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. it had a lot of potential.

manned helicopters extremely expensive and not many local law enforcement agencies own them. drones are cheap and the little ones aren't that sophisticated. but what i think is really fascinating is the possibility of ariel surveillance the idea that you could fly something over a city. you could sort of see individuals walking around the streets and trap cars, so i think that's really fascinating. cell phone data can be obtained. this is location dayta stretching back for as long as the mobile phone carrier wants to keep it. text messages, browsing history. it can be records of phone calls people have dialed. everything you do on social media, this is really depressing. as i'm listening, just tryinging to be as comprehensive as possible. there are circumstances in which you can get access to day to on people's facebook or other accounts. we all know of people who share

more there than perhaps would be wise. there is the story in maine of the guy who was who posted his you know marijuana photographs on facebook, but didn't realize a friend of his friend was a cop and then got busted this way. that's not a great example, pu there's a lot of data. if your car has an inboard navigation system it may be possible, it's unclear, there's one interesting federal court decision to track you through that and maybe even automate the microphone if that's possible. and obviously there's surveillance cameras in a lot of different locations. what else is on the list? >> i'm going to be more forward thinking in the sense that a lot of this stuff you see on there, ariel surveillance platforms has previously existed, so the kind of fun technical toys they're putting on surveillance drones are pretty striking.

so things like -- you can think of as laser ranging, it can see through foilage because the leaves move and it can tell you what's behind things like leaves. there's synthetic anture radar, which can look through thin materials like your drapes and your blinds and stuff like that. talk about and there's like the kylo things, infrared. also spherical. >> len: lens flat forms. these can take pixel images on a regular basis of an area where it's looking. these are give you the able thety to basically see features from a pretty high vantage point at like you know foot to inch or few centimeter kinds of

resolutions in a highly time sensitive way. this stuff is, some of it is not available to people operating current types of ariel surveillance platforms but it's not going to be a lot of time before that's demanded for whatever reason to use these. >> i would add bio metrics and fingerprint scanners. there's also what can be done with this data, you have ariel surveillance, you have this videos, facial recognition technology. fingerprints can be captured from incredibly large distances because you can, the images are so precisely can blow them up and get your fingerprints so you can identify all these blurs on the video feed and then you know rocks. i don't know if anybody read about this, but the military, when it was withdrawing from villages in afghanistan, would leave rocks that had cameras in them that had 20-year batteries.

why can't i get one of those for my phone? just record continuously and feed it back. those are now at the border, so, you know, beware of rocks. it's just incredible. it's anything everything. >> and facial recognition is very very, very powerful. there's things you don't know about. side face and gait, how you walk, those two combinations together are extremely identifiable. unless you're wearing somethingú8hat obscures that and often there's mask laws a great paper on this talking about the kkk intimidating people meant there's a loft states that have laws saying you can't wear masks except halloween and other holidays. tomas mask your gait you have to have a ministry of silly walks

to make sure they can't profile your silly walk. >> i'm reading, taking questions from e-mail. we got one from ma who's asking about it being reducktive to compile all meta data as being equivalent to -- accessibleility of many systems used by carriers and other collectors huge range among health participants, creating meta dayta barrier. i don't know if you know what that is. i don't. but i think the point of the question is isn't there different degrees? isn't it a lot to say they're equivalent to personal identifying information? >> absolutely. that's not a very sorry it's not a very profound found statement. the, you can record meta data about anything. some is not going to be interesting or useful for what you want to use it for. the trick is the inference

capable of data we know about is extremely powerful. for example, a science paper about four weeks ago showed that with a large body of 30 million financial transactions it was sufficient to identify a single individual by observing four transactions of theirs and if in by trying to munlg it a little bit, they were able to protect individuals in that data set much more. it's js saying that stuff you need to protect it more robustly than you might think and certainly, the temperature of this room is the type of meta data, doesn't reveal a lot about who's in it specifically. it may sort of map on to how much fun we're having and other kinds of things. >> sir. >> mike bryce from the brennan center. >> please frame your comment in the form of a question.

>> i will. on the meta data versus content issue. you're correct. but the current state of the law draws this distinction between content and meta data. as we started to tease out, meta data can be really, really important if not more so than content. fyi to a group of supporters maybe there's not much there in terms of content, but you have an entire membership list. or given enough meta data, you don't really need!u content. content is d it requires sophistication to analyze. meta data's really easy. you can put it into an al gor rhythm and the more you have, it seems like content becomes less and less important. i think it was maik michael hayden that said we kill people based on meta data. whether the panel compels that

sort of distension or whether it's something we have gravted on to it and can reverse. >> well, as most people here probably know, the fourth amendment has been interpreted in different ways and at different times in our country's history and has really struggled to keep up with technology and has gennarilyuineerallyñi lag edged for a long time. in 1927, the supreme court ruled there's no fourth amendment right of privacy in a phone call because the government didn't have to intrude on your property in any way and it wasn'tçó until 1967 that the supreme court revisited this. privacy isn't just in your privacy. it can !ube, it fl lows the person, not the property and it can be in a phone call if you go into a phone booth and close the door. many doctrines have changed over time to match the technology and the challenge for you know, all

these brilliant minds here, this is something we'rev at the brennan center, is to try to figure out approaches to the fourth amendment going forward. these doctrines are many are going to go by the wayside. i truly believe based on the signals that theko third party doctrine will not last so what will replace it? that challenges to find an enduring vision of thep, fourth amendment that won't go by the wayside the nextqñ time there's a new technology. that's not easy to!6 should be possible and should incorporate meta data that do impinge on a reasonable expectation of privacy. >> it's much harder to protect meta data. a lot of that is used to protect information or something in the middle that if you remove that, we wouldn't be able to do those communications. there's that kind of an angle where we've gotten better, we're doing pretty good. i was a little pessimistic, but

we're doing pretty good. you get into things like shuffling, tour, an anonymous browsing tool where you just route through a bunch of ways and there are certain things you can't do. it's hard to have real time voice and video calling because it's just bouncing around the world. >> i don't think that the, i don't have a copy in front, but i don't think the word meta data is in the fourth amendment, and so, no but my point there is that theú8 concepts l%(:ñchange. i think even ther!ontinue to assemblages ofyñ jones case may implicate=avz foun?7 amendment over time.;ñ)x)=j 1qgzhcpmñ3aóñ we also havehpftd3 people0zwa[m?

court's going to overrule the cases. i think it will attempt to limit them and one way is by making this content, noncontent distension. >> thank you. >> yes, i'm going to read a couple of these. i know time is winding up. i don't know if you want to take a few questions and then go back to the panel. >> sure. >> one is from robert ger. i may have said that wrong. he said you mentioned the use of

internet geography is a challenge. what other aspects like ad networks would further undermine the aspects of users. is itqr'g shared for domestic cases. a question from will carson -- have on sub peepoenas, et cetera and the last question i think was directed at catherine, but she talked about having raised the concern is it accurate that the zone still exists and the protections are not granted to americans on their technological devices. i'm assuming she means at border and enter tri points and she adds yes further efforts being made in these areas. >> why don't i take those three because that was a lot. >> i'll just punt and say, send me an e-mail, we could have a phone call. there's a lot of things that people don't understand or have intuitive feelings for where the

technical reality doesn't match well. so for example, people tend to think encryption is about hiding things, but it's also about making sure you can't hide things. you can also reach our website https with the s being secured. we have engineered that, it's extremely hard to exploit anyone. maybe we're not so much of a destination, if you do that, we have one little advertiser, this is something i've been working op, we pull in a third party element that is not encrypted, that's an avenue for someone to inject malicious software. unfortunately, i have a long list of things i could talk about. it's probably not a good use of our time. maybe i should write something to that. send me an e-mail and we can have a longer conversation. >> on the constitution free zone question. i want to separate out two

concepts. there is this idea that the government has extraordinary powers. not only at the border, but some distance inland in order to exercise its border authority. there is a separate government policy for customs and border protections in which the government asserts that at ports of entry themselves at the border, it can search people's cell phones and laptops and other devices with no suspicion whatsoever whatsoever. but i have not heard of that particularly authority being aplied outside of a purported entry itself. there's a caveat they will sometimes take your laptop and the border, then search it. sir? >> rob from aclu of virginia. assuming that the supreme court largely leaves the third party

doctrine in place, it seems like it would be necessary to amend the state institutions. is anyone up here aware of language that would in effect overrule the third party doctrine in a state constitution and how could you do that? >> i'm not aware of any attempt to do that. i think you know probably i have to confess, i mean sort of my focus on a lot of these issues are national and i don't think a state obviously a state constitution's not going to protect people from the federal governmentç surveillance and picking up meta data.-99/ so but it is interesting. at the state level, we ox seeing this legislation and license plate leaders and all of that. i'm not aware of any efforts to amend state constitutions. i suppose it's jñst easier to

get legislation than a constitutional amendment at the state level, so that's where the efforts have been put. >> with regard to that idea of pursuing three state bills rq are seeing a number of states where there are proposes that say somethingfá like obviously they can't control federal authorities, but they will say police agencies that are part of the state or local governments of this state cannot just seek x.3arpto obtain the contents communications without a warrant. so, you could, i think in theory, define with regard to the authorities of the stateç0@nd local police agencies their ability to demand various types of data with0l warrants and that might be -- >> and just+uz clarify one thing. i don't think the supreme court is going to say, okay no more third party doctrine. you have absolute reasonable expectation of privacy in everything you share with everyone. i don't think that's what's going to happen. i think we have very, very strong signals.

not just from justice sotomayor's clearance, but from riley whenz talking about the things that made a cell phone so q@uprivate. the information we put into apps. information that is necessarily shared with third parties and clearly, there was an implicit recognition that that privacy was there despite having shared this information with third parties, so i don't see how thecor that doctrine can continue to exist in its current form. i shouldn't say it's current form but the fisa court's interpretation of it. >> i love what's3witájjt on at the state level when itx÷ comes to privacy.s virginia has beenr of that. we've been reading about your work on sting rays for example. i think state constitutions are some of the most exciting plays to go. idv be happy to work with you or talk to you about that offline. i don'tçó actually think a constitution doesn't mention the

third party doctrine and it's awkward to figure out how to reject itsso3 application in wording. but it's very interesting. a lot of stateñ supreme courts have rej third party doctrine. could build off of. i really like this because i think it's an alternative view. it can create a workable world to the federal regime. it may not address the national security issues,úit could address a lot of the local law enforcement issues. i think showing that you can have a an/v alternative system, what we should acknowledge are legitimate law enforcement needs while safeguards civil liberties is really useful and so, i've been very excited by what i've seen comes out of the state level and i think it's doable. >> last question. to jim.-] dual question. >> and one is his words from jim too lazy to stand upjf harper who

is asking+c+ñé@e1 panel to prognosticate on a likely outcome and significance of the city of los angeles versus pa tell, making hotel records available to law enforcement seizure on demand. and the last question, from jonathan,e1 do you see the normative inquiry playing the role ing83añ changing the third party doctrine? what types of compromise can be made that prevents law enforcement from conducting investigations?("dfké >> so, are you asking for speculation on the outcome of that case? >> going to have to send another e-mail. >> yeah.k let's see. it's hotel records, so it's a littlee'sq tricky. it's not it's different from a situation like phone records where you 4ñc÷)0 draw very direct inferences about associations g#very very pick for the case that should"p$:ìáhp &hc% eventually go up to the supreme court on the third party records doctrine.

i do&ùyknow. honestly, i don't know. i couldn't predict the outcome of that. sorry.q >> does anyone want to take the implications of rejection of the third party doctrine?d ji >> it's hard toé get away from normative implications of all of this. i think the idea there's a normative element to this isñi hard to sustain andht3w that's just all lpdown. >> i just, i think part of the question asked about whether or not it's possible to both modify or reject the third party doctrine, also retain respect for law enforcement needs.t( i just want, i think everyone here knows i think the government doesn't get access to infozmation, it just means the government needs a warrant based on the information based on the

probable cause finding. >> the bank records, we have separate regulatory operations with regard to money:iañ laundering so that might be a place order to prevent money laundering, that you do have to have different think the overall pointb. is that we need to dig deeper with regard to certain types of meta data and make decisions about whether or not the data itself or aggregation of that data or combination with other types create concerns that we would want to elevate the protections of those surrounding them. but i don't think it's going to be a cut and dry formula you'll use. >> with that i want to thank the outstanding panel for a really interesting conversation and for all of you being here as welór >> conclude tonight#mltonight with

ryp' zinke. hed service and his new role as an elected official. in this portion, he compares his experience as a s.e.a.l. to his life this congress. >> i kind of laugh sometimes being a congressman sometimes is more difficult than being a s.e.a.l.v and that you,xd as a s.e.a.l., you can watch things get done. you can engage. you have a terrific team around you. normally, you had the resources to win and you can watch progress being made.nb on the hill, on the current you know polarization, there's progress being made. it is fixable. absolutely fixable, but progress is not as rapid as what you would like. you've got to make sure you exercise some cience. and some, it's just political

rhetoric. some people don't want the facts. they don't care about the facts. what they care about is an agenda and i never look through life. through a read or a blue lens. it's always been red, white and blu as a former s.e.a.l. commander i never asked the political affiliation of the folks around me. what i cared about was how good they were. were they skilled, committed, did they have the right training and did they haveó[ the right gut. do what was necessary. >> watch cspan's congressional freshman profiles tonight with ryan zinke at 9:00 p.m. eastern.ñ also at the american university conference on the fourth amendment and the digital age, a panel of legal analysts

discuss government surveillance and data gathering technologies in the"n digital age. they examine the role of congress, the courts and administration and enacting rules to protect consumer privacy. this is about an hour and 40 minutes. >>ltcsp'k you for watching us online. i am the senior privacy and national security council with the national association of criminal defensehtó(u+q)s and if you missededht it and i'm sure you haven't, but if you're watching online and you have questions,v you can e-mail them to nacdl questions and we will do our best to get them asked and for those twoet tweeting. we have been tweeting with fourth amendment. i want to introduce the mod rart of our next panel who is jerry morris. a sole prakctitioner in." austin, texas who has practiced for 38 years. he is the president-elect of an acdl. and also currently our committee co-chair.d in addition to the fourth

amendment work he does he also works on indigent defense reform andurrentlyi-ñ working in travis county texas in an effort to strengthen the system there. so, he'll be monitoring the panel, sopdpqpáq elp me welcome him back to the podium. >> thank you. and i want to once again thank american university.dé d forñi dedicate inging the resources and the taf and all that goes into having us here to put on this symposium. i have asked around and am quite ┐99q3w that this is the most comprehensive symposium on this topic that's ever been held. it'k both rewarding and concerning because this is notr n y stuff and the discussion needs to move w3forward. the panel, the topic of this

panel is it's a good sedge way from the last panel. we talked in the last panel about what is thexd tonl out there. for surveillance, data content, location.&ñ and what are the techniquesg are able to the government and'c the devices technology, this rpm panel is going to talk about drnç!q how do we challenge the use of these techniques and devices in like the last moderator, i'm gois7w to not give long introductions because you have the biographies in your materials. but our panelists are hany pecori freedom frontier foundation. most of you are familiar with that organization and what they do. they're on the cutting edge of these issues. also, if you look at the materials you were given when you came in, you'll see a copy of the champion, this month eesñr's

issue, there's an article in here by mr. pecori having to do with that decision. jim harper senior fellow, cato institute and 'kforin kerr, from george washington university law school. panel, i posed three areas of e1 discussion. these are theok panels are not limited to these, but give you an idea of where we're $cwgoing. what is the current law"n regarding these issues and where do you think it's going lookingñ at the decisions that have come down today.ko corollary of that is does the current analysis under the

fourth amendment reasonable expectation of privacy does it really fit this subject matter or is there another8fx way to look at it perhaps? another topic is how do we find out in our cases whether this technology has been used. you've heard from the last panel, efforts have been made by law enforcement to basically keep it secret and how dovjy we determine that it has been used. and for instance in the instance of the sting ray device, even after it was discovered it was=ñ being used, law enforcement made an effort to keep the details of how the device workcs secret. so how do you discover how these devices are used, whethertcjkvvfor instance they involve a trespass that would evoke the opinion in jones, are they attached to something, do they grab something out of the air, how do they work? and then third, what do we do

with this stuff? how do we litigate it. how do we specifically raise these issues in court. with that,lp i willc÷ first discussion to professor kerr. >>koko oh, well, if i'd like for you to go first and jimfá follow up because yours is -- >> thank you. >> thank you for the invitation to be here this morning. and especially accommodating my change in panel. took memy a little while to realize when passover was scheduled forb(ev this year. i was like, oops, that's a problem. soqu i wanteded to talk about the situation for the development of fourthsd digital age. how it looks right now in some of the major fault lines and issues that you're seeing. from a defense attorney's standpoint, i think there's good news and bad news. good news is courts are being

very#u the fourth amendment as:o it a applies to new technologies. they're expanding institutional rights in a lot of surprising ways. think of the riley decision recently, the supreme court's decision on searching a cell phone. the unanimous decision in rejecting afá traditional fourth amendment ruleld kind of a surprising development a lot of ways,ipmc especially with its u namty. so, from a rights standpoint, very good news. there are a lot of creative arguments that defense9 lawyers should be and can be making that things violate the fourth amendment that a few years ago, probably would have9&í2uju+k very hard arguments to make are now looking easier and easier. then the downside is just as court is cutting away on the scope of the ñrremedy. thatxd matters most to defense toerp that matters most, saying no

exclusionary rule applies when the court, when the officer relied on then existing)vvlaw. full disclosure, you can blame me.ñr i argued the case for davs, then i lost. it pains me that i have to keep talking about it because i knew this was going to happen and t(oh, well, two votes. what can you do. so i think these trends are related, the court as the courts move away from the rule, they feelht more comfortable creating broad rules because no one's news from a defense attorney's standpoint is the fourth amendment is expanding and the bad news is your client is probably not going to benefit much from it. there are arguments to be made.q-rc we can talk about this. let me focus on thez jf rights standpoint. from what is is a search or seizure, great casesfx that you should be using if you're a defense attorney where you should be relying z the

jones majority opinion thel÷ pas trespass case. nobody quite knows /h @r(t&háhp &hc% trespass theory is in jones. it's really counterintuitive that placing a device on the car is isht -- it's not going into the car. it's aokyñ fix on the car. this week, we saw a decision in grady in north carolina that also applies to ans7 ankle and they=ñ: did that without argument. just reversed on that ground. there's the trespass argument, the jones concurring opinions,xd byk suggest inging that monitoring over time could be a search even though individual pieces of collection of evidence are not d5 searches. that's another thing you should be using when you have digital evidence collection because a lot of qtimes digital evidence collection is part of a broader

effort to collect evidence. that can be argued toa. create axd mosaic which constitutes a search, which even though it might not seem like a search. for fourth amendment reasonableness, we have the riley case. and you should be pushing for riley moments in your cases. just as the supreme court said in riley that the tra$xditional fourth amendment rule for search incident just does not apply the con context. that's the riley moment where the court says we need a new rule and that opens the door for new opportunities.>9m and some court courts have already gone in this direction and so, from a right standpoint, there's a lot of argumentsmy that can be made as to what's a search, what's reasonable. pushing against the doctrine as its7 exists now with riley at your back and jones at your back and

other cases that are suggesting that the courts are open to do lots of creative things, so i'll emphasize that part and then not talk about the@b- exclusionary part. oh, i'm out of time. i should move on to someone else. >> i will probably use the same internal clock to figure out when i'm out of time.mga and i may not be the most helpful to defense counsel with their cases because i'm sort of a one note johnny. i've never tried a case or defended a case but i'm a one note on how to argue your fourth amendmentçó issues.t o you want to the privacy because that's what everybody understands. i'm always intrigued to find that many lawyers believe the reasonable expectation of is a

of the defendant as to their privacy. the objective part of the reasonable expectation privacy is actually just a subject. if statement on the part of the judge or judges who issue a decision. usually, or as often as not, i should say in accuracy it comes to the wrong result and i think that a well done study of people's expectations, that is people out in the land not in this room, with regard to their telephone dialing information would find smith versus maryland is is wrong. most people who aren't lawyers

who don't know about all this stuff would say, heck, no you can't see the content of my phone bill. that's stuff that i have. it's also not a product of the cat's decision. it's a product of a solo concurrence in cats. justice harlin was doing his very best to capture these difficult problems when he stated what has now become what's called the cats test. but cats actually went down on the fact that the defendant had entered into a phone booth and there, concealed the sound of his voice from other people. so in closing himself in a miniature room of sorts, prevented the information from reaching others and the government accessing it through use of a bug was unreasonable. the majority read your cases, folks, the majority in cats did

not decide based on what has now become the cats test reasonable expectation of privacy. my argument is obviously use it but also argue for administering the fourth amendment the way you would every other law, so you go lew it like a student would through a stat statutory law and the right to be against the unreasonable searches and seizures, you go through the major elements of that. was there a seizeure? a search? was the thing seized or searched protecteded by the fourth amendment? then you get to the question of whether it was reasonable. the seizure, so, seizure and search are often collapsed together and that makes it hard to work with sometimes. but there are cases where there are seizures that are not in part of, not part of a search and there are cases where there are searches not part of a seizure, but jones is a good seizure case because the court

found, now use the word sernl, but what it was talking about was the invasion of a property right. they'll send you off on a tangent because it treats the interest as the same thing, but property rights go beyond the possession of a thing, but use, administration, benefitting from the profits of having a thing, these are all within the realm of property rights according to that old bundle of sticks we learned about in law school and attaching a device two a car converts the car to the purposes of an outsider, so attach inging a gps device to a car very much is an invasion of a property rig, just not the possessory right. his car was used by somebody else, which is a violation of that right to exclude. so, watch for seizeures and

often, they are mixed because the law enforcement officer will pick up a piece of paper and look at the under side. this is the seizure, this is the search. there are one or two cases=hxd

you might administer a search by sort of going to the subjective intention of law enforcement. were they really, really, really looking very hard at a certain thing, you could call that a search, but being more granular and even more scientific about taking things from imperceptible to perceptible is when you get to sernl. is the thing third question is this thing seized or searched protected by the fourth amendment? that's pretty easily administered houses paper, things people carry, cars.ñi et set rachlt thencetera, thep the question was it or was it not reasonable. this is where the judging happens. there's no test for the fourth amendment that gets away from it, but at least then, the question is is focused in the right placeñi which is whether r not the government was being reasonable. examines whether the individual

was being reasonable and that's not what the terms of the fourth amendment called for. tozvwnk apply this sort of statutory style of working with the fourth amendment, you have to understand how the technologies work. let mezvy,ó[ walk you through a few technologies that we've encountered over time and i'll paper is a very handyb factor for cellulose that's lightweight. it has a terrific sort of absorbency of i think. and we use paper to put high row glifs into a fixed form. letters, numbers and in the right order, these convey our thoughts, feelings emotions et ccetera, et cetera. when .bbtfolded and it concealed and concealed in an envelope,

the o pasty of paper makes those thoughts, feelings, emotions, imperceptible to others that have not accessed the inside of the mail. so, and what we find is that when we use these physical characteristics of paper to conceal information the information gets fourth amendment protection, so an ex parte jackson in 1877 whichzv discussed interestingly, the constitutional difs reince between sealed and open mail like newspapers and fliers the court said letters and sealed packages of this kind in the mail are as fully guarded from examination except as to their form and weight, as if they were retained by the parties forwarding them in their own domiciles. the constitutional guarantee extends to theirfá papers thus closed against inspection where ever they may be, so, using the o pasty of paper to conceal information gives you

constitutional protection. as a matter ofb. physics which is backed by law. fast forward from 1877 to 1929, and the homestead decision. homestead majority got+ it wrong, but the decents were the really interesting ones. bran dice is neat and all because he said there's this wonderful right to be let t=alone, which is maybe too broadc and hard to administer. look to justice butler's decent. he argued in fascinating language, the contracts between telephone companies and usersñr contemplate the private use of the a)adp!

wire here in audibly and invisibly to anyone. this is immediately being translated back into sound waves to be broadcast out to you, but on this wire the things i'm saying are inaudible and invisible. imperceptible to someone coming along the wire. if it was a mile long, somebody spying this wire would not be able to see or hear what was happening on the wire. when they access it, they are, they are accessing information that is mine. this communication on this wire is mine. if the wire is mine or if i've renteded this wire. so it's an invasion of a property right to take this and make a copy of it for yourself.

the internet works in much the same way. taking analog signals, the appearance of my face, the sound of my voice, the things i've typed, the things i say into a phone and converting them not into analog electrical signals, but digital broken up into packets and transferred out across the internet. when i hand over this information to an isp, it's subject to contractual protections, so that if you want to talk about the signal itself, the communications as a unit of property, it's essentially mine, but i've given an easement in the information to the isp and i have obligated the isp through at least implied contract to make sure that information is maintained in confidence across the internet. to its destination so there's as good an argument in the internet context as there is in the phone context that the

communication belongs to the parties among whom it travels. obviously, the details in any circumstance are you've got to navigate the very, very, the very fact specific instances, but this is a way to administer the fourth amendment that's sound, that doesn't rely on the subjective whims of judges in a given situation. and over time, could restore the strength of the fourth amendment applying it on its terms and connist sent with precedent to new circumstances. i hope i've been interesting and maybe informative. thank you. >> thanks so much for having me. so i want to maybe take a step back and look a little bit at how the current federal policies are really impacting how these technologies are used by state local law enforcement. and how that affects the barriers to really addressing

some of these technologies in court. so, right now, we have sort of a bizarre tension happening at a federal level. on one hand we are completely unable to keep pace with the technology development. congress is legislating not a lot in this area as they are not a lot in a lot of areas. and when we look at some of the issues that have arisen in recent months, it involves technology that is decades old. so for example, in the previous panel, we discussed sort of location tracking. and sting rays and we're having a debate right now over those text message technologies, but they were invented decades ago and i'm pretty sure there are other technologies that won't don't know about yet and haven't had an opportunity to have a debate about. at the same time that we have sort of this complete inability at a federal level to put in

place privacy protections or civil liberties protections regarding the use of these technologies, the government is awfully good at getting these out into the hands of state and local law enforcement. so we know that the department of justice and homeland security have taken grant programs. these programs fund the purchase of surveillance technologies by state and local law enforcement agencies and often these grants go out with relatively little strings attached. there's not really a sufficient oversight and sufficient action by the federal government to make sure these technologies are used responsibly. so, saying all that, what are some of the policy changes that we can push for that will facilitate our ability to challenge some of the uses of these technologies in courts and will make sure that defense attorneys and the public are kind of armed with the information they need to have a debate on what the appropriate use of location tracking or radar technology et cetera is.

so i sort of have, four points in particular. the first is i think that we need a federal policy that prohibits the federal government from asking states and localities to deliberately hide the use of technology. this has come up in a lot of different contexts in the stingray dirt boxes through foia that the aclu, we found out that they were asking states and localities not to disclose technology. and they were asking state and local law enforcement to refer to this as information from a confidential source so the judges wouldn't have an idea that was how the information was obtained and they had asked prosecutors to dismiss cases where the defense attorneys were seeking to challenge the use of devices. and we've seen cases where a

challenge is debated by the courts they offer an angtd a -- attractive plea deal to avoid court oversight over the technologies. so i this attacking this problem requires at a federal level, less prohibition on stopping states and localityies from disclosing this information to the courts. the second piece of this is obviously stopping information from going to judges about uses of these devices. depending on the context there are cases where judges are being asked for either a search warrant or a penn trap order before law enforcement uses these devices but unfortunately there are cases where judges don't know what they are signing and it sounds kind of shocking, but for example in tacoma, washington judges sign over 170 orders to use stingrays dirt

boxes, they didn't have any idea that the warrant didn't say this is what we are using. here is the device this is how it works and here is the number of people that are impact and here is what we are doing with the extraneous information we are collecting. and so allowing the judges to do their job has to be a piece of the federal policies. and the third is i talked briefly about the amount of funding that is going from the federal governments to states and localities to purchase the surveillance devices and it has sort of become a blank check. and for whatever reason the federal government is not good at attaching strings to that money and so i think there needs to be more congressional involvement to say if we're going to give out money to use or purchase a particular device, that state or locality has to have serve policies in rules and abide by certain standards. other wise it leaves us in a way

that doesn't ensure we are using this responsibly. and the last piece is the federal government has been unable to adopt consistent policies in this area with regard to technology. we're not seeing public guidance from the department of justice saying look if law enforcement wants to use a particular technology they need a warrant. here are the exceptions to warrants and the situations where there can be no exception. and that is sort of leaving states and localities without a firm sense of what either best practices are or minimum standards should be. so to really address this problem there needs to be a push at a federal level and from congress to put in place consistent standards that the public is wear of and that attorneys are aware of so when they are cob fronting -- confronting the issues in court, they have a sense of what the rules of the road are. so having said all of that and the things that don't exist

what is congress doing? and i guess if i was you, that is where i would say, sorry, i ran out of time. i think the answer is clearly not enough. there have been recent efforts by members of congress to do more oversight in this area but we can't have a system where members of congress only get up set about something when they read about it in a newspaper. we haven't created a system where congress is demanding notification prior to technology being deployed and creating a structure where we have debate before there is a problem and this is part of a mindset where there is use the technology now and think about the consequences later and put in the privacy infrastructure after the fact. and that is the piece that congress hasn't attacked, of how do we create an infrastructure to debate these things before

they are huge problems. i think one area congress has taken a stab at addressing is more in the area of national security and how surveillance technology is used in the national security context. that is a result of deadlines with the national security that force a national debate and without the deadlines and a clear bush from states and localities practitioners and others to proactively address the problems, i think we'll continuously be in a state where the technology has developed and we're always about 10 or 15 steps behind where we should be in terms of the legislation on the federal policies. >> so that is a good segway to what i wanted to talk about is what can praktd issers do in their particular criminal cases and what can the folks do at the state level, either working through state representatives or working through the state nacdl

affiliate because the answer is i think there is a lot that can be done. so while i don't hold out much hope of congress to do anything about anything i have a lot of opt mix about what is happening in discrete criminal cases and at the state level. so we've heard a lot of very general discussion about the proliferation of the technology and how they have trickled down and how judges have been deceived and hidden and i think what is important for defense practitioners and a few years ago if you made these claims in a specific criminal case the judge is going to laugh you out of the courthouse and say i won't take you seriously. but we have amassed just straight-up evidence that shows this is happening and it is happening at a systemic level across the country and you mentioned tacoma. i mean it is not just tacoma. and in baltimore, they threw out

a case because the officer got up -- they threw out evidence in a criminal case about a stingray device when the officer answered questions about the use of the device and the judge said you don't have that with me and he said i have a nondisclosure agreement and they'll said we'll have a concession on that. this happened in a transcript sitting on my computer on a criminal case a couple -- not a couple, but the next state over. so that is another example. in florida, there -- "the washington post" ran a story about a guy looking at a four-year minimum charge on a robbery case involving a use of a bb gun to rob a marijuana

dealer about $100 worth of weed and they use the string ray to get the guy and they ordered to be disclosed and the government cut the guy a probation deal. and when the government can seize on a suppression motion or offer a guy looking at a four year felony term four months of probation, that is a win for that client and for defense lawyers that is the first priority. but we can use those vict yoirs in those specific cases even if though don't result in the evidence being disclosed, that is evidence to show judge we are not crazy here. this is not people who wear tinfoil hats telling you this is a problem, this is a documented problem. in tacoma and we're talking about specifically about stingrays but this applies in other contexts. in tacoma the stingrays, the mz

catchers, the judged had a -- the judges had a closed-door talk with police officers and they said, okay, judge we'll change the way we do things. but it is on the defense bar to make hell about this in their specific cases and to look for case where's they think this is at play. so if you have a case where there is a search warrant affidavit or wire tap application that says a source revealed your client's location you have to ask questions like is that source a human a computer or some other thing. if you have a case that involves the government retaining lots of digital data that they've seized from a computer doing forensic imaging or if you've handled a child pornography case you have to ask question, how long have they held on to the data and

what are they doing with it and what are they doing with it when the investigation is over and are they deleting it and courts are starting to grapple with this and that is important both at the federal and state level. and once we can make these discovery questions we can make the level arguments. and when it comes to the legal orgs and to talk what -- arguments and to talk about what orin talked about with the reilly motion but what is it about reilly that is sig -- significant, and what is important about it, what is the reilly moment, is two separate things. the first thing is the court did not feel bound to apply an earlier decision that involved a very different item. so background, in reilly, it was whether they could search the data on the cell phone and the government in np argument in a

case in the 1970, you can search a pack of cigarettes because that is a container and you can search any container found upon the arrestee or in any vicinity and the government argued and including my home court the california supreme court agreed a cell phone is container just like the pack of cigarettes the court in robinson did not distinguish the container or what was in it or the container and thus the search was okay. and reilly rejects that and said saying these two things are similar and one of the best lines in the opinion is like saying a horse -- a ride on a horse isd< like a rocket ship to the moon. they both get you from pointhw% a to point b but nothing else justifies lumping them together. and that is the point we have to make when we come into court and we say the judge ruled on this 40 years ago and that is the

answer here and it is like no that is not the answer here. this is different. and the second reilly moment i think is the court's -- and this is the court's own language theresy quantity tateive -- quantity tafive and qualify tafive question on whether that can be searched for arrest. and it goes through that difference and it is that a phone stores data that reveal about a person so a phone will have text messages and e-mails and pictures and apps and all sorts of stuff on it and when you look at all of that that reveals more about a person. and the second thing was if you look at one piece of data on the phone, there is so much that that reveals more about a person. so you may have one picture of your kid in your wallet, but your cell phone will have a

thousand pictures on it and what you ate for dinner and who you hang out with and that is the constitution analysis. and the data on the phone goes back before the phone was even purchased. and you buy a new cell phone and in five minutes you set it up and you have ten years worth of e-mail all over again. and the fourth point is that phones are so pervasive in society today and all of these things together triggered a different constitutional analysis that was not dependent on what the court said 40 years ago. that approach can work in other contexts and that approach works when you talk about cell phone location information and talking about a forensic image of the hard drive that is seized at a crime scene and that approach can apply to all sorts of metadata and i think we have to make those arguments and make them under the fourth ameantment and under your -- amendment and under the state constitutional

reasons because you might end up winning them under that and that is the reilly moment. and causing hell making discovery requests and showing that we know what is going on, or at least we think we know what is going on oar scratched the surface and tieing that to this -- i love this phrase you came up with orin, this reilly moment, is that where we can take the fourth amendment and state law protections. >> all right. questions? >> come up to the microphone there, please. >> you've done a good job of distinguishing between the fruits search and the source -- the source of a search. and rule 16 talks about the fruits of a search. and so i'm curious about a couple of things in the context of federal criminal practice.

when i think about confidential informants, we understand that the source of this a confidential informant and we need to get information about that confidential informant and then asking about the reliability about asking the device when it is a human or not a much -- or machine and when it is a brady obligation and from the government and what was used and whether the device was tested for liability and whether it was operated by somebody who is trained in using these devices. >> so i have to give you a caveat. the caveat is i'm from california and that means i practice in the ninth circuit. so when people ask me do you have good case law? i have good case law. so it is ninth circuit, so they

have a couple of opinions. they don't talk about electronic surveillance but they talk about what you exactly talked about. the reliability of a source of information and in this case, there is a case of u.s. v thomas a case involving a dog. a canine-sniffing dog and in that case the court said under rule 16 not reilly but the evidence under a dog is discoverable because it is relevant to raising a suppression motion, right. and so i've argued that that approach -- like if it applied to the dog it applied to the technology. the dog tells you about the presence of contraband or not and the government argued that the dog-sniff cases support their use of technology that only looks for contraband,

electronic files. like programs able to search a computer files hash image to des i'ver whether it is a known image of child pornography. so to the extent that dog evidence is discoverable i would say that any electronic -- any information about the reliability of electronic evidence is discoverable under the same thing. but the key is you have to pin it to i want to raise a suppression motion. so it is not discoverable for the sake of discoverable but it is discoverable because i need information about the reliability to make a suppression motion because i will move to suppress under the fourth amendment because of a warrant, but because i think there is a franks issue and they weren't completely forth right in the wire tap and under the basis that that was correct. and you can make that argument. and you mentioned rule 16.

and of course, again in state court, if your state practice is broader than rule 16 and a lot of states have broader rules than rule 16 that is something you want to hinge your argument on to. >> anyone else want to address that question? yes, sir? >> good morning. steve mercer with the maryland public defender. mr. harper, under your framework for the fourth amendment does it protect controlling personal identifying information and to the anonymous? >> well, it depends on the circumstances. if you have taken steps to protect personal identifying information, absolutely yes. most of us share a lot of personal identifying information. by entering a room, we share the appearance of our face. by posting on a public forum, we

share identifiers when we interact with websites, we share an ip addresswçjr7 an ideúcçdáá and whether or not the person tried to restrain access to thav information from others. this is a really interest ging dimension to the license plate tracking that we now know is going on so comprehensively and that is the license plate. i'm pleasantlym]gñ surprised by the emergence of this issue because i wrote something like 14 years ago, i testified in congress about the privacy invasive aspects of requiring driver -- or license plates on cars. nobody at the time i think -- what is this idiot talking

about. but now we realize that requiring a license plate on a car, because of the technology that has come along, is equivalent to requiring an individual to wear a name tag to walk in the mall, for example. there are some policy differents between the two. but somewhere someone, hopefully in a court will reopen the question whether putting licenses on cars might be a first amendment problem because it prevents you prafling to a pro -- traveling to a protest or the seat of government anonymous anonymously. the changes are multi-dimensional. but certainly identifying information, it is a category of general information. it is important if people want to protect their privacy to withhold identifiers. and if they had withheld identifiers, factually keeping them from others they should be protected like all other

information. >> let's take a question from one of our online viewers and then i'll get to one in a moment. >> just a reminder if you are watching this live stream and you have a question, you can sent questions to nacdl at gmail.com and this iswqxñ from robert greer but he said[éq÷uskd forbeså/ in 4s+h2013 reported that traditional mail was being tracked and address information was been scanned collected and has this2[fñ been used in any cases? >> i mean, i'm sure it has been used in cases, because now all mail cover information is coming from this broader program. so the way -- at least according to the 2013 story, the way mail covers are working, instead of it being an individual request that an individual address, mail -- outside of the mail is going to be photographed,

everything is photographed and then just assembled later on if there is say mail cover. my understanding is this is just the standard way mail covers are now executed. >> i think that is right. i want to add one thing. that is correct as far as i know in terms of the mail cover specifically. but what is interesting about that and it shows, and this was talked about in the first personal, when we talk about the way the nsa was collecting evidence in large scale, you see this trickle down to other forward agencies and into state law enforcement agencies. so it starts with national mail and then license plate readers and then the dea this was broken in january, the dea had a call records data base of calls that people in the united states placed to iran and that was because according to the dea, iran has a nexus to drug

trafficking and while maybe that is true we can all think of other countries that probably have a more significant nexus to drug trafficking like our neighbors to the south and you see how this trickles down. and then you see locally collecting license plates or biometrics or dna. and this is the world we live in in terms of how evidence is gathered and used to investigate and prosecute cases and that is why it is important for defense lawyers to not only be familiar not just the broad contours of this stuff but the specific contours of this and what is happening in their locality and in their state and what is happening with the police department collecting information that they live down the street from and start to think of ways to inform the judges about what is going on in the specific localities that are at issue in their cases. >> let me say that in april nacdl will issue a report on the

use of mail cover information. reportedly and approved by our board in april and linked to the website thereafter and talk about some of the uses of that data and the accelerated usage of it in the last few years. yes, sir. >> this is along the lines of the earlier question asking about the reliability of information that is being used in federal cases. one thing that i've been really trying to obtain lately is the fbi's cart manual, computer analysis response team. i think it would be tremendously useful in cross-examining fbi agents when they are on the stand but at this point i've not been able to successfully track it down. so i'm wondering if hanni you guys at the eff have had success with that or if anybody has seen it or anything along those

lines? >> i'm sure orin has seen it. i don't think i have. and i'm not sure it has been turned over in foia. and i think there was a case turned over in south carolina where there was an issue about whether it should have been turned over and i think the court said no, it is fine. but i haven't seen it. i would love to get my hands on it. i know the nacl has done foia work to get some of the d.o.j. manuals to get their blue book, and i know they lost that and it is up on appeal in the d.c. circuit. i agree with you. but it goes back to the broader ports about stingrays and secrecy about the technology and again it is up to defense lawyers to kind of -- the defense lawyers are the forefront of this. they are the client in court who have the ability to use discovery tools which are going to probably be greater in terms of getting information than just

simply foia or p.r.a. requests. you have to make the requests. you don't want to make it in every single case, don't want to look unreasonable but if there is a case to look reasonable and you have to make the request. and i know that sucks because you have other things you need to do but that is something lawyers need to be aware of. >> let's take another question online. >> this is from mark parko witz. if the lawyer-client privilege is negated how does this apply to smith versus maryland metadata programs. if an attorney e-mails a client using something like microsoft hotmail? >> so i'm not aware of a court suggesting there is a privilege in metadata generally?

off the top of my head. the privilege would go to the cop tent of information -- content of information protected under the fourth amendment. sometimes they both use the phrase of reasonable expectation of privacy in a different way. so at least as far as i know they are just distinct questions. >> i think there is an a.v.a. ethics opinion on the use of e-mail for attorney-client privileged communications. don't quote me on that as i have five cameras pointed on me. >> you have no reasonable expectation of privacy for that. >> i think a.v.a. said you can use it but be careful on how you use it. and i think it is not a good idea for lawyers to e-mail attorney-client sensitive

information over e-mail and that is my opinion. >> ivan dominguez there is annin escapable -- an inescapable information. and you referred going to a political rally and i believe michael price referred to [ inaudible ] and there is an case where alabama fought to the supreme court seeking to compel the naacp said they didn't have the right to that list and technology -- and they didn't permit the indiscretion of permitting such information and i wonder your thought on advise ability and the force on the argument of the privacy of one's

associations. >> i think there is a strong argument that -- that the first and fourth support each other. for the reasons you articulate and parallel to that earlier case. metadata is very informative. and the quote, unquote, metadata indicating all of the people you contacted at a given time, how long you spoke to them, et cetera, et cetera, reveal your associations and reveal your behavior. and the argument goes that knowing that this stuff lacks fourth amendment protection, you will self-edit or self-sensore -- self censor. and there are privacy invasions don't have any commune cattive

relevants. so i think the fourth amendment shouldn't stand on its own. it shouldn't rely on the fourth amendment value to get information. the information should be protected as such independent of its communicative substance or meaning under the fourth. and there was an article i published with the american university law review sub-section titled four plus one does not equal four. >> just looking at the cases in this area, my sense is the first amendment doesn't get you too far in a criminal context because you are engaged in somebody doing wrongdoing. >> allegedly. >> well, okay. allegedly. all my clients are innocent too, don't get me wrong.

so you're dealing with a context where usually relatively clear that at least it was a good-faith investigation. the government was trying to find evidence of criminal activity rather than just expose what a group of people were trying to -- trying to interfere with first amendment protected speech. there is a case from the ninth circuit involving nambla. where they said investigating a group engaged in potential speech, there is a good-faith test from a first amendment case standpoint that goes beyond the fourth amendment. there is no fourth amendment within tilt rating the group and if you have somebody on the inside and there could be a first amendment issue if the purpose was to try too interfere with the amendment.

but if it was not to interfere with the first amendment and that goes away. and other wise it would be difficult to have -- a lot of criminal investigations involve revealing what a person did and by revealing what a person did it will involve what a person thinks and who their friends are and so if the first -- if the first amendment imposed a barrier to that, it is hard to have a lot of criminal investigations generally. so i think the first amendment protective approach i've seen is the ninth circuit which, as i interpreted it amounted to a good faith standard. so the issues are there but they are relatively moderate in most cases. >> yes, sir. >> hi. david clark student at george mason and i want to come back to the sclusary -- exclusionary rule. and when stipg ray and there is a government privilege involved or anything like that, is there

a way that you could talk about mr. harper or anyone else, talk about technology and judges aren't so sure what the government is doing, it is not egregious enough or not just a mistake of law or accident or anything like that any thoughts about getting the prize, which is exclusive evidence. >> now i can get to the other halfful my introductory talk. it depends on what the courts do with the exclusionary rule and now there is uncertainty as to what the standard is. until herring in 2009, there was a rule-based approach to the exclusionary rule. which is if evidence was discovered through some unconstitutional means there was a set of rule-based doctrines, the standing doctrine the poisonous tree and the discovery, and that will tell

you should there be suppression in this case and if there was standing and fruit of the poisonous tree and could you get suppression and herring introduced the suggestion maybe it is a more case by case was the officer bad in this case or were the police acting badly and davis, although it enacts a rule also suggests this -- maybe it is a case by case question. and it is tricky because this replaces a cost base with culpability. were the officers culpability, that it would be relevant to deterrence and relevant to the cost benefit and it has this now that we think this has the free-standing culpability question and you run into how do we mez ush culpability -- measure culpability and if there are five officers whose

culpability was measured and then you are stuck in a defense perspective when the courts take that approach saying the violation was fundamental or egregious that here we should say the officer is culpable and the difficulty is when the claim is based on an evolving legal standard or a novel legal claim is that it will be hard to argue that an officer was cul possible in violating a rule that didn't exist at the time that the officer was acting. not impossible. because you try to root it in a broader framework. you say, well, this is not a novel application of the law, this is a fundamental prison pal that requires warrants and the perception is carefully construed. and what we're waiting for is eventually the supreme court will have to wait and see what

they are doing with the herring case. is this a case by case approach or a rule-based approach to the discretionary rule and you hope you get a judge who takes a narrower rather than a broader approach to the exception of the sclusary rule but it is something the supreme court has to resolve. and then the caveat to all of that is you want to keep the supreme court out of this case and this issue as much as possible. so obviously if you have a plus ubl cert petition, you will try to get that in for your client but the justices on the supreme court are disinclined. and there hasn't been a winning ruling in a long time, maybe the 1990s or 1980, it has been a

long time. and reflecting maybe the policies of the reagan justice department in the 1980s, which influence the current justices. i don't think the scope of the sclusary rule is a major issue today to a lot of people, especially with prime rates down. but it is to the current justices. they see cutting back on the exclusionary rule as an important and necessary goal. so the ideal would be from the defense perspective you draw a judge who will take -- in the midst of this uncertainty will take a broader rule of the exclusionary rule and hope the justices stay away from this for now. >> can i just add two real quick notes? the first is when you talk about good faith under davis so davis which says reliance on binding appellate precedence is good faith. that is one of the areas where you can use that reilly moment. the idea that the older cases don't necessarily apply.

this has not worked very well in federal court so this has come up in cases post jones that involved the installation of a gps pre-joness. so after jones decided it was a research to install the gps device. what happens to the cases where the police installed gps pre-jones. but before that they were lying on knots and carrow, that said you can track a car's location in public. so that argument has been killed in the federal courts. but in the state courts there have been some state appellate and supreme courts that said knots and carrow don't control gps and that is not abinding appellate precedent for our purposes. that is a minority position to be clear and even in the state courts and there have been a few decisions. that is one example of how to use the reilly moment to further

that argument. and then when you are talking about leaning on good faith talking about binding on an order on its face that is good but later found to be insufficient. and this is one area that maybe reflects this growing -- reflects that state law enforcement officers will often time being the ones that investigate a case that makes its way up to the supreme court if they can show it violated a state constitutional statute that doesn't necessarily mean you win on the fourth amendment issue, if you can use that, and win that you can use that to defeat the leon good faith and you can say i'm glad you created this new rule you hadn't thought of before but you can say you haven't been able to do this for 30 years. in california, somebody was asking about states ore ruling a

third -- overruled a third party doctrine. in people versus blair the california supreme court said you have an expectation of privacy of your phone records under the california state constitution but you don't have one over the federal constitution. and smith said you don't have a fourth amendment interest here but under the state constitutional protection, you have that there so we are going to find right of privacy there. so if you have a case where state law enforcement are investigating a case in california, where they get records that violate blair and that case goes to federal court the blair violation doesn't matter for the fourth amendment analysis but if the court has to decide good faith, it could be relevant there. and this is where you have to be creative where you come up and understand and explore the inner play between federal and state law in these issues because there is room to -- not a lot of room and i'm not saying you are

guaranteed to win, but these are the type of creative arguments have to be making in their cases. >> hi. how big of a problem for practitioners is technology literacy and just nor judges and -- for judges and attorneys. i think it is possible to be intelligent and well educated and informed and not understand or grasp how things work and let alone law enforcement and the fbi know how things work and i know there are mechanisms at judge's or maybe not attorney's are using and appointing special masters that maybe judges aren't making sufficient use of and is that enough or do we need a systematic approach to making

sure that judges and attorneys have the technology expertise they need? >> i would say it seems like it is playing out to be a very significant problem, right. part of the problem is the technology is developing extremely quickly and there is a small number of people who understand how it works and how it works goes to how -- goes to the argument of how it works or not. and the crux is whether or not the judges could reach out to the expert and whether or not they are doing this. and we saw that in the nsa context. where judges weren't aware of how they could protect people's information and were approving orders without the clear knowledge of how to keep people protected. and with attorneys and judges -- and we might evolve to a place

where technology and experts become a critical piece of any defense attorney or any litigants kind of arsenal that they need someone that is a technical expert. >> i think you are right and i would add that i think this is the role of defense counsel to educate the judges as to what is happening. they are getting their information, in the lower courts, from the briefs. and sometimes the briefs take the judges through the technology at a basic level and sometimes they don't. and when they don't, that is when -- this is when you have these -- sometimes opinions that have no idea what is going on or oral arguments. and my favorite example is the city of ontario versus quwan case that was argued i think in 2008, involving text messages and one of the issues was

whether there was fourth amendment privacy and it went to supreme court with litigants not foeblg used -- focused on technology and they just assumed the judges knew this and my former boss kennedy said if two messages come in at the same time, do they bounce or get a busy signal thinking telephones and the lawyers were talking about how the communications go from server to server and i think chief justice server said they don't go directly from one device to the other device. and these are questions that would make sense if the technology is either a black box to you or just like the telephone or something people are familiar with. and i think it is striking that the reilly decision last year went out of its way to be sort of technology savvy to cite technology authorities ab here is what the cloud -- and here is

what the cloud is and i think in response to the quwan argument drew negative criticism. and i think you are right -- primary it is the role of defense counsel to say this is the technology and this is how it works. >> and what if you are a public defender and this isn't your field of expertise. and i'm an attorney and i need to know something about technology to make arguments. and i still don't get it. we've hired technological consultants and we've spent a lot of money on that. and what are the resources you need to have to try to% wait the court. it feels like maybe a bigger problem than just -- i don't know. >> i would call the electronic frontier foundation. seriously. i would call hanni and say what can i do? what resources do you have, because they are great on these issues. >> you should call me. and we get a lot of calls from

private defense lawyers from public defenders. i think i get a lot more calls than i used to, which i take it as i'm doing my job right. and i think the other thing too is we are trying to create more resources available like plug-play resources. hey defense lawyers here is a template, just put in your clients name and tweak it and file. and that is something the aclu is working on and others are working on an one of the things that defense attorneys have alz an -- have as an advantage awe need to pool our collective knowledge on that and in the last few years there has been an increasing amount of this because this issue has blown up. and orrin talked about the different between quwan and where they assumed without deciding there was an expectation of privacy and text messages sent to a pager which nobody in this room has a pager and reilly talking about

encryption and facebook and web md and location. so i think there are resources there and we'll help you and call in -- and a lot of public defender offices in the federal level, they have on staff forensic examiners who are getting more up to date on this stuff. i'm speaking in two weeks at the national defense investigator association which is all public defender and federal defender investigators and walking them through some stuff. there is a growing awareness and growing collection of resources out there. the aclu in northern california has a guide to stingrays and mz catchers and you can download it off their website for free. it is great. i did a skim of it for the lawyer that did the bulk of the work. there are resources out there and don't be afraid to get out

there. and aclu and others are a great resource. >> and let me affirm the problem and in a way that is expanding the thought about this. i served on a case where a guy was charmed with -- charged with using a false i.d. i've done this a -- i've written about this a lot. they made a xerox copy of the i.d. when they flopped it in my hand i was expecting to see the usual holograms to see the layers in the i.d. itself any ridges in there and all kind of security measures and they handed me an i.d. that was like paper shoved into a folder with the picture glued on toto it and so they weren't prepared to ask me questions to illicit on how this was an i.d. that would fool anybody and that compromised

their ability to examine me as an expert about the technical characteristics of what a false i.d. is. and so again affirming the problem, it is not an information technology and maybe an i.d. is an information technology but it is in a lot of different systems that we have. everybody has to bring up the game, that it is the defense bar's responsibility to inform the court. >> mr. findlay. >> thank you. i ask this question from a unique perspective. i'm the secretary of nacdl and a daughter an american university law student but my mother is the number one viewer of c-span. i note it is friday after 12:00 and i think she is at her c-span support group. i want to ask this question from a brady and rule 16 perspective. the first panel talked about the proverbial needle in a hay stack but i want to address the rest

of the hay stack because for most of the nacdl members watching right now, the searches whether it is stingray technology, produce nothing. and to those attorneys that are our members, this is a massive almost infinite source of reasonable doubt for their clients. so what i would like is some perspective from the legal/tech nulg -- technical front end telling the court, we wand everything that you have because you produce nothing that produces guilt and if that is 18 million sources that is potentially 18 million arguments of reasonable doubt on behalf of our clients. >> if you could give perspective, that would be great. >> so i totally agree with you but there is a bit of an

obstacle. and that will come from a couple of different places. so say you want to get and if you've been a criminal defense lawyer you have probably encountered that. say you want to get maim messages -- e-mail messages from facebook you are not getting them because federal law prohibits them from turning that over. they are going to turn them over to the government but not to you. and i don't think that is a bad approach. and what is important to note is the approaches aren't mutually exclusive. a lot of times i give talks at symposiums where i talk about the fourth amendment issues and they go, hanni, that is great they are going to get the warrant and they're going to get the cell warrant and they are going to put my client in 40 different locations but i want to talk about the dal bert issue and i say this is a

multi-pronged attack. if they didn't get a warrant, you challenge that. if they got a warrant, you challenge that. and if they want to challenge that you challenge it at trial. you you see if it is reliable under dal bert and this goes to the idea of collective knowledge and sharing amongst the defense bar to amount these sorts of challenges and appropriate circumstances. so i think that is the general point. in -- in terms of the specific point, i agree with you, on getting your hands on the data when it comes to the government having the collective data. that being said i heard in san francisco, the public defender routinely gets cell site information to prove alibi or to prove the other guy did it and you can get that from the telecommunications provider.

and in -- i'm try -- drawing a blank now. and i talked to a lawyer in arizonato get a case dismissed against his client that showed his client was nowhere near the scene to get his client clear. and whether you want to go in with the tactic to show me everything to prove reasonable doubt, that will depend on the facts of every individual case. but again, the important piece is to have knowledge and to share resources and figure out what is the best approach in my specific case and to think about maybe the best approach -- all four different approaches, maybe the best approach is to focus on suppression or a dal bert point and less of something else. and again, there is room to work on that. we're still kind of -- at e.f.f.

we are struggling to figure that out more specifically but that is something we have on our radar. >> anyone else? ted? >> my comment is about resources that was just -- the question that someone posed the question about the [ inaudible ] analysis. this may seem self-service at president of macdl, but just this week we had questions on this very topic of the card analysis and information provided and just like in reilly the answer is butt a millisecond away. you press your phone and you have that information right away. and there was including access online to a # 00-page forensic hand book produced by the fbi

which is [ inaudible ]. and someone else produced affidavits by the cart discovery. and members know that it is posted on that as well and so those members who are watching go to the general list serve under that discussion and you'll find it and if you are not a member, consider becoming a member. thank you. >> i'll say briefly i publish an article if your magazine articulating your thinking on this podern application for the fourth amendment and it is a helpful resource. >> and the other woman was talking about other resources on technology a simple post to the site will produce technology experts and other people that you need to help you in your case. so i think it is a great resource. >> okay. we have another question from our online viewers and then i'm

going to exercise some moderator privileges and ask some questions. >> it is not a question. but i would like to get a sense and pull back a little bit and i know you dug into the details but larger picture questions, and i know you are talking about the reilly moment, but where do you see it going next? what is going through the courts and what do you think is hitting the supreme court and do you have some tea leaf predicting on where you think this might go and i dope know if that is orin or somebody else might jump in. and how is this being challenged, not just in criminal cases or civil cases and if you know we just became a plaintiff in a surveillance case and how that comes up in the doctrine of peer law construction and if they are masking it in other ways and i was hoping you could address those things a little

bit. >> so i think the next fourth amendment likely to get to the supreme court is the protection for cell phone data, the records that cell phone companies are keeping when cell phone data is kept when a call is made or a message is received or sent. that is my guess as to the issue that will probably get up to the supreme court but it might take two or three years. i don't think there are other issues likely to get there soon at the supreme court level. just to give you a flavor of the argument that the lower courts are getting -- are getting some attention, i don't know if in the early panel there was a mention of the united states versus gannia which gives defense counsel a lot to work with and that involved a -- was there a discussion of it? okay, sorry. there were two searches. one a search warrant in 2003

which seizes a bunch of information about mr. gannia's customers and then in 2006 the government gets probable cause to believe he himself was involved in activity and they believe the files copied from his computer in 2003 and then they get a search warrant and with probable cause and they search his computer again and the second warrant said you can't do that. why? because when the government copied the files from his computers pursuant to the first warrant, the government was allowed to get the data which was responsive to the warrant but this was a lot of other stuff that they over-seized which they had to to get the overlying information which the gofs in -- which the government had in its position and when the

government kept on its computer and that meant the government couldn't use that in a subsequent case even when the government had a warrant. so think about the steps involved in that. one, it is a seizure under the fourth amendment to copy files that is one important holding there, which i think is correct. and then the second is continuing to hold on to a copy of a seized file is a seizure that is continuing and at some point can become unreasonable and then use restrictions or some sort of requirement that the government delete seized files. that is a holding which we would not have expected years ago when it came out. and i think a lot of people came out had not -- and people have not been talking about. and the implications of long-term storage. and another issue for defense -- i want to flag for defense counsel, and with e-mail accounts pursuant to a search

warrant they are preceding that with a 230 f letter saying please hold on to the contents of the account we are coming with a warrant later on and if want to delete their files or if the provider might end up deleting them, they're preserved. it is a hold this stuff while we go get a warrant. in the fourth amendment context, the police are allowed to do that, but the rules usually are the government has to be expeditiously getting a warrant. maybe the seizure can be aloud for 24 hours or something like that. hold the package while the government is getting a warrant. then, 2703 f context, the statutory rule is the government can get that for 90 days and renew that for another 90 days. so a lot of investigations prosecutors, upon finding out there is an e-mail account involved, they send that f let and basically are preserving every e-mail account that is possibly involved in the case. and then might come back to it two months later or three months later. there is a significant argument that violates the fourth

amendment because under gainious, the copying is a seizure, the holding of the files is a seizure at government request, it is a government seizure and being held on to for a long period of time, not a day, it could be 90 days or 180 days. at some point, the gainious rule kicks in and even pursuant to a warrant, that information can't be provided. as i mentioned earlier, there is the remedies problem there would be a good faith argument the government would have of reliance on the statute which may authorize that. so there is the rights versus remedies distinction again. that's an example of the kind of issue that i think -- defense counsel should be making that argument. when you have an e-mail case you want to find out is there a 2703 f letter. is this the fruits of an unconstitutional seizure because the files were there because of the f letter? and that's one example of the kinds of arguments i think we're going to be seeing. >> i'm more of a doctrine watcher than a case watcher. i think the interesting trend is

away from the reasonable expectation of privacy test, used less often by the court. it is relied on less often by the court. and courts. i sort of tried to stick to the first panel with the city of los angeles versus patel case. that's an important case that has been argued and not yet decided that will have a lot to say about what doctrine is like in this area. ordinance in los angeles requires hoteliers to keep certain records of their guests. and make those records available to law enforcement for the asking. the records have to be kept in the lobby or near the lobby so that at any time of day, police officers can come in and gather those things. for strange reasons related to how the case arose, the challenge is only to the government's seizure of the records, only to police coming in and taking the records. but the case is important, i think, because it shows how poor

the reasonable expectation of privacy doctrine is for administering the fourth amendment in this case. a hotel not being a sentian being, doesn't really have any expectation at all but it is plainly obvious that these are the hotel's papers and it is a given in the case that they're being seized. is it reasonable for them to be seized for any reason or no reason at any time of day by law enforcement? i think the answer is probably no and what is interesting is how the court gets to that result. it will have a lot to say about things like nsa spying because this is basically relitigating the bank's secrecy act cases. in 1974 and 1976, after the passage of the bank secrecy act in 1970, the repair of cases that said businesses could be required to maintain information about their customers by the government, that didn't violate the fourth amendment, and then they could be required to turn it over later because they were -- the individual doesn't

have a fourth amendment claim on what were business records. so it is a wonderful/awful two-step around fourth amendment protection for anything shared with a third party and that doesn't comport with the way life is lived today, where a vast amount of highly personal and private information are shared with third parties all day, every day. so that's -- patel is an important case to watch that will tell us a lot about the future. >> yes, ma'am. >> tiffany johnson. >> i know jumana mentioned some of the civil cases and what i think we can expect to come down the pipeline. based on what we have seen i think there is probably two issues that will continue to be litigated and probably -- and potentially remain barriers i think to addressing some of the larger programs outside of the criminal context. one of those obviously is standing. it has been raised and i think

virtually all the cases, and the court, if you look at the government's arguments, withstanding, i think they're becoming more aggressive. in some cases they're arguing that not only would you have to demonstrate that, you know, your information was collected, you would have to demonstrate an actual harm resulting from that. the more secret information is the more secret the programs are, the more insurmountable that barrier becomes. and, you know, we think about the nsa surveillance cases but for at snowden i think most people accept we probably wouldn't have been able to get to the stage the litigation it's been in. the second issue that has come up, you know over the years i think will remain an issue is the state secrets doctrine. and, you know, when -- even in cases where there is sufficient information to get to court there are plaintiffs who, you know potentially have a standing, the government's ability to really retain -- to under the state secrets doctrine, not reveal some of that information to the court and really undercut the ability to get to the merits of any of

the arguments, you know, remains a problem. and so i would anticipate both of those issues continuing to be litigated and sort of remaining some, i think, the main barriers in the civil context. >> apologize for cutting you off. >> tiffany johnson. this was mentioned earlier, but the litigation doesn't seem to work. we have edward snowden whistle-blower, where is the middle ground besides trying to get it through the courts with representing criminal defendants, you know, we don't know what we don't know. so is it flipping someone and doj, a former prosecutor coming out and bringing the manual with them? how do we get this information that they won't give us and that we're not able to get through the court system?

>> i will say there is one middle ground. and that is state pra. state public records act request and, i mean we talked a lot about sting raise for example. we know a ton about stingrays, more so than we did two or three years ago because basically people love talking about this stuff. i joke around that at eff we could write a blog post called stingray, stingray stingray and add it 50 times in the body and it would be the most viewed blog post on our blog right and, and we're going to work on that. and the reason that is is because you just saw a flurry of state public records act requests that got a ton of information about this. and so even though the foya hasn't been super successful state pr requests have been very successful. you saw it on stingrays a ton of it. it led to other requests for other forms of information about license plate reader data, a ton of pra requests to municipalities. the beauty with the state pra in

a lot of states is the process is much quicker than in the federal foya and usually it has been our experience at least, that -- and not just in california, but in other states, that all sorts of information gets disclosed. i would never see the light of day under federal foya. they got a great opinion in a state pra suit that they brought and they got a 25 page opinion where the judge basically said all of these stingray records are public today that i think the county appealed, but so, i mean, i think that's one approach, to, you know the public records act works. foya works. foya can be tedious, but it works and pra is a good middle ground. >> i think another approach sort of a hail mary but it is relying on congress to actually do its oversight function. so in the face of a lot of the reports that came out of stingrays, you had, you know, 12

to 15 senators write to the department of justice, to the department of homeland security asking questions, questions about how they're used, what the policies are, what the restrictions are and i think really leaning on congressional offices to make public the responses they get to those requests. and maybe even have congressional hearings so that there is at least some type of public debate as another avenue. and there is always the speech and debate clause. all it really takes is one member of congress who wants to reveal something and they can go ahead and do that. and so again it is a hard avenue. a lot of members of congress may not necessarily be interested or willing to do that. but there is the ability to use public pressure to potentially get information in that way, which, you know, in other contexts may not be available. >> sorry, to add one last thing real quick, another approach is to go through the state legislature. i mean, and i'm sure aclu had the same experience that eff has had, in the last two years the number of phone calls from state legislative offices who want to

talk about these issues and not just, like stingray, but about digital search and seizure, license plate readers all of this is blown up and, you know, state legislative offices have a role to play here. i have to credit the utah affiliate of the nacdl who got an amazing bill passed to their state legislature, i think about a year ago that basically put a warrant requirement for everything, like, meta data, subscriber -- everything has a warrant in the state of utah. you may think it is the state of utah, there is not a ton of people there, but, you know, the more, you know, as eff and aclu want to write amicus briefs, and of states that legislated in this area that is an indicator of where you know, the public feels about these issues. and so i think that's another avenue, especially if you're in a state