is other stuff they're doing to everyone all the time. that's what i mean when it's gone from targeted surveillance to increasingly bold. a good example of this is the muscular program. mousse dollar is all caps. i wish i could shut it. mousse dollar. the mousse cue lar program was one where the nsa was overseas tapping the entire datali)r'ks between yahoo data centers and google data centers. these are the private networks between these data centers taking all the information that was sent over those links. it's a lot of information and when yew hoo pushed out an update to its internal file system storage, the way they store data they had to sync this stuff back, nsa had to turn it off because the essentially all the stuff from everyone all at once over the period of a day or a few weeks. that is to some people and the first thing we look about from the 215 metadata program was pretty shocking to a lot 6 us

when we realized that, you know, some amazingly large 99.9 something fraction of these people are entirely innocent in their date is being collected. i like to say the nsa and its partners were converts to what we call big data way before industry caught up. they were basically collecting all of the hay in the haystack to get access to all the needles in the haystack. finally this kind of surveillance is gone from sort of relatively unintrusive. xd part of this is just how society has evolved. so going from relatively unintrusive to very intrusive. we used to say our digital watches have more computing power than the early computers and unfortunately your smartphones and ipads and i'm using to look at my notes right now are vastly more complex and capable. and so you get this combination of sophisticated analytical techniques, and then subversion of technical hardware and software. you have heard about content

chaining in the 215 data base where they look at these phone numbers called these phone numbers, these phone numbers called these. those all can be implicated once you have everyone's calling records. and there's other things like covert analysis where people on the same train, a target may be implicated as well. we are all creatures of habit and i see the same people on my train all the time. so there's a big opportunity for what we call false positives identifying someone for suspicion when we shouldn't have a suspicion. the last thing i will mention this when we get to, when we talk about less intrusive and increasingly intrusive we are starting to see very sophisticated subversion of hardware and software. some of these things are attacks on what we call keying material as technical folks. these are the encryption keys that sort of make sure that all the things you do can't be modified in transit and eavesdropped on it while you're communicating.

i think this is especially cute acute in a cy&m with cisco and eric can talk more about this. apparently the nsa is doing this stuff where when someone orders products and specifically cisco products because they send a lot of routers and servers very chokepoint computers that control a lot of your communications around the world, they'll capture these things. apparently very carefully open them and modify the hardware or maybe the software inside of that device and send it on its way. this is very troubling to a lot of us in the sense that these are chokepoint communications technologies that are being subverted technically which means just the same kinds of concerns that you may have heard about with the back door discussion with the fbi, this is fundamentally undermining the security and integrity of these products. it is important to the people using the products but it's also important to the businesses that require this trust to sell these products and to put this really good stuff out there. i know a lot of particularly cisco engineers.

i know a lot of engineers. but i know a lot of cisco engineers who are just some of the best and they work very hard to make sure that businesses who buy these things conduct communications to keep things like trade secrets, business deals and things that are time sensitive and sensitive personal and medical and financial information safe. we don't want to see that leveraged for bad uses such such as organized crime or things like that. i think i'll stop there. >> one announcement for those of you watching on line there will be a question-and-answer session and you can e-mail your questions to nacdlquestions@gmail.com. we don't get to them all but you can start thinking about that for those of you watching online. now i want to turn to liza. having heard about the technological developments can you describe for us how the legal framework has or has not kept up with these developments over time? >> sure. first thanks very much to national college of washington of law for hosting this event and having me participate. i think it's pretty clear

technology has made it much easier for the government to collect americans' information in massive amounts. even programs that are not only targeted at foreigners overseas are likely to sweep in a huge amount of americans' data, either inadgt qq1e or as they say incidentally. so the logical response to this would be to fortify the protections, the privacy protections for americans in the law but the law has evolved and exactly the opposite direction and indeed since 9/11 there has been a sea change in the law. if you back up a few decades following the church committee's revelations in 1970s there was a series of laws and policies put in place that establish a kind of golden rule. intelligence agencies could not collect information on americans from within the united states without some individualized fact-based suspicion of wrongdoing. now the purpose and the effect of this rule was to constrain

the abuses that had come before it. in the past 14 years a cardinal principle has been utterly jettisoned from the law. so let's talk about the three legal authorities that we know of under which mass surveillance is currently occurring. the first is section 215 of the patriot act. this is the provision that allows the government to get a fisa court order compelling g1ñ companies to turn over business records in foreign intelligence investigations. and these are records like phone records, financial records, hotel records and the like. before 9/11, the government had to demonstrate to the fisa court that the subject of these records was a foreign power or an agent of a foreign power. that is defined in the case of an american in a way that necessarily involves some element of criminal activity. congress amended the law throughc the patriot act so that the government doesn't have to show anything about the subject of

the records, rather the government just has to show that the records themselves are relevant to the investigation. now relevance as we all know is a veryúly standard. this still seems to preserve some level of individualized review.ñi but in fact as we now know the fisa court interpreted this provision to allow the bulk collection of essentially all americans' telephone records on the bizarre theory that millions and millions of totally irrelevant records can be considered relevant if there are some relevant records buried within them. now this is a very dangerous interpretation because there are a lot of other information collection statutes out there %s that use 9 relevant standard. so who knows how they're going to be interpreted in the future. with this program we have moved from individualized suspicion of likely criminality to no individualized showing of anything.

the second program is section 702 of the fisa amendments act which relates to the collection : of communications content, phone calls and e-mails, between americans and foreigners overseas. until quite recently, just a few years ago with the government wanted to collect such communications it had to show probable cause to the f? fisa court that the target of the communication -- i'm sorry the targn of the surveillance was a foreign power or its agent. and again if the target was an american it had to involve some level of criminality. this was for surveillance occurring within the united states. that's what the government had to show. in 2007 and again in 2008 congress amended the law to get rid of any requirement for an individualized court order when the government acting within the united states collects communications between an american and a foreign target for foreign intelligence purposes. moreover the target no longer

has to be a foreign power or an agent of a foreign power. the target only has to be any foreigner abroad. the role of the fisa court is limited to approving the broad procedures for targeting which is how the government figures out whether the target is actually a foreigner overseas. not so easy in the digital era. and minimization. which has been construed to mean that the information about the american on one end of the communication should be deleted or masked or thrown away after some period of time, which is usually five years. it could be more. and there's a laundry list of exceptions to allow information about americans to be retained and used. so again we have moved from essentially something that was very much like a warrant to a mass collection with no suspicion of wrongdoing.çó finally there is the collection of signals intelligence. that's communications and metadata that occurs from

overseas under executive order 12333. this is by far the most expansive of the government's foreign intelligence surveillance authorities. it's also kind of a different bucket from the other two because there was never a golden rule here. there was never any individualized suspicion required because this was supposedly surveillance of foreigners overseas and these people supposedly have no constitutional rights so no the executive order basically allowed agencies to collect foreign intelligence which was defined, which is defined as pretty much any information about any foreign person or any foreign entity and they can do so without any judicial involvement. there is a provision in the executive order for minimization of u.s. person information. again minimization means that, in theory, the information is disposed of in some way. in fact, it is kept for years or more, and there's a long list of

exceptions for keeping and using this information. so the change in this area has been less about the legal constraints becausa4]hey are for never that many constraints but more the practical constraints. once upon a time there were limits on data storage and limits on analytical capacity, computer analytics such that you know collecting all of the phone calls going in and outq of a particular country and storing them for 30 days was neither possible nor really worthwhile because you couldn't analyze all that stuff. that is clearly no longer the case. it is happening. and then the other change in this area is that the distinction, this legal distinction between collecting information at home, and collecting information overseas has really become legal fiction given the way that digital data is transmitted and stored. this notion that americans have no constitutional interest at

stake when the nsa taps into datalp centers in europe and therefore no court has to be involved, really doesn't make any sense anymore. so i think i will stop there. [ inaudible ] >> major technological changes and relaxation at the same time of some of the legal limitations in collection. i want to turn to eric and ask about the business implications. what are the resulting perceptions around the world? what are the implications for u.s. business and what is the response then? and has it been adequate? >> thank you. first off i wanted to note you can see in my bio, but i also have a background in government, and i worked at the state attorney general's office in new york, the federal trade commission, and then at the computer crime section of the department of justice as a computer crime prosecutor so i have a pretty good background in the electronic surveillance laws, at least on the criminal side.

but i also need to start out by coming back to the point that joseph was raising about the impact on companies and an ( example that pertained to my company. clearly we are facing a difficult challenge with regard b.çg to striking the right balance with regard to the powers of the government has, the transparency around the use of those powers, being able to have a dialogue about what powers the government ought to have, really requires transparency as a starting point because if we don't know what's being done you can't effectively evaluate whether or not the powers have been granted properly, used properly. at cisco we don't view privacur and security as a zero-sum game. they are clearly connected. at the same time we don't view economic growth as being something that is separate from national security. they are intertwined.

economic growth should be a core value that is considered when we are figuring out what we want to=h be able to enable our government to do with regard to national security and economic growth depends on trust. it's hard to quantify damage, but i think if you look at some of the examples that we have talked about that you see significant expenditures by u.s. companies that can serve as a pretty good proxy for measuring the scope of the problem. you see litigation that has been brought by companies like twitter and yahoo to push back on surveillance requests. you see microsoft filing a lawsuit or engaging in litigation with the u.s. attorney's office in new york over data that's stored in ireland. and you see a very large range of companies joining in to that litigation in support of the position including not only cisco but ebay, hp ibm sales force, verizon, at&t, the government of ireland. so that gives you a pretty good

sense of the scope of the < concerns. and then you also see companies making efforts to build data centers in a way that allow for localization putting data closer to their customers. some of that may be based on performance but some of that is based on satisfying concerns that customers might have about where the data is stored and ñi what laws are used to protect that data. that is all expensive. trust has clearly been impacted technology industry including cisco. we have dedicated engineers as joseph mentioned whose job it isohnñ to engineer our products and services with security in and to build security in and to deliver those products in the way that we intend them. at some point there are things that we don't control. there are points where we deliver the product to our customers. the customers operate those products inside their networks. v b uurát)u(r' those

things and so there are a number of different places where attacks can happen and we are talking essentially about nation-state to nation-state attacks. those are highly sophisticated well-resourced, and in order to n: be able to address them and to '3ç figure out whether or not they are beyond the pale of what we as citizens are willing to accept, we really need as a =ñ dialogue that takes place between governments. we need to have some new rules of the road and we need to have a conversation between those governments about what normal behaviors are acceptable and which ones are not because the scope and the sophistication of the actors in the space are greater than the resources of any particular technology company. >> thank you. i want to turn to catherine. we have been talking a lot about foreign surveillance. and these vast intelligence collection programs.

but we're also seeing some real significant changes in the realmp$ of ordinary law enforcement. so, catherine, i'm hoping that you can talk to us a little bit about that, as well. >> sure. first of all, thanks so much fork'cm having me. i'm a huge fan of nacdl. when i was an aclu attorney the nacdl was a frequent comrade in arms working on many privacy issues. they were a client of mine we represented them challenging the government's policy of engaging in purely suspicionless searches of laptops and other devices at the international border. we co-counselled some cases together dealing with the supreme court's decision in united states versus jones, does attaching a gps device to a car require a warrant. so i'm particularly honored toó[ be able to come here and speak at a conversation organized by people who are out therelp doing so much good work. so, yeah, we've heard a lot about these large national security programs.

ä:q when i was at the aclu and now at berkeley one of my primary concerns is okay right most people's everyday interactions with law enforcement actually happens at the local "nlevel, and so to what extent our national security programs spilling over and affecting national local policing, as well which can happen in a number of ways. sometimes individuals who are beingñi prosecuted for say a drug crime may be have beenv incidentally swept up in one ofmy the big national security programs. but i think it's important to remember another big post-9/11 push that occurred. which was there is a great emphasis on the need to focus on homegrown terrorism, and as a result to gather more information about what was happening at the local level. we've seen the creation of very large pots of money that exists for the purpose of allowing local law enforcement agencies to acquire technologies at little or no cost. they have names like the port security grant program, operation stone garden. ómo

at first it might not be obviously something called the port security grant program would result in the expansion of of you know, why seattle, for instance, purchased this surveillance drone using money from the port security grant program. but it turns out that most urban areas are also the port ." areas similarly the operation stone garden which is justified as a border program, you know, many states have borders and at least water borders. so a lot of these programs created post 911 are used to purchase surveillance technology that gets upused in local policing. it happens for a second reason which is that the same technologies that may capture evidence of someone try to terrorism are exactly the type of technologies that would be used in local law enforcement agencies.+ for more routine crimes. ñr one of the things that was so describing recently was a story out of tacoma washington which acquired a string ray device, which is a technology that can

be used, it replicates a cellevtu phone tower and it can be used to track the location of a cell phone without having to go through the carrier. the way that device was presented to the city council was that as a device capable of locating improvised explosive devices. but when people filed foia public ñ records requests to say how has this device actually been used it turned the it had never been used in such a way. it was primarily used in prosecuting drug crimes.-f÷q so first of all the post-9/11 pots of money are often fizzling surveillance at the local if. second of all the same broad technological changes, the ability to collect, store, analyze and share information at-9 unprecedented rates have also made surveillance at the local level more expansive. i'm sure criminal defense lawyers see this all the time in their cases in some respects. it's pretty well understood that cell páp()r'g is a common law enforcement technique.

it's amazing to me today that there are still so few opinions on this point about whether the government needs a warrant based on probable cause to gather either realtime or historical cell tracking information. but at least we now know about the technique. automatic license plate readers are common. then there's technologies that are just around the corner, drones and increase expansion of facial recognition which i think people at the local level are also going to have to start dealing with and these things will crop up routinely in criminal investigations. so i want to allow for a more dynamic discussion so i won't say too much else. but i think there's a double problem here, right? first of all many of the ice of these technologies have been shrouded in secrecy. criminal defense attorneys can't file suppression motions when they don't know that the evidence was gathered in a way that might be amenable to that. a lot of the secrecy has been deliberate. the government made a strategic decision not to disclose that it was usinge inging sting ryes and instead

filed orders with court seeking authorization to use them in a less than probable cause standard in some cases that made them look like generic requests to use other surveillance technologies. so first of all we have to find a way to combat the secrecy. and second of all we have to come up with an organized strategy for sharing materials and briefs on how to actually craft arguments that judges will listen to about these technologies. >> thank you. i want to come back to a talk about this@/'zeá(jjt about the fourth amendment and we often turn to the fourth amendment as a way to regulate all of these foreign surveillance and the kind of surveillance techniques we're seeing in ordinary law enforcement. so how effective ishwç the fourth amendment in this area? what are the limits? >> i can talk about how effective it is in these nation 58 foral foreign intelligence programs and maybe catherine has some thoughts about their effective with some of these local strategies. when it comes to the collection

of communications, phone calls e-mails and the like, there are a couple of potential limitations on the fourth amendment in this context. and why it's not, i would say, sufficiently protective. the first is something called foreign intelligence exception. as all criminal attorneys know, the fourth amendment means that ñi when the government conducts a search on an american it needs afá warrant unless the search falls into one of several established exceptions to the warrant requirement. such as for example a search warrant for an assist. in the 1970s four circuit courts or appeals courts held that the government did not need a warrant to collect foreign intelligence information. but these courts but very strict limits on theé@ exception. for example the target of the surveillance had to be a foreign power or its agent. there was one circuit court, the d.c. circuit that refused to

recognize a foreign intelligence exception. the fisa court has recognized an exception but has absolutely discarded all of the limits that the other circuit courts so carefully crafted. the supreme court has not weighed ó[n. hasn't said whether or not there is a foreign intelligence exception, let alone now broad it is. so there's really a lot of uncertainty in the law in that area. another possible limitation on the fourth amendment at least an argument that is made, is that foreigners overseas have no ñr fourth amendment rights so the government doesn't need a warrant to gather their collection -- i'm sorry, their communications. once you are collecting someone's communications you are permitted to collect the communications by definition if fá anyone they're talking to and you need no additional process to do that.xd that is not, in fact, the rule. there have been some court rulings in cases where there was a warrant at the beginning of the collection and where there çh

were very, very strict requirements for getting rid of any information that fell outside what was identified in the warrant. and in those cases the courts 8g÷ held that the government did not need to get a warrant for each individual person with whom the target was communicating. that does not map onto a situation where the initial collection involves no warrant and they're very lax requirements. so these first two potential exceptions as you can tell underdc6 skeptical of but they are problematic. then there's the fourth amendment and metadata. so the fisa court held that the bulk collection of americans telephone records did not constitute a search under the fourth amendment because information about who we call, when we call them how long we talk to them is information that we have shared with a third party. that's the telephone company. and as we all know by now the something called the third-party doctrine which says that any information that you voluntarily

disclosed to a third party, you do not have a reasonable expectation of privacy in that information. this doctrine which came about in the late 1970s has come under attack recently and is unlikely to survive. it simply does not square with the realities of life in the digital era. each one of us leaves a trail of digital exhaust about a mile wide. the e-mails that we share with our internet service providers, the text messages we share with our mobile phone companies, the financial data that we share with atms, the location data we are sharing with cell towers that surround us. these forced disclosure to the companies that provide services to us really should not be equated with a voluntary disclosure to the entire world, including the nsa. ֖

so those are the issues. >> that concept of the third party doctrine actually plays right into the litigation over the warrant with microsoft for the data that's stored in ireland that cisco and many other companies have been supportive of. the reason is because the government's position is that, that they can demand access to the information that is stored in a foreign data center by subpoenaing a company that has headquarters or principle place of business in the united states. and so they essentially treat the records that belong to the customers as being records that belong to the provider. and pertain to the customer. this is an important distinction that elizabeth was just touching upon. so you turn back to the decision in the sixth circuit from 2010, and it holds that the electronic communication privacy

act to the extent that it would allow the government to gain access to the kinds of indications with something less than award is unconstitutional. and the position that the company's in the litigation are taking essentially is that not only do you need a warrant in order to gain access to the information but that warrants our territorial. and that they have application within the boundaries of the united states. and the goal is not to block access to use government to gain information they need in the course of lawfully authorized investigation but to establish a modernized framework and to avoid putting companies in the middle of conflicting legal regimes where it might be required to produce the information in one country and against the law to produce it in another. coming back to the notion of the third party doctrine though, that it's my view that the record that cloud-based providers are holding when you're talking

about the contents of the communications, that's fundamentally different than -- i mean i think there's a fair point that the whole doctrine might not hold. but that there's is a fundamental difference between the records of the transactions and the contents of the communications themselves. if you're talking about a bank record, the bank cannot transfer;)c]í)4fpu(t

we believe that the warrants should not have applications beyond the united states. if the government wants to gain access to the information that is stored in a data center that is in ireland they should go through ireland and make their request that way. >> can i just previously respond to that? i think the distinction between content that's held by third parties and metadata that's held by third parties makes a little too much of -- suggests a sort of difference in kind that i think is not necessarily there. the metadata itself, and this has been shown in a number of ways especially since the snowden disclosures is equally revealing of the personal information that is being -- that is part of the communication sometimes as the content itself. an example would be if someone calls a suicide hotline and hangs up. you know, repeatedly. there is zero content to that call. zero content. but the metadata tells you everything you need to know, and it's incredibly personal and incredibly private and that is

information that belongs to the person who made the call. it is true that the company generates the record. it is a ministerial act generating that record reflecting the private act of the person. i think i'm going to solicit a comment during the question and answer are perhaps the question from mike price of the brennan center who is studying this exact subject but for now i will just sort of put a pin in that. >> one more response there? >> sure. >> i think there are good policy arguments for the point that elizabeth is making but in the law there is currently distinction between in my view, a more clear distinction between the contents of communication and the metadata. so for instance, we come back to a bank record. the bank has to be able to document for anti-money laundering purposes that is has transferred money in certain ways and kept certain records. there is -- you can i think make a fair policy argument that a certain level metadata does create a picture that is

invasive to the point that it should be treated like contents of communications. but we do have in the current law reflected a greater deal of privacy protection for the contents of communication. and the argument that i'm making is not to say that you're wrong about the invasiveness of collecting metadata. and maybe that it should be treated in a different way, but at least insofar as the current law is written, we would argue that the government's perspective that they should be able to treat the contents of communications like something that they can demand with a s&p that can be domesticated back into the united states and turned over to them, is incorrect. that because we're talking about the contents of communications, because of the level of privacy there, that this is a territorial demand and therefore they need to go through the proper government channels in order to be able to route that request. >> i want to turn to catherine and let her talk a little bit about the fourth amendment implications. maybe talk a little bit about the public view doctrine and the

plain view doctrine, as well. >> sure. i want to make one thing that's sort of implicit explicit and that's the role that edward snowden has in bringing us all to the here today. i've been working on these issues for a long time. it was extremely unusual even five years ago let alone 10 years ago to have major american corporations speaking out in favor of greater data security protections, at least publicly. that is not the fault of the corporations but it is to suggest that because of his disclosures it has redesigned the landscape such as that now it gives the major comedy internet companies some cover to take steps to protect their privacy whereas before they would've just been hammered by the government for being on the side of the terroristic and i think we owe edward snowden a debt of gratitude for many things. but that is certainly one of them because the unfortunate reality is that the lobbying power of organizations like the

aclu and the national association of -- i don't even know if the aclu has one. but the people on this side of the civil liberties community compared to what you know facebook and twitter and google can accomplish. unfortunately there's a disbalance there and we should take our allies where we can find them. i do want to talk a little bit about the original question you asked which is how useful is the fourth amendment in this. and i feel really substantially more optimistic after the supreme court's decision in riley. because it was the first time the court officially recognized that there is a meaningful difference between digital data and the types of data used to just carry around with you. i've experienced this firsthand in my practice. i would be arguing these cases about can the government search your laptop at the border. the government's argument always was we can search your wallet at the border. this is simply no different and if you don't want to be searched you can leave this stuff at home. i think the supreme court in

riley by recognizing the fact that people carry these devices with them wherever they go, they contain vast quantities of information that are quantitatively and qualitatively different found that that justified the application of a heightened standard. i think that is game changing. i agree also that the third-party doctrine is a major issue. riley is useful particularly to the extent the government is engaged in surveillance directly itself but given how cheap and how much surveillance technology is proliferating, private parties will gather this information. so unless there is at least some barrier on the government obtaining the data from the private parties, in the form of changing the third party doctrine, there's -- riley won't be useful, right, unless we can win that. the other thing i wanted to mention was this issue of fourth amendment remedies is huge. i was listening to the nacdl

president theodore simon talk about like winning on you know, exclusionary rule issues which has almost been unheard of right, in my legal career unfortunately, right? i'll tell you quickly tell you the sad story of my last aclu case which is something peter goldberg in the nacdl participated and also the centers was very helpful. we got this great decision from the third circuit court of appeals holding when you attach a gps to a car you need a warrant based on probable cause. which is an invitation for an enbank decision and then what we got was a decision not even reaching the gps attachment fourth amendment question, but just holding that regardless right, the good faith exception to the exclusionary rule means that the police -- the evidence wasn't going to be suppressed. right? so here we are many years now after jones, and we have like very few court rulings on what seems to be a relatively and basic straightforward question which is whether you need a warrant to attach a gps device. i do think the other major

question is privacy in public. the alito opinion in jones give some suggestion that the fourth amendment gives protection to at least prolonged surveillance of indq because there's something about the aggregate of that information that is more invasive than the individual pieces. that's a huge question that comes to things like automatic license plate reader data being collected. i don't know if you sawym this but last week there was a story -- it got given by the oakland police department 4.2 million points of alpr data that that city had gathered through a public records act request. so if you want to go see what this stuff looks like apparently you can just do a public records act request for it. they didn't release the actual data base i think out of privacy concerns. but the point is there are these data bases that are sitting out there and if we don't have any greater protection from public

movements, merely because they happen in public, then that's going to be another area where the fourth amendment falls short. >> thanks. i want to turn back to you and ask very implicit in all of this and we all know under the fourth amendment doctrine and our foreign intelligence surveillance team there is a distinction between how we treat u.s. persons, u.s. citizens, u.s. legal permanent residents, and those present in the united states and how we treat non-u.s. persons, noncitizens lacking sufficient voluntary connections to the united states who are outside of the united states. so making that determination requires an ability to distinguish on two axis. on location and on identity. my question for you is how feasible is that as a technological matter? does the technology match the legal distinctions we have here? >> it's tough. the first thing i should say is catherine, check today's "washington post." you'll be horrified to see that

there is a program being disclosed that dhs is essentially going to contract with a third party license plate reader data base company to be able to search willy-nilly this stuff for the past five years of essentially all of americans' car travel with very protections. i encourage you to check that out. back to the question, determined both location and identity. it can be very hard to do this. and you can see this in some of the documents disclosed by the snowden 072 targeting documents. but before i get into that what i often do, and my passion lies in translating some of the technical reality to things that lawyers, media and regular people can understand. physical geography is something xd we deal with every day. how did you get here? maybe not the easiest place to get to in d.c. but it's a wonderful place to be when we do get here, right? network geography, if youv me to sort of take some artistic license there, sort of the topology or the geography of the

internet is much more different. it changes every second. and so, for example, sending a signal from your building to someone who may be in the building across the street may go like an extremely crazy way. it's not just going to like walk across the street so to speak or go through wires that are embedded across the street. it may leave the country. that may be the best way to get your information quickly and timely with whatever quality demands you have. if you're making a voice call, they want to make sure that's engineered very well so you don't have to turn into a gloried walkie talkie and say hi, how you doing? over. i'm doing okay, over. that's not how we want to interact in life.fá at least that's not how i want to interact in life. political and geographic borders so to speak don't map very well onto the network geography except for certain choke points like going across large bodies of water and stuff like that. you look at the 702 targeting procedures it sort of this

extremely strange way of giving guidance in how you do this stuff and analysts to the fisa court and stuff like that. they focus on determining if any lead of source information that they have in their vast quantities of data can sort of indicate someone is not on u.s. soil. and once they've made that determination, they use a bunch of ways to do this. for example did the communication come through a link that is facing an ocean where there's a bunch of foreign countries on the other side? that's one of the kind of things they do. unfortunately, as i justmtxáju out, that may be the network trying to route your stuff as well as you can. you may use a vpn product. lots of businesses and lawyers if you don't know what this is, please come talk to ñeq because you've got to use these things. a vpn essentially tunnels your traffic in a highly encryptedçó little pipe up through another server before it goes to the rest of the network. and those can very r ly be in other countries. i use a product that will allow me to exit from 100 plus countries for whatever reason. i do a lot of testing and stuff.

so you know trying to use these sort of technical analogs as proxies where someone is actually located is sort of a losing game. only then do they get to the identity portion. only then do they get to this person may be overseas but we've got to be sure they're not a u.s. person or do we have any evidence this is a non-u.s. person? and so, in those kinds of cases they essentially assume they could target someone unless they have some type of information that points to them being a u.s. person. so we don't know how this works. and, in fact, i would love to dofgl technical analyses of this stuff. getting back to catherine's sort of two point boom-boom kind of analysis. that here, you know, what you see in some of this stuff even when it gets down to domestic criminal law enforcement stuff. you see the fbi or somebody, you know seeking an order to put what's called a network exploitation device or a computer and internet protocol add dress verifier.

they never say what they're doing to install the software. and inevitably it involves social engineering trying to send you e-mails that you errantly click on because you think it's from a trusted friend. or poking through your browser to mund mine your entire stuff. it's a very, very strained way of doing this kind of stuff which points to the fact that this is how the network and digital technologies have evolved. we want them to do very specific outcome related things. we didn't design the internet to identify everyone and that's a very good thing. there are very powerful ways if you are careful to be anonymous on line. i'll stop there. >> can i add one thing? joe alluded to this. the rules for targeting and for minimization allow the government to assume that if it has no information about where the person is or what the nationality is that that person is a non-u.s. citizen overseas. so that is a default that the government has literally no information. that is a pretty big incentive

for the government not to do its due diligence to try to figure out where the person is. it also doesn't strike me necessarily that the lack of any information whatsoever is the equivalent of a reasonable belief that someone is a foreigner overseas which is what this statute requires. >> i should also real quick say there's some really strange pieces from a technical perspective of the minimization guidelines. for example, anything that is enciphered or reasonably believed to hold secret content you can keep indefinitely with no minimization whatsoever. 30% of the net right now is encrypted. it's going to be miami doing my best and a lot of us are doing our best to make sure that's 100. maybe not exactly 100 but we're getting as close as we can and the federal government is going to -- which is really interesting, u.s. federal government has a plan to essentially strongly encrypt all web services within two years. which is really cool to some of us. anyway, the point there is, you know, the fact that we're going to be able to collect encrypted information and do stuff with it

indefinitely means that, one, you eventually encompass most of the stuff we transacted on the internet. so this is sort of a relic of the past. it also means encryption is something that sort of rots it ages poorly. we find flaws and stuff regularly. the fact they can keep the stuff and just wait for some sort of flaw to allow them to get full access to the underlying communications is totally unacceptable. i'm hoping to be able to work constructively. we have some work on this i'm previewing right now. i hope we can work constructively to sort of amend those things to recognize that maybe ten years is better for that kind of stuff and maybe you shouldn't have a default to collect all the stuff. you need some other sort of information, some other lead or something to really -- maybe it's not probable cause. i don't know what it is but it's not just the fact that it's encrypted which is a relic when encryption really meant that you were doing something interesting, rather than what we do every day. >> you started out by talking about how at least it was 702

collection and other foreign intelligence programs. we've moved away from this idea of a target that's collected only based on finding a probable cause which still exists in ordinary law enforcement activities in the united states. and so we're also seeing this infiltration of foreign intelligence information being used in law enforcement for law enforcement purposes and in criminal cases. i'm hoping you can talk a little bit about what limits if any are in place and whether they're effective in dealing with this use of foreign intelligence information in criminal cases? >> i spoke earlier about the rulings of courts of appeals in the 1970s, that there was a foreign intelligence exception. and the very strict limits those courts put on that exception. and the reason for those limits was to make sure that the foreign intelligence exception wasn't used as an end run around the warrant requirement in ordinary criminal cases. one of the most important limits that the courts put on the exception was that the primary

purpose of collection has to be acquiring foreign intelligence. that limitation was incorporated into the fisa into the foreign intelligence surveillance act back in 1978. that limitation was jettisoned by congress in the patriot act and now foreign intelligence collection only has to be a significant purpose of the collection, which means that the primary purpose can be gathering evidence for a domestic criminal prosecution. on its face the statute provides some protection here in that it prohibits the government from deliberately targeting a particular known person in the united states. particular known u.s. person. because, of course, if the government were targeting a particular known u.s. person for surveillance for criminal prosecution purposes it would need a warrant. here's how that looks in practice. the government certifies to the fisa court would have no interest in any particular known

u.s. person, collects the data, then runs searches on the data using the names phone numbers and e-mail accounts of particular known u.s. persons. this is called backdoor searches. the nsa and the cia did approximately 2,000 of these searches in 2013. according to the privacy and civil liberties oversight board, the fbi does these searches routinely. routinely searches databases containing section 702 data when it investigates americans or even performs assessments. which means no factual basis for suspicion at all. so you know warrantless surveillance. warrantless foreign intelligence surveillance has absolutely become a domestic law enforcement tool. >> catherine, i don't know if you have anything to add or if you're seeing -- if this is a concern you're seeing in some of your cases as well, you've seen? >> i think that is a concern. i think we sort of in how we sketched this out previously we see two concerns, right? the large data collection

programs being data culled and being used in prosecutions and other sort of technological trends driving mass collection by local government agencies, as well because it's just not that accepted anymore. >> i want to get each of the panelists a chance to talk about what they see as the biggest challenges going toward. so i'm going to let them go down the line and do that. then i'm going to open it up to questions and remind our audience that you can e-mail questions to nacdlquestions@gmail.com. we will get through hopefully as many of them as possible, probably not all of them. >> i guess the biggest challenge i see, there's a ton of big challenges but the biggest challenge for my perspective who works for lawyers all the time is giving you information you can use to reason about some of these things. there's two challenges. one is knowing what they are doing which is difficult to know especially through

powerpoint decks and fist filings. those are not what they used to make decisions and help others do that but also, for example, just to pick one out off the top my head i'm working on right now, in terms of information sharing and domestic cybersecurity it's very hard to sort of teach lawyers how network operations and network security works. it's not impossible and we're going to do but it's the kind of thing where there's sets of ways of talking of information that we just have really built up over the years and we're going to need to invest in so to speak and have like little network security for lawyers or network security, not for dummies will for people and may not understand how this stuff works. we can do and say things like gee, do want to share that information? the stuff we used to defend ourselves, there's no liability associated, there's no ecpa stuff or whatever related to that in the sense that it doesn't contain that stuff that would prohibit you from sharing

this. it's very hard to sort of talk about that in a way that sort of bridges the technologist sort of lawyer gap and that's one of my big challenges. >> i see several challenges. i think one of the primary ones is convincing the public of the threat. i think a lot of people think i share all my information with google anyway. but there's a big difference in the stakes of sharing all your information with google and sharing all your information with the nsa. the potential for abuse when the government collects this much information on everyone is real. and i think it's only a matter of time before that potential starts to be realized in ways that people can see and can feel. i think it's part of american exceptionalism that people think that their government, our government would never use it national security powers against the people. although other governments do it all the time. and our own government did it for decades. another challenge is that

technology just moves so quickly and public opinion moves more slowly and the law even more slowly than that. so by the time the law catches up, it can be sort of de facto too late. so right now we now have an entire intelligence establishment whose central function is to maintain and use vast data bases of information gathered through mass surveillance. changing this is going to be, as it's not just going to be about changing the law 59 this point. this far into the game it's going to be about breaking down and redefining institutions. there are very powerful institutional forces arrayed against that kind of change. and we're seeing that now. >> i would say that we have an important case going on right now regarding -- i'm sorry we have an important debate going on regarding the usa freedom act and the scope of the authorities of the u.s. governmentr collect metadata information and to target communications of

people in the united states that are communicating with people overseas. what the scope of those authorities are, how oversight should be conducted, what amount of transparency should be required of the government and permitted of the companies that are impacted by that. but i also think that there's a broader debate that we've had trouble focusing on which relates to the scope of authorities that take place outside of the particular statutes that we have. and those are the ones that are most directly impacting trust in technology that is built by u.s. companies and our ability to sell the technology around the world. i mentioned before the concept of having new rules of the road. and the issues that i would flag are many of the ones that you see in the intelligence review group report. the initial messaging they came out of the administration focused on the fact that the programs that are authorized by 215 and 702 only relate to, you

know, the purpose of foreign intelligence collection is to focus on people who are not u.s. persons. and given that the vast majority of u.s. and the vast majority of companies are already selling the biggest part of their market share and certainly the future of their growth is around the world. you've seen the administration evolve some of its messaging. they've put out the document which talks about the rights of farm persons versus u.s. and yet, you see the government taking positions in litigation that i mentioned before with regard to the warrant for data that's stored outside the united states that goes to this issue of trust and impacts the ability of people around the world to

lay claim and protect their own privacy and to guard against access to government agencies. the recommendations intelligence review group report, -- you saw some movement by the administration there. michael daniel did a blog last year that talked about bias towards disclosing information about vulnerabilities. we still know little about the -- there was a lawsuit by the aclu how the policy works. that was blocked. he's for americans and people around the world, but also for the government to have more information about what this process is where in the government decisions are made,

which would give us more certainty about the weighinging of the different impacts that go along with different decisions like that and what factors would be used in determining when exceptions are made. potentially, there's a good story there that the administration has been, but they continue to be caught up in concerns about what level of disclosure they're willing tor make around the processes.ok >> for far too long the government executives specifically, ho engage in extremely aggressive surveillance programs with little public knowledge and with real harms as a result. after edward snowden revealed the 215 program, the americans telephone metta data listening to president obama say don't worry, it's just the meta data

and besides everyone approved it, really fell flat because there hadn't been public debate. the jury is still out on how that program is ultimately going to fair. it's a: r i think that's the broad thing been going on in secret for too damaging consequences. so to make this practical, it makes it6z hard to file appropriate suppression methods. i think the sting ray example is the -- have been used for at least a!u decade. and none the less, it's really only been in the last few years that people have been aware of how widespread this is criminal

defense bar has mader strides in filing appropriate suppression methods.aá i want to point out one useful resource, which is that the r of northern california published a report on the u.s. of sting rays, but it's geared towards criminal defense attorneys. here's how you can make a good guess about ñ whether the secret technology was used in your case right, then here are some things you can do if you want to try to get criminal discovery about this sort of technology. so you know i think there's sort of many pressure points. i think criminal defense attorneys have a role to play. i think also i'm optimistic and looking at frank from the aclu of virginia while i'm saying this, i'm optimistic about what can happen at the local level. the federal government may be largely bought into this stuff

but i think we've seen bills at the state level. virginia has been active there but seattle and tacoma both passed really innovative laws really saying if you want to apply our technology you have to come to the city council beforehand, right, and tell us about it because what happens now because federal grant programs make money available to local police departments d those particular bottle bills those two cities passed unfortunately have some serious flaws, but again, the aclu put out a model which is quite useful if people want to follow these ordnances. which are sort of knew neutral on the technology, but the city council is trying to assert some control. and you know i'm, i'm really broadly in favor of that because while i don't want to minimize

the fact that the government has legitimate national interest interests in certain areas, by the time the problem is that you know other cities can't even know what their police departments are doing. >> i just want to make one more point for optimism to echo what we just heard. i do think there are a fair number of really important decisions we've seen that have been challenged by the government and that the trend in the courts is clearly towards finding more things to be within the realm of privacies. when the worshack decision came out in 2010, i think there was a fair amount of expectation the government was going to challenge and to obtain information that was more than 180 days old without a warrant. we have not seen that happen and over time first google then followed by pretty much every

major provider of e-mail cloud based services in the country the demand has been made that the u.s. government produce warrants before contents will be turned over and that is effectively even though the statute the currently written. the department of justice has over time, conceded the point in testimony before congress that the 180-day rule was arbitrary, doesn't make sense, should be updated. we've had diftty getting that across the finish line in terms of cot fiing the change, but you know the jones case again was a principle i think that for many years was accepted that if the government was just observing things that were happening on the streets automating that through technology would not create additional concerns that would require warrant and the courts have held otherwise. then the riley decision that we heard about before holds not only very interesting points about cell phones themselves and

the contents of what they hold but i believe it's in justice roberts' part of the opinion, a reference to the notion that these devices are connected to the cloud and that that might create additional concerns but the phones themselves obviously hold so much more information than when the original doctrine was developed that my phone has 64 gigabyte of memory and probably exceeds some of the computers that might be in the room. the technology's changing. the courts, the law is clearly not keeping pace with the law of the technology, but there are i think positive trends in courts with regard to the development of 4th amendment law that we should be fairly happy about. >> i would agree with that. the only one point that i just want to make is that i think the reason why the government is pushing back harder against warshack and against where things are going with e-mail content is because the

government can get 95% of what it needs through meta data. >> great. i'd like to open it up for questions. i also encourage folks here to look at ppd 28, not whether or not it has real significance it's a real step forward in the government providing rights to noncitizens as well. there's a lot to be pessimistic about, but there's notes of optimism, too, so with that, i'd like to invite you up for questions. there's a microphone on each part of the room. this is not a chance to make speeches. please come forward and ask your questions. another reminder for those watching, you can send a question to nacdl questions.

>> thank you to all of you. catherine, i want to ask you you ticked off some of the local surveillance capacity that's out there. can you give us a more comprehensive list of what local law enforcement is able to do in terms of collecting data images and all the rest on folks? >> thanks, good to see you, too. why don't i start off o brainstorming session then other people can jump in. there's automatic license plate readers which can snap photographs of every pasing car. local law enforcement agencies can install these themselves, on patrol cars or on highway overpasses. there are repo men who attach these to their cars and go around snapping photographs. pictures get put in these databases, whether getting access to those at all. ariel surveillance is very interesting, although i think it is in some sense, overhyped what can be done now.