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 where -- you're somebody

who knows your local representative or if the state nacdl affiliate has a relationship with a member of the state legislature that is another opportunity where there is a lot of room to work. and i mentioned utah, but it is the same experience right now in oregon, for example. oregon association of criminal defense lawyers is working with the aclu of oregon and legislator to get a great piece of comprehensive electronic privacy legislation that has suppression remedyies, a warrant requirement for location, for cell phones it has great restrictions on license plate reader data. that is also another kind of middle ground approach. >> i hate to wrap this discussion up, it has been so great. i want to thank our discussants for great commentary and you and the audience and online for the great questions. and, again thank you very much. our next phase of this is i believe, jumana will tell you about it. [ applause ]

>> tonight a discussion on the legacy of former first lady laura bush. the panel includes aneat why mmc anita mcbride. the event was part of a conference on the bush presidency hosted by hofstra university in new york. here she talks about the partnership between the former first couple including how he supported her throughout, even when she wanted to go to afghanistan. >> they are partners in everything. and she is an anchor to him. and he is hugely supportive of everything that she -- that she does. in fact, i'll just say one comment here about even going to afghanistan. you heard about the trip that we planned, which is ten years this month, when laura bush interviewed me and said, i want

to go to afghanistan that was first thing she said, my first question to her was does the president know? and she said, yes, because i knew what that meant. if he knew that's all the support in the world that we needed. he supported her to go he sent her all over the world as an advocate or as a -- a representative of him, the closest personal envoy you could possibly send all over the world is your spouse. and she was so effective. there were partners in everything. personal lives obviously, and devoted to their family. but also in this important work of the country she was there in every single part of it. >> watch a discussion on the legacy of former first lady laura bush tonight at 9:30 eastern on c-span. the luncheon speaker at the american university conference was the former chair and ceo of

qwest communications international, joseph nacchio. in 2007, he was convicted of insider trading and served four years in a federal prison, which he says was related to his refusal to provide customer data to the national security agency. mr. nacchio is interviewed by reamer, the executive director of the national association of criminal defense lawyers, which co-hosted this event. this is just under an hour. >> i'm very excited about this discussion that we're going to have. it is a real treat in fact, for me to be able to have this conversation with joe nacchio. this is an individual who has a unique perspective from which he understands technology. he understands problems in our criminal justice system in a way that i'm sure he wishes he didn't have to understand them, he understands the potential for

overcriminalization, and he also understands the problems of collateral consequences. we -- all of these issues are issues which are of great concern to nacdl in one way or another. and when i talk about collateral consequences, i talk about the importance of people being able to get beyond the secret sentences and the silent penalties that are part of a criminal conviction and have their rights and status restored. so it is from that perspective that i'm very pleased that he's willing to share his time and interest with us. by way of disclosure i should tell you i was privileged to be introduced to joe a few -- a couple of months really after he was released from several years in federal prison. and he began immediately to discuss with us and others the important work -- see what's going on here. so -- is this it?

is this back on? yeah, the important work that our foundation is doing. so let me just tell you a little bit about his background. you heard from ted already he was born in brooklyn. but he's also -- he has three degrees. he has a bs in scientific engineering. electrical engineering from nyu. an mba from nyu and masters as a sloan fellow at mit. he spent 26 years at at&t. i think going to up to the third highest position. and i also believe, joe, you were in almost every department except for finance and accounting. >> and legal. >> and legal. so everything but those three areas. in 1997, he went to qwest communications, which was at that point essentially a startup with about 400 employees and about a $200 million budget and at its peak it had 74,000

employees and a $21 billion budget. he was -- joe was essentially a telecom executive at a period in time which was the birth of the internet and the fiber-optics network, which is the platform which we all now depend upon. he also at that period of time, late '90s, early 2000, was appointed chair of the network reliability and interoperability council and appointed by president george w. bush to chair the national security telecommunications advisory committee. he was literally at the pinnacle of his career, highly trusted by the government, top secret clearance, when something happened on february 27th, 2001. an important date not just for joe, but also important to note that that was six months before 9/11 took place. by the late summer of 2001 he

was gone from qwest he was under investigation by the s.e.c. and the department of justice. it wasn't until 2005, ten days before the statute of limitations expired that he was indicted for insider trading. he then spent 17 months going through a bizarre set of secret proceedings because of the classified information procedures act. at trial, the government pioneered a theory of insider trading that had never been used before. the idea that one could be benefiting from inflated future projections. and although he was acquitted on more than half of the counts, he was convicted on a number of them finding he had engaged in insider trading on that novel theory from a period of april to may of 2001.

subsequent to that trial and, by the way this was all based on his reported projections that were based upon his expectation of certain government contracts which eventually did not come to pass, and whether or not that related to what happened on february 27th of 2001, that is something we can talk about. his jury deliberated for, i believe it was six days, where they convicted him on those counts. his conviction was reversed on appeal. and then that reversal was reversed in an enbanc 5-4 decision. his cert petition was denied and he served four and a half years in prison. we're going to talk about all of this. i want to start out in a different place based on the conversations that we have been having today, because as i said you were there at the beginning really of the modern -- of internet as we understand it.

and in preparing to have our discussion, you said something to me that resonated and i think it will resonate with the folks here. and what we were talking about the cloud and its implications and you said something, you said it is really not a cloud it is a layer cake. what did you mean by that? >> i mean, you watch the television commercials about a cloud and it is mysterious and, well, there is not really a cloud. there is really a hierarchy in the world of telecommunications and computing about how you build an internet. and at the most fundamental layer, nothing would work on the internet, if you didn't have the world now interconnected with very high speed fiber-optic networks. that's the physical layer. above that you have a series of computers you can call them anything you want from servers to end user computers to massive main frames that are hiding in somebody's basement. you have a bunch of computers interconnected by fiber-optics. inside the computers, you have a

layer of software called operating systems. that's what tells the computer, go to this file send it here. then above that, you have what some people claim is invented in the '90s, really invented in the '60s an ip protocol. you have the address on each of those packets that we heard referred to earlier. that's another layer. then the higher layer is the one most of you are familiar with the application layer where you actually have something computing and you're really looking at application. now, it is a layer cake because you can't get to the fifth layer and make it work, unless all the layers down below are robust. so if i take some of you younger folks back to prehistory when the internet didn't exist, which was only 25 years ago okay in order for us to get to where we are today, first thing you had to do was get a robust system out of a physical layer of fiber-optic networks. that's how we got engaged. that's the company we were

building. and because our technology was a generation newer than at the time at&t, mci, sprint or any of the europeans, companies, you know bt deutch telecom any of those folks, we got approached because a truism in information technology, which goes all the way back to the ibm main frames and bell labs worked with the government in world war ii is the first user of information technology and most advanced user of information technology is going to be the defense establishment in the u.s. government. and i use defense in the broadest term. i'm talking about anything associated with defense. so they're first guys in, and when we build qwest, or as we went public with what we were building before we had laid more than a thousand miles of cable, we did 26,000 in the u.s. we were already engaged or approached to participate. >> so what was the -- you were asked to chair this committee called the network reliability and interoperability council.

explain what that really was trying to accomplish. >> there wraelzas really two federal advisory committees of substance for the technology industry. the fethtechnology industry included not just the telecoms, it included microsoft and ciscos and a lot of the defense players. so you had the lockheed martins, northrop grummans, all the systems interrelated to what we were building, depending who we were building it for. the long and short of it was there was a concern prior to 9/11, which was realized at 9/11, you remember, when southern manhattan went out of service, all of the country went out of service for your cell phones. there was a question that said, in case of disaster recovery, what are the scenarios that could knock out command and control, you knock out command and control, you knock out everything you're using as a collateral consequence. and how would we recover? and so because of antitrust concerns, i couldn't talk with at&t or mci or sprint directly.

or the bells in certain regards. so advisory committees were formed under the national security umbrella, and the fcc played on that. that's the network reliability committee. what we were trying to figure out in those days given the existing law, how could we quickly respond to back each other up, what could be critical infrastructure problems, at what layer in the hierarchy would you be attacked? i should point out, it is interesting, i was liz listening to some of the technology people saying we have to be able to back each other up, we were worried about this in the late '90s. america has been in the cyberwar sense the birth of the internet. we got better and smarter and faster than everybody else. these were problems this 1996 and 1997 when you were still using bulky laptops if you had them, okay. so the intelligence community defense department appropriately, to defend the nation, was engaged in this stuff. and these committees were there

to deal with those questions because the assets are owned in this country in private hands not by the government. so for them to do their job, it is necessary for us to be engaged. >> so basically at the very beginning of all of this there had to be this very close nexus between government and the telecommunications industry. >> absolutely. and we did a lot of what we call special construction for certain customers, because even the national infrastructure by itself wasn't going to look at all of the disaster scenarios appropriately. >> so at some point you were asked to come on to the national security telecommunications advisory committee. why don't you tell us how did that come about. how did you find out they wanted you for this. >> well you know i had to tell you, it is interesting when you do a startup company and you come out of a big company like at&t. just as a joke, first time i walked into newark airport and had to get on a commercial

flight after flying corporate jets, i couldn't figure out how to maneuver myself. you walk into a small company and you do all this stuff yourself, and, you know you try to build the company and you try to build infrastructure, try to hire people, and then you have the government come in with overlays, it is a real challenge. and so you do it from the front end. i think somebody said it earlier, you try to design reliability and into the product at the front end and that's what we were trying to do. from the beginning, we didn't have more than, like i said, less than a thousand miles of cable wire was laying down on the ground when i got visited by a three-star general in my office in denver with an unannounced visit. that doesn't usually happen. i never met a three-star general, fortunately. i had a high number in vietnam war and beat the draft that was the best thing that ever happened to me. the bottom line is when a general shows up unannounced and wants to meet you, you generally

say yes. i had this meeting and then i got a top secret security clearance from that point in 1998 to the point in early 2000, we got deeply embedded and all i'm allowed to say, i should point out, 14 years later i was reminded three months ago that i still am guided by the espionage act in terms of what i can say and even who holds my clearance back 14 years ago remains a classified act today. and which i'm going to talk about secrecy in a minute. i got involved -- >> you're not going to tell us who the general was. >> i can tell you the general. i would like to say because they would kill me, but they did worse than that, so the bottom line is you can't disclose and it puts you in a very tough position. for the skeptics out there who were watching on the web or anywhere else, i think a lot of people would say you know this guy is blowing smoke. he got convicted. he's a felon. don't believe anything he has to say. that's the position of justice department. it just doesn't foot with the classified -- with the

declassified transcripts of 17 months in the cpa court. but i was working -- we were working, and by 2000, we were deeply embedded in what i'm allowed to say is four clandestine security agencies and as a result of that, dick clark recommended that i jump ahead of the queue and become chairman of nstack. >> that's that national security telecommunications -- >> that's really the more important committee if i was to say it in retrospect. you don't want to say no. if the government approaches you, first of all, if you're going to make money for your company, fiduciary responsibility, look at the opportunity. but as a -- i hate to use the term patriotism because i think it is a hollow term today, but, you know if the government comes and says we need you guys to work on something, want to clear you, want to tell you why, here is what we want to do and we'll give you money what are you going to say? i don't want to be bothered? you say yes. now today if you say no to them there is other consequences.

>> right. so at some point you -- >> i said yes. >> you said yes. >> i got appointed to the committee, became vice chairman became the chair. >> okay. so you want to tell us about this february 27 2001 meeting? >> well, you know i think there say lot of serendipity in life that if -- had you just walked into the other room instead of this room your life would have been totally different. just to preface the february 27th meeting, at college, when i was interviewing, when i was going to graduate i thought i was going to prokt and gamble interview and walked into the wrong interview it was at&t long lines. that's how i got into telecom. fast-forward, i get a phone call on february 626th from my guy that runs the washington classified stuff and said to me in code words, there is something interesting, i need your help. that means get on a plane, come to washington. i land at reagan national. we run over to the pentagon for a nonclassified meeting. and then we drive up to

baltimore washington turnpike and walk into a qwest skiff. a skiff is one of those rooms that if you -- the cone of silence with maxwell smart, where they can't eavesdrop. we go into a skiff get briefed, i'm supposed to meet with michael hayden the head of the nsa at the time. walk into the meeting, should have known immediately when he didn't show up that something bad was going to happen. we have the normal meeting. and we do the legitimate work and then there is a bunch of people down the end of the table, basically ask me a couple of questions and they say they need some help on this other project. and i -- not a lawyer. and but i had been in telecom for 28, 29 years by now. i knew the requirements of the telecom act on privacy, i knew there was an act in '86 that dealt with data communications and so i asked the obvious question, and the obvious question you ask you meet with intelligence people, particularly if they're not fbi,

meaning they're supposed to be looking at foreign intelligence is you ask if they want to do something to the united states, do you have a fisa warrant? talked about it this morning. came out of the church committee in '78, the answer was no. actually the answer wasn't no. if the answer was no i would have felt better. the answer was, we don't believe we require it. well that's called -- in corporate speak that's called an idiot question. they're trying to determine how much of an idiot am i. to say they don't require it means you shouldn't have asked the question. then i asked the second question and that is if you don't need a fisa warrant, do you have executive authority, meaning did it come out of the staff from the president? the answer was no. i said we'll be happy to help but you need to show me some authority because, you know, i can't participate. that's all i can say. we got black balled after that. i learned six months later, it

wasn't until june of the first contract we thought we had, we didn't get 150 million bucks. later that year, we lost $700 million in contracts. i get indicted five years later, and what i'm told is you're being indicted because your forecast for 18 months in the future has too much risk in it. okay. i had been in telecom for over 30 years at the time. i never had a forecast that on business that the people below me thought was reasonable. they would always want what we call sandbag, the lowest commitment, so they can beat it and get paid incentive compensation, i want the higher commitment to force the performance. this is literally what my case was about. with one caveat. everybody who testified against me never had clearances and didn't know about the government work. and i was prevented from bringing any of it up. >> we're going to come to that in a moment. >> that's the genesis of how i got -- >> it has been reported in the

media that you were the only telecommunications executive at that time that didn't turn over customer records. is that the -- is that what we're talking about here? are we talking about something else? >> what has been reported in the media, first in 2006 usa broke a story about the nsa telephone company for billing records and they reported and i had nothing to do with this story nor my lawyers, that qwest was the only company that said no. that's true. that is not what was happening prior to 9/11. >> so whatever this was was something other than that. >> yeah. >> even though that in fact was true. >> that is true. we also said no a second time. but for that. but there was a more serious question asked earlier. >> now i'll -- now we can talk a little bit about what was different about your case. they had this novel theory, but there was -- there was something different about how your case unfolded. why don't you explain what it

was that was different about it. >> to paraphrase, what is the boy from brooklyn in the middle of all of this stuff for? we learned very early that they opened an investigation on us. and, of course like any good corporate board, first thing you do is blame the ceo and then you buy him out of his contract, which they did. i technically resigned, they paid me a lot of money to leave i took it and left, that's always the deal. four years later, they're coming after me on an insider trading charge which i think is absurd because for those of you who know the s.e.c. they have rules, rule 10b51, if you sell options, here is how you do it. i hired internal lawyers to design the plan. we got the board to approve it. we announced it four months in advance and they still said i did insider trading. but you can't -- once you fight the justice department, they'll come up with 100 reasons why that was all part of my

conspiracy. what the interesting thing was, i learned when i was a target, early '05 i wanted to tell my wife, you know i said, you know, they're -- if the theory is -- they're coming after me for insider trading and if the theory is securities fraud that the projection is wrong i need to tell you wherey i thought the projections were right. first thing my lawyer said was, don't tell me anything more. when he deals with classified information you don't have attorney/client privilege. you don't have spousal privilege. and your attorneys can be held criminally liable if they learn classified information from the defendant. the first thing that has to happen is you have to be indicted you have to be arraigned, and then you have to petition the court to grant you a lawyer the same clearance you have so you can tell them what your defense is. >> is that what happened in your case? >> that's exactly what happened.

>> and then after that -- >> after that -- >> why don't you explain how you go about communicating with your lawyers in the realm of this information that is protected. >> let me just loop back for a minute. there is something i want to say to the audience. i've been pretty pessimistic for the last 14 years. one of the bright spots i said this to norm last night and said it to ted and some others was just the fact that you people are holding this conversation okay because i think you said it earlier, that you giuys are not fighting a legal issue on the matter of overreach by the federal government, surveillance, and overcriminalization. i see it as all one pattern. you are fighting money and power. okay. you are fighting about the way this country is going to go. and the only thing i feel optimistic about is i can look around this room and see young people, okay, because i'm not going to be -- my lifetime, this

isn't getting solved, okay, and you people are passionate about it. and it is going to take a groundswell. i think you said it earlier. it is going to take a battle on many fronts . when you're up against the department of justice on a normal conviction, you have no chance of winning. if i was fighting a normal insider trading case. i spent $15 million and lost, okay, across the board. and even when i won, like on appeal, they managed to get an en banc court to hear it, which is rare, and extraordinarily three judges on the 12-judge panel recused themselves and i get my conviction reinstated 5-4. and for those of you who have been in front of an appeals court, there is a dissenting opinion, all four judges in the tenth circuit wrote individual dissenting opinions. that's how strongly they objected to what happened on getting the thing reversed. well, i had to go through a

17-month process in what is called cpa hearings under the classified information procedures act. if you think the problems you're dealing with here on illegal surveillance or oversurveillance is difficult, when the government gets to put an extra layer of secrecy on everything, okay, you can't imagine. i was with two nsa whistle-blowers yesterday, while i was in washington, they were talking to me about some things, and one of them was telling me that -- telling me about the east germany, ex-stasi guy who said, you know we wish we could do those things when back when they were around. when i saw the u.s. government do in those cipa courts would have made orwell, stasi and even the nazi courts be envious, okay? let me give you a couple of examples of what they can legally do. under section 6 of cipa and i'm going to come back to section 5,

a key one, even when the court says yes you can bring this evidence forward, the prosecutors have to agree what language you can use. in other words they can intervene and say, like, for example, i can't tell you the four agencies i worked with. even in trial i couldn't say it. i could say four clandestine security agencies. if i wanted to say i got a call from -- i'll make up a name from that genre of time i'm not suggesting it is true. but let's assume i was meeting with george tenet, the head of the cia at the time, i couldn't say, i had this assurance from george tenet the head of cia. what i would be allowed to say is i met with the senior government official. now, you guys know in front of a jury that specificity leads to credibility. and i would think that it is much more credible if i was going to make a claim that i met with george tenet than some unnamed bureaucrat in some unnamed intelligence agency. that's what the government agreed. so anything that i could even

say that i was involved was watered down. more importantly, this section 4 cipa says even if it is legitimate under the federal rules of evidence, we can keep it out if it deals with national security issues. and they actually used that on me. for those you've who are criminal defense attorneys, one of the cardinal rules in a criminal case is nobody gets to have an ex-parte communication with the judge. the government had three with my judge. >> how do we know that? >> matter of fact this is really good, if you call the u.s. attorney who prosecuted my case, he would say this is all baloney, nothing to do with it, except now you have redacted transcripts that were released after i was put in prison, thousands of pages of it, and everything i'm telling you is in those redacted transcripts. >> how did they get released? >> they got released because the denver post did a first amendment challenge, all through the 17-month process and they

basically took the position that -- in federal court that said, look, whatever is going on in the courts, everything they're saying can't be secret. so to broker a deal after my conviction and after my sentencing, i should point out the same federal judge brokered a deal that said we're going to release all of those transcripts, but the government first gets to redact the information. and if you ever had a boring weekend, you can see that you can read a transcript with an attachment and there say thousand pages of blacked out information behind that attachment. most importantly, the washington post of all people, because they weren't in denver at the time where the redacted transcripts come out, i need to tell the story because there say washington post person here today, i want to give them credit, they came out on a tuesday night, got a call from my lawyers. my lawyer said joe you're not going to believe this. february 27th meeting, which i was not allowed to bring up in my defense couldn't acknowledge it existed they failed to

redact it in the transcript. okay. they had redacted it in several parts of the attachments, but had not redacted it in the transcript. it was the rocky mountain news that thursday that wrote a story about it and on that friday it was the washington post wrote a front page story and i don't want to get into politics, but what they said was, if you read this guy's cipa transcript, what bush said about it all starting at 9/11 is not true. i'm not taking the position on that. but they wrote a front page story. so i went through 17 months. i saw these abuses. and i'm going to tell you another interesting fact, i don't mind saying this on camera, my judge, who has been removed from the bench shortly after my trial, edward nottingham iii, was ruling for first seven or eight months trying to live within the constraints of the cipa act, there was an ex-parte

communication by the name of shimkus who showed up. these people would show up from washington and weren't required to announce who they were, okay. one guy is in the transcript you see, his name is simpkins and he identifies himself as the senior counsel to the assistant attorney general for counterintelligence. now, the u.s. department of justice to this day denies that my case had anything to do with classified stuff and what was relevant to my defense. so i guess the senior counsel to the -- had nothing to do that day and decided to fly to denver and have an ex-parte communication with judge nottingham, who from that point forward completely reversed his rulings, denied access to a lot of -- we couldn't even get -- denied access to documents, said i couldn't talk about february 27th at all, denied several

other motions we made, including -- i'll tell you how dirty they play, they made a mistake. when the fbi interviews people you know them as fbi 302s, the number of the form there was a classified 302, we fought for eight months to get our hands on what the government had. they gave us one, a mistake on their part because it had a counsel to one of the intelligence agencies named her name is classified, who said yeah, i was in a meeting and they were pretty mad at joe nacchio for refusing them. she said that. so we went back to the judge filed two motions saying that i was -- my constitutional rights were being violated by not turning over and letting us interview this witness. now, very cleverly since this was all in a secret court none of you could see it so they could get away with it they reinterviewed this attorney. and this attorney came back with a new 302 and said, oh, geez, i was mistaken, i didn't really mean to say that. they weren't talking about joe nacchio and guess what the judge

said, the judge said oh okay, there is no reason to interview her. the judge didn't say we got two 302s in contradiction, this is for a jury. the judge -- i want to finish this story you'll understand why i think you're in a big fight. this judge, after my conviction after i'm sentenced to prison gets caught in a prostitution scandal, much like eliot spitzer, which if you talk to people in the intelligence community, they'll believe those guys got caught because of an intelligence sweep okay. got caught in a prostitution scandal. as the tenth circuit is investigating him, okay, and interviewing some of the prostitutes, a prostitute says to the fbi person who is doing the investigation, judge nottingham coached me on how to answer your questions. now, i think for rest of us in a normal word, that would be obstruction of justice, witness tampering and an indictment against you and you go to prison. they allowed nottingham to resign from the bench, give up his pension, he comes from a

wealthy family, okay, and the u.s. attorney chose not to do anything. now i always believed that was payback and i believe the ex-parte meetings said the following. they said, you need to find a way to convict this guy and let me tell you -- why convict many he? i was a dodger fan, from brooklyn, why do they care? the answer is pretty simple. if you're the head of nstack and you say no to the nsa, how likely do you think it is going to be that at&t, mci, sprint and everybody else agree. i think me going to federal prison for a couple of years forfeiting, having my career ruined reputation ruined, all the collateral consequences i suffer now, i'm such a threat to society, i can't vote, i can't carry a firearm under the second amendment, you know impacts your family.

that's a message to everybody else. as you know, as you read recently in 2007,ia iayahoo! admitted they got fined. so everybody has played ball and with all respect to the people who were presenting today when i hear that, you know google and facebook and cisco and microsoft are, you know putting up -- and at&t and verizon are putting up this big fight to protect our privacy rights that program is being run out of the pr department. i would bet you today, every one of the ceos is brought under the cover and has top security clearance. not because the government is magnanimous, it is because they're all agents of the government. our danger going forward is that the world is getting more sophisticated and you're up against big money big dollars. besides maybe some altruism that people think they're protecting the country. >> let me play devil's advocate for a moment. in a society in which you have

free enterprise, in which the government doesn't own all of the industries, isn't it almost essential that there be a level of cooperation between telecommunications and the government? >> it always has been essential n world war ii they were tapping circuits going through bermuda. it always has been there. you have to do it. the question is, there is legal ways of doing it and then there is not so legal ways. people who look at the fisa courts, i read recently, since 1978, there has been something like less than a dozen times a fisa judge said no to a fisa warrant, okay? since 1978. now, if you have a mechanism to get a fisa warrant to do these activities, and you choose not to do them okay, even you must believe something is wrong. because judges, these are handpicked courts, handpicked judges who always say yes.

>> and we heard first panel this morning that some of the standards have been relaxed. congress has moved back but maybe one of the answers is that we need -- we need to get our legislators engaged. i would like to sort of bring it to a close by asking you to look at a couple of trends. and talk first of all, about capacity and the potential for abuse and then talk about what the final -- >> capacity. a couple of -- i think three or four years ago i read while he was away nsa was building a place in utah for storage. they went in for a requisition to build a another storage facility here in ft. mead. they're collecting a lot of data. i think the panel was on to something very important this morning, which is going to -- i wasn't following all the legal inside and out, you don't need all the data. you need the meta data. if you can get names and addresses you can get patterns. you go from a trillion people to, you know, 20,000.

and then go look at the data. you might ask, why aren't they doing that not building all these facilitys? and the answer is, because a lot of this is outsourced. and there is a lot of money being spent, okay. don't ever believe the people who are the suppliers are finding the most efficient way to do something. they're finding the most profitable way of doing something. when your budget is secret and when all the conversations are secret, and when you play the orwellian game that we have a new threat like they did in 1984, okay, you know, you kill osama bin laden, you place him with another guy, and replace him with isis and then these guys we're in a perpetual state of war on terrorism. i think the scariest part of that now is how we're inculcating the american public to believe that they brought this fight to quote, to the lone wolves so therefore we better look at everybody inside the united states. now, don't get me wrong. there is real national security

threats. and there is a real need and imperative for our defense and intelligence agencies to be on the cutting edge and to be better than our adversaries. it is an ugly dirty world out there, okay? but the bottom line is we will prevail as a society based upon our morals and our principles not based upon we can beat the other guys in the dirty game dirtier. you look at our constitution, it is probably the best political document ever written okay. and we seem to be able to will willy-nilly throw it aside when you have national security issues. i think that's a dangerous slippery slope. >> i think that's a good note to reflect on why we're here, which is to make sure we have at least on the front lines where a lot of these things are litigated aggressive defense lawyers who are able to inform courts, try

to shape the law and then advocacy groups like so many you're hearing from today that can perhaps push for the kinds of changes that will bring us back to the checks and balances that we -- >> absolutely. i think what you -- what you need to think about is you don't want to be in the position of the ethiopians against the italian army where they're attacking the tanks with spears on horses. okay. fighting this battle through the courts is only one -- >> of course of course. >> playing field. it is a much bigger playing field. and i wish i had the answers for you guys. >> we'll turn it over to questions. i want to wrap it up joe, by just making the observation that we all, as officers of the court, as lawyers, we have respect for our system. nobody can really know -- almost -- in almost any white collar case, the issue is always -- comes down to one of intent and whether or not you can prove beyond a reasonable doubt that someone has a

criminal intent, that's what a jury is for. >> right. >> so when we reflect on this case rightly or wrongly what seems to have been lacking was the jury being able to hear all of the facts that would make it possible to make that determination. >> and i think that's -- it shouldn't be -- it shouldn't be for judges at all to decide except in the most extreme case what a defendant can tell a jury. it is up to the jurors to believe whether the defendant is telling the truth or not. up to prosecutors to say no. i think you put a layer of secrecy over that and empower the people to do what they can do, people asked me for a lot of years, why didn't you take the stand? i didn't take the stand in my defense, nor did i elocute at sentencing. if i had, i could have had a lower prison sentence because judges like it when you get up and say, now that you caught me, i feel bad i've seen the light,

please forgive me you know, and they give you less time. i remained silent. i wouldn't address the court. and people said to me why don't you do that? and maybe i was polly annaish about it but i thought it was the matter of principle. i felt i was in a kangaroo court. i felt my constitutional rights were violated. and i wasn't going to participate. and as a result, i turned down the deal, by the way, i could have had a deal on one count, probably would have done 18 months, doj would insist on prison time. the deal i turned down was one count, 18 months, $10,000 trade my restitution would have been 10,000, i would have been fined $1 million. instead, i said, no, they indicted me on 43 counts, faced 430 -- the government asked for 430 years in prison. i got only 72 months. i had to forfeit 62 million. and i was fined 19 million on top of it. and then, of course there is a

story for another time, how enjoyable it is to be in federal prison four and a half years when the feds are watching you. special designations. i was called a cim inmate centralized inmate management. that meant wherever i was the people had to report to people in washington. who these people are, who these wizard of oz people are behind the curtain is beyond me. i could tell you i got a lot of unusual treatment. i had a 15-minute court appearance on resentencing. it took -- instead of the -- i had 15 minutes, real quick story, 15-minute court appearance in denver. warden could have granted me a fur throwlough to go to denver and back in one day, we offered for the marshals to escort me. i was out on bail not a flight risk, i should have been a candidate, i could have done that, they said no. and instead i got treated to diesel therapy. diesel therapy is when they turn you over to the u.s. mashals.

for a 15-minute court appearance, i spent seven weeks on the road, four flights on con air in solitary in oklahoma city for eight days, which we inmates call the hole, i was in three penitentiary cell blocks if any of you know the federal system i had the enjoyment of being in brooklyn mdc, metropolitan detention center, truly one of the poorer facilities. for 15 minutes in court. okay. and they didn't have to do that. so what i learned and i want to end on this, what i learned being in prison and through this whole experience is something that most americans take for granted. and that's -- and some of you heard me say this at lunch, dinner last night, i kept coming back to saying, whatever the issue is the most important thing is a person's freedom to make the choice. okay. freedom is for americans somewhat esoteric concept. all of us have been born into a

free society. you go into prison and you have no constitutional rights, no freedom, and then remind you that the only obligation is to feed you, to house you and to give you clothes, anything else is a privilege, okay and when they say jump, you jump when they say you do x, you do x, you get a real appreciation for freedom. and i hate to see what i fear is a very dangerous path this country is going down, where we're giving up our freedom, in increments, because we're constantly being told there is a threat to national security. i think james madison said this well back in the federalist papers, he said he was more worried that -- of our strong central government that americans would lose their freedoms in small bits rather than a sudden usurption of power. that's what's been going on since 2001. fight for your freedom, that's

important. any system with no check and balances is going to be abused. okay. which is the problem with secret courts. and you are in for a good fight of your lives too. >> ready to take some questions? >> happy to. >> and yes, i am a convicted felon. and, yes, i can't vote and i'm not allowed to carry a gun. a whole bunch of other things depending where you live. like 40,000 of them depending what state you're in. >> with angela and frazer coming to the microphone that's a perfect segue. >> my question goes to that. so you talked about a couple of the collateral consequences that you face. one of the collateral consequences that you don't necessarily face is that you are attractive white man with a suit and a tie on and you're given the benefit of the doubt when you walk into the room that you don't have a conviction.

one of the things that some of the folks who we have talked to when we were doing the report was, they he can't even get a foot in the door. my question is, since you probably can get a foot in the door how has that experience been for you, and then my second question is, how did you feel about people who had records or incarcerated prior to you being incarcerated yourself and what are the types of people that you met when you were in incarceration? >> look, i have -- i'm blessed. i have a wife of -- we know each other 40 years married 37, she never missed a visit, except on a road trip and i couldn't get visits, my kids all got through this fine, there was some damage there. but my friends my three closest friends coming out of prison now, one is an african-american drug dealer, did ten years one is a puerto rican drug dealer who did ten years, and one is a dominican drug dealer who did

ten years. those are my three closest friends in prison. one is named q, spoony and juice. okay. because people -- now, these guys and me are about as different as you could ever imagine from background. we became the closest friends. one of the things i learned in -- and they're all having tremendously difficult times finding a job. and one of the things i learned, which i should have mentioned earlier is what prison taught me me and i said this in front of the federal judge. i asked to be sent back to prison. back to the prison i was in as fast as i could. i didn't need to be there for resentencing. and i said i want to go back because the character of people i'm in prison with is better than the character of people i worked in business and the government with. okay. and these guys all of whom got their g.e.d. degrees or 2 out of

the 3 g.e.d. degrees when i was in prison and i was a tutor to one of them. all have enormous difficulties finding jobs. they're lucky they make 10 bucks an hour. government comes in and takes 15% off the top for restitution, then they pay their taxes on the full amount. they -- even though the federal law says you can't discriminate because you're an ex-con everybody does. now, you asked me about my personal experience. it's really interesting you know, when i was the head of nstac, i'd been invited to -- i'm not picking on anybody to be specific here. but, you know i'd been invited to gates' house three times. i knew chambers at cisco was a good friend. i knew the ceos of everybody. only one ever contacted me once there was an indictment. okay. only one. i'm not -- i didn't need their money, i didn't need their support. it would have been nice for them to say, you know, joe, we thought you got screwed, we don't believe what they're saying about you. nobody ever did it.

my friends in prison, they'd have your back. they would share the last bit of contraband food that we smuggled in, okay. you know, to help you out. and all three of these guys are having a tough time. and you know what i do, the little i can do. i've tried to find jobs for them, but i'm not in that circle anymore. but i talk to them about once a month. just to keep them on the straight path. you know, you're making, you're making 10 bucks an hour. you can't afford your family. you know, you've got to see a parole board. you can't travel out of state. every month, he's deeper and deeper in debt. everybody they know in the communities they grew up with is associated with the drug trade. so up pops your friend. and he says you're 11,000 in the hole on your credit card. you've been out a year. and he says, hey, i want you to do me a favor. drive to baltimore and pick up

five keys of cocaine, i'll give you $20,000 you do that and get caught, you're doing 20 years mandatory on your second federal sentence. now, these people are in for economic crimes. i know drugs are bad. but the government wanted to stop drugs, they could. >> all right. let's go to another question. >> we'll leave -- >> we'll leave the drug wars for another day. >> and by the way, i applaud the president yesterday this week, i think somebody in here's affiliated, i think 20 he's only got 250,000 more to do, right. take the 20 and run. >> hi joe. i'm ellen nak shim ma with the washington post and co-wrote that article you refer to. i tried calling you back then and you didn't take my call but i found you here now, eight years later. >> i was busy. >> so back then we saw in court documents, i guess you said

you'd thought you were you lost out on contracts for the nsa because of your refusal to participate in this nsa program. so now today, just to clarify, are you saying you think you were prosecuted because of your refusal to participate in that program? and secondly, if you had decided if you had gone along with the nsa's request and participated, do you think they would have come back to you again a second time and asked you to take part in that second program? >> well i can't answer the second because i didn't participate in the first. but, no to this day, i believe, i used to joke with some of my friends in prison. i told them while i was there that i was the only guy in prison who got to prison for refusing to break a law. and, so you know, as a matter of fact, i think yeah i'll be very direct. i think i was singled out and targeted to be made an example of.

for five years they crawled through the books so many ways. it would have been easier to get me on a sarbanes oxley violation and much bigger consequences from a sentencing point of view. they couldn't find anything. they couldn't find anything on a normal insider trading case so they came up with this novel theory. we thought it was absurd. until i found out what happens when you -- before you get to a jury, what you can say and what you can't say. so no, i'm certain of it. as a matter of fact, give you guys a preview, i'm battling the u.s. government in court of claims. doj representing the irs, deals with my forfeiture of money. they make you pay the gross amount as a penalty anyhow. so what's happening is doj is choosing not to go to court on this. they're going to stipulate at the trial court. they offered me a stipulation to win. and i said no.

i said i want to go to trial. i want a court record because i know appellate courts only read what's in the court record. we're negotiating with doj right now. my lawyer should have it done within 30 days because they asked the judge for a 30-day stay. i'm putting in a stipulated statement in that case, in that federal case that says, if i'd been allowed to testify in 2001 here's what i would have said. here's the contracts that we were blackballed on. and here's the amount of money i thought i was expecting in my budget. that's going to become -- i'm not going to tell you what that is now. i'm going to let it get filed in federal court. i'm going to let the judge affirm the victory at the trial court and then we can talk about it. >> to be continued. >> yes. >> thank you. so, i think, we've run out of time, joe. thank you very much. i appreciate your participation. >> keep up the good work.

>> join american history tv on sunday for live coverage of ceremonies marking the 150th anniversary of the surrender at appomattox. in april 1865 confederate general robert e. lee met union general ulysses s. grant and surrendered his army of northern virginia effectively ending the civil war. we'll be live at appomattox courthouse national historical park in virginia this sunday as historians reflect on the last battles and explore the aftermath and legacy of appomattox. we'll also open our phone lines to take your calls for authors david blight and elizabeth varen. were you a fan of c-span's first lady series? "first ladies" is now a book. looking inside the personal life of every first lady in american

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and seizures. speakers include google's senior privacy policy council and white house security adviser. the forum, part of an all-day conference held at american university in washington, d.c. is about an hour and 40 minutes. >> national constitution center is a unique place. it was founded by congress to disseminate information about the u.s. constitution on a nonpartisan basis. and we are one of the only places in these polarized times that bring together all sides to debate not political questions but constitutional questions so that you the people, can make up your own mind. we just launched an incredible series of town hall national debates, co-sponsored by the federalist society and the american constitution society where we're going around the country to debate constitutional issues. we launched in washington last week, next up, new york and

chicago and san francisco, and it's just a great example of the faith that confronted with the best arguments on all sides of constitutional questions people can be elevated and educated. this is a dream team to discuss the future of the fourth amendment. it's eclectic remarkable diversity of views. and we have a lot to discuss. i'm going to begin by posing a broad hypothetical, which is not so hypothetical anymore. then each of the panelists will make brief opening statements. then we'll be off and running in the best charlie rose style. here is the hypothetical. imagine that tomorrow, president obama said that in order to protect the security of america, tiny drones would be sent flying in the air with minuscule cameras attached. and using these drones the government would reserve the right to focus on anyone, say

me, follow me forward to see where i was going if the images were archived they could go back and follow me back ward to see where i came from and basically allow 24/7 ubiquitous surveillance of any person in the world. and the question i want to ask the panel to engage in is would this violate the fourth amendment to the constitution? which protects the right of the people to be secure in our persons, houses, papers and effects against unreasonable searches and seizures. the supreme court has not ruled squarely on this question, although there's interesting recent cases that cast light on it. and each of their perspectives will be fascinating in taking up the constitutional question. and then we'll dig in also to the statutory questions and all the really interesting movement in congress there is at the moment to address the question of ubiquitous surveillance in public. let me briefly introduce our panelists. they will make brief opening statements, and then we'll be off and running. visiting assistant professor at uc hastings college of law where

he directs the liberty, security and technology clinic. he's a former computer engineer. he has a clinic that litigates constitutional issues involving espionage, counterterrorism and computer hacking. he's a member of chelsea manning's legal team lead trial counsel for brown, for the group anonymous and served as defense counsel in many cases around the u.s. he was also habeas counsel at michigan guantanamo bay. >> like any good attorney, i will say that it depends. how big are the drones? how close are they? and also is the data being aggregate aggregated? and is it being processed?

i think that the question that you present is actually not a very futuristic scenario in that we've got a lot of public space surveillance as it stands. we have the technologies that allow for license plates to be monitored. we have cameras all over the city. all of this is information that there's a viewpoint that this is all public information that you don't really have a right to privacy walking around on the street. the jones case at least alito's concurrence at least talks abouting a gas station.about ing aing a aggregation. so to answer in short, i think the current doctrine would probably allow many drones surveillance under the fourth

amendment, in public spaces. >> great. and why don't you go on to flag some of the issues that you'd like -- for us to -- >> i think the interesting issue for me is not necessarily the collection of information because you've heard from a lot of really smart people working on that. and i think they're doing a great job. but as a criminal defense attorney, i'm sort of jaded about a hopeful outcome in terms of what can and can't collect. and the idea of privacy in public space. i think the interesting issue for me is then what happens with the data. so irrespective if we win any of these challenges, we're going to have a great amount of data with the government, and it can be analyzed. and the technologies that actually conduct the analytics are increasingly sophisticated. and if you start -- and it's not just that -- you've got

technologies that implement artificial intelligence and learning. and so the goal for a lot of this big data stuff is that the algorithm can identify patterns that humans are not cognitively capable of doing on their own. you've got a situation where a computer is telling you that this person is a bad person and you should follow them or you should search them or you should arrest them or possibly drone them. at a accuracy higher than any human analyst, but you don't know why. that's the question for us. when you have a highly reliable algorithm that cannot articulate why it's giving you an outcome. and that outcome is one of culpability. what do we do? >> great. very interesting observation. the drone surveillance is probably okay. you are concerned about these algorithms and whether or not they're reliable enough to

create individualized suspicion. >> just the caveat is that is not normative answer it's doctrinal answer. >> let's start by describing how you think the current courts would rule on these questions and what some of the pressure points are. he worked in the privacy practice. previously legislative assistant to senator dick durbin on the committee, a graduate of bates college and northwestern university school of law. david, your quick take will delve in more deeply on whether or not 24/7 camera drone surveillance would violate the fourth amendment. and any additional issues you want us to dig into. >> yeah. mike's own, thanks, jeff. having heard the hypothetical and responding to it now in realtime, it strikes me if you start with sort of fundamental principles around the fourth

amendment and the doctrine that has come -- and the fourth amendment protects people and not places. if you're going to have that type of 24-hour, 7-day a week surveillance, that's ubiquitous and suspicionless that would implicate the strictures of the fourth amendment. there would be real problems with that kind of surveillance, even if it's happening in areas that traditionally have maybe been subject to lesser fourth amendment protections. >> let me just ask you to push the mike, which i forgot to do, as well. it's this little green button there. you've got it. you think under the case which we'll talk more about, it probably would implicate the fourth amendment. what are some of the pressure points you want us to delve into? >> so there have been a lot of interesting discussions today about the evolution of the fourth amendment particularly with respect to the internet. i think if the recent past is prologued or there are a lot of

reasons to be sanguine about the development of case law with respect to cases and controversies around the fourth amendment. i think as pointed out earlier though, that presupposes there will be cases and controversies to litigate. and even in the aftermath of the snowden revelations, there are still significant barriers to standing that may prevent a lot of these cases and controversies from ultimately being heard by the courts. there is another form. congress is addressing a lot of these issues. one of the benefits of addressing some of these fourth amendment issues before they come to the courts and even as the courts are seeking to litigate and address these issues is we are in some ways unencumbered by antiquated and constitutional doctrines like the third party doctrine and fourth amendment case law.

and delineating and creating the right policy prescriptions to fourth amendment issues in the digital age. so i want to talk really briefly about a few things that have been happening. two, actually two things that have been happening. and one, i think that is going to happen in the future that's going to be pretty important for the development. we are part of the due process coalition. we are still dealing in some respects with the embryonic stages of reform and trying to update the statute to codify a warrant for content standard as many of you know. it makes distinctions, i think, that don't comport with users' reasonable expectations of privacy today. at the heart of service providers, it's this notion of

180-day rule where contents of your communications are subject to the warrant requirement up until 180 days and thereafter at the 181st day all of a sudden can be subpoenaed. all right today in the sixth circuit companies like google require a warrant for all content regardless of the age, regardless of where it is stored and when it has been opened or when it has been opened. there is legislation that is pending in congress has been pending. right now, it has over 250 co-sponsors in the house of representatives. if it were voted on today in the house, it would pass. i have a lot of confidence that the same results would be true in the senate. not the least of which, it helps to pave the way for future as

many of you know in the next couple of months, section 215 in the usa patriot act expires at the end of may. there's been an important and robust debate around the fisis statute and how it ought to be modified. those who have taken an independent look at the section 215 program have concluded pretty much with unanimity that it ought to be reformed. whether it is for sort of, you know, reasons of effectiveness or legality. and, you know, fortunately, senator leahy and others have taken a broader look, not just focusing on section 215, but also on other fisa authorities that have been used to collect communications, meta data in bulk. so we've been encouraged and supportive of the usa freedom act, which was introduced, i think in 2013 and gone through several different iterations. but would address other authorities under which communications and metadata has

been collected in bulk or could be collected in bulk. we're very much looking forward to that debate, which is going to happen soon and hopeful to come to the right result as far as that goes. finally, let me just address one topic which is not so futuristic. and how we are going to deal with government access request, vis-a-vis the internet of things. there are a lot of fundamental questions around the types of rules that ought to apply. and it isn't entirely clear as a threshold matter whether the electronics communications privacy act does apply. i would submit that for remote computing services like google in many respects, it will. that the type of information that is collected from internet of things devices, and you think about your nest thermostat or drop cam inside of your home.

that would suggest a lot of detail about you about your habits in daily live and ought to be subject to the fourth amendment. ought to be subject to the warrant requirement. there are sort of questions about entities that might not fit neatly into the category of remote computing services. and so i think there's quite a bit of room for some smart thinking among folks who are in this room and also in congress to think about forward looking approaches. to think about how we would fashion a statute in 2015 based on the expectations of privacy that people are entitled to have and they do have today. i'll stop right there. >> that's great. thank you for teeing up all of those fascinating questions about reform, that's the electronic privacy act in congress. about the foreign intelligence surveillance act reform and access to internet of things. and thanks to your sense that the 24/p drone surveillance

would violate the fourth amendment. we have a circuit split between david and ahmed. do you think that 24/7 drone surveillance would violate the fourth amendment according to current supreme court doctrine? >> has this little drone found me in my bedroom? >> only in public. when you get out in the morning it follows you. it follows you to the bar. it follows you to the church, to your political rally. but it does not go into the home. it's only surveillance. >> so this little drone. when the supreme court was considering u.s. v jones, the government, that was the case where the court said if the government attaches a gps device to your vehicle and then uses it to follow you around for 28 days that violates the fourth amendment. but it said that violates the fourth amendment because there was surveillance plus the trespass. and that was the key to the case. but the government in that case said that doesn't matter fourth

amendment doesn't protect you because you're on the public roads. exactly zero justices accepted that argument. that gives me hope that the drone that follows you around is violation of a fourth amendment. >> so eager for your answer that i had your jump in without introducing you. of course, greg the senior council director of the project at the center for democracy and technology technology. that's enough of an introduction. >> you left out the website. it's www.cdt.org. >> don't forget the plug. >> listen, i -- it's easy to come here and be pessimistic about the future of the fourth amendment in the technology and

digital age. it's kind of easy because you look at what courts decided in the past. when i was at the aclu about 20 years ago, used to call the fourth amendment the incredible shrinking fourth amendment. well, i'm not so sure that the fourth amendment is going to continue to shrink. and i think there's reasons to be optimistic. i want to talk about the reasons to be not so optimistic. some of the doctrines that do shrink the fourth amendment are themselves growing. the administrative search you have to endure in the airport before you get on an airplane. it used to be a quick, less intrusive magnatom ter to see if you were carrying a gun or other metallic object. now you go through an electronic strip search machine that reveals information about what's happening underneath your clothing. the fisa court has issued an

opinion that indicates it believes there's an exception. and as you've heard throughout the day, we're leaving digital footprints behind all the time. and these digital footprints are held by third parties. and the third party doctrine makes it so that the fourth amendment often doesn't protect those footprints. that's why we should be worried. there's three good reasons to be optimistic. and the first one goes to what i would characterize as the supreme court's growing embrace of the notion that technology poses challenges to privacy. and it's unwillingness to apply by analogy its decisions dealing with things that weren't so technological, if you will, and

couldn't store a lot of data. for example in 2001, the court ruled that use of thermal imaging to explore activity in a private home requires a warrant. tracking a car for 28 days by attaching a gps device requires a warrant. and then most recently in riley versus california, the court ruled that police can't search the cell phone on an arrestee without a warrant. the government went into that case and said well when they pat you down when you're being arrested and they find something in your pocket they can pull that out and find out whether it's something that could be dangerous to the policemen or not. and they can make you -- and they can examine it. well, the court said cell phones are different. they carry a lot more information.

and so i think the court's growing ownership of the notion that technology can facilitate privacy invasion and therefore needs to be maybe given a little more protection is a good sign. another good sign is having david over here on the panel. i say that because business has engaged in the last few years in a way it hadn't in the past. turns out, privacy's good for the bottom line. so there is a good -- it builds trust and it's essential for technology companies to sell their products to have that trust. there's a powerful new constituency in the debate in congress and even some of the countries are bringing, i think extraordinary lawsuits. google challenged surveillance -- i'm sorry not google, yahoo brought an action.

>> it did. >> that's right. >> the first amendment case. this was different, became section 702 of the fisa, of fisa. and yahoo under threat of a fine of $250,000 challenged a directive that the government issued to yahoo saying that they had to turn over information pursuant to this program. that did not operate and did allow for disclosure of content. and the last thing to mention that gives me hope is encryption. the idea that people can encrypt their data to make it so the bad guys can't get it. and if they do get it, they can't use it well. and the strong protection that encryption can provide and the ease, the increasing ease with which we can encrypt our data.

>> wonderful. thank you for those optimistic observations. and also, your sense that the 24/7 drone surveillance in public would violate the fourth amendment because the court in jones rejected the government's claim that individuals have no expectation of privacy in public. justice waynestein will be the final vote. well, the lower court gets affirmed if it's a 2-2 split. >> you'll have to make a decision. >> no, the moderator has no opinion on the matters. the chair of the white collar group where he focuses his practice on corporate and internal investigations and civil and criminal enforcement proceedings. he's been an assistant u.s. attorney in the celebrated southern district and the celebrated district of columbia where he's handled many important criminal prosecutions

ranging from public corruption to gang prosecution cases. he has been director of the executive office for u.s. attorneys, general countsel of the fbi and chief of staff to the fbi director bob muller. wow, that is an impressive background. and justice does 24/7 drone surveillance in public without a warrant violate the fourth amendment? >> well, thanks that's a nice question. nice question to duck. first thing i'd say is this. when i listen to you describe this drone capability 24/7 full-time surveillance on individual. i can tell you, i just drove back in from a college trip where i'm taking my oldest to go look at a college because she's about to leave and i'm facing the prospect of not having my little girl around for me to keep an eye on. i'm thinking that drone looks really good about now.

i hear greg's argument and it's a sound one based on the decision in jones. it's very important in the jones decision they have the trespass element to seize on. and the problem is if you don't have that, if there is a decision that there's an expectation of privacy without anything more than that, then there's a huge slippery slope argument. you know, 24/7 high detail viewing by a drone. people might say, boy, that is intrusive. and you're learning about everything i do in public and whatever it is. eight hours of my day are out in the public domain. that's a lot for the government to know and compile and then synthesize and analyze. then you think, that might make intuitive sense. how do we do that? and how do we distinguish that from 24/7 police surveillance? that's done every day of the year? and we want done every day of the year.

we have to make sure he's not going to blow up a federal building. is that going to be constitutional? is that going to require us nope, go get a warrant for this. it's done obviously much lesser important context than terrorist threat investigations as well. so that cctv. you can think of myriad situations where right now we think, oh, yeah, there's no need for a warrant. if there's a decision like that, slippery slope will be the big challenge. so i think i don't see us getting to that point. i see the drone being sort of the perfect argument of the 24/7 -- the perfect argument for finding that greg is advocating. i think it's just the court, especially this court is going to be likely to get there unless there's some element to that decision that is going to prevent that slippery slope. in terms of just the general remarks.

she gave me sort of marching orders about today's panel and what i should be discussing and sort of generally a look forward to you know where i see things going with the various programs being debated now and what i see happening. and i'd like to talk about not what the constitutional interpretations are going to be and what the constitutional rulings we're going to see over the next few years but rather, where most of this debate is going to be fought out, which is in the policy realm in front of congress. just to step back, we all think every time the new issue comes up, we think it's the first time we've wrestled with this. but maybe earlier panels have made this point today i'm sure they have, but this is an ongoing issue, right? technology evolves, fourth amendment drafted, couple hundred years ago or more and it's got to adapt to this new technology. we saw that with the telephone and the cast decision. we saw that with bulk data being, you know, assembled and accessible and then the smith

decision saying there's no reasonable expectation of privacy and, you know, we've seen that in the e-mail context, in fact. you know we have the fisa statute that was passed in 1978 before there was e-mail and then e-mail came along and suddenly the sort of the concepts that -- or the operational underpinnings of fisa were now sort of turned on their head. you were just focusing on telephones. you're focusing on e-mail traffic. and a lot of overseas, you know overseas to overseas e-mail traffic coming to the u.s. and did it make sense that when we wanted to tap into the overseas to overseas communication we needed to go to the court and get an order. and that got, you know there's a healthy debate about that and that results in the fisa amendments act that allowed the 702 collection that greg was talking about. geolocation technology and the jones decision.

the courts have to deal with them. the public has to deal with them in this kind of context and think about how we want to balance security versus privacy. i shouldn't say versus privacy. i don't think they're adversarial, but security and privacy. and then most importantly, congress actually has to decide where to draw those lines inside the constitutional lines that determine where the government can go and under what conditions in terms of surveillance. we're having this debate, the issues raised here going dark, which is fbi's term for what will happen if encryption is allowed to deny them access to content of communications. will there be a dramatic curtailment by congress of the government's surveillance capabilities? and my answer is, not likely. not a dramatic one. there will be curtailing, but

it's not going to be a major scaling back. and there are a couple of reasons. nothing terribly profound here but one, it's politically difficult for congress to do that. members of congress will have to look at what will be the potential outcomes of their votes and what their exposure is of the vote. and when you're talking about national security authorities, if the government can come and branch can come in and make a strong argument for the authority, the power that they've been given that authority and why they should maintain it and give examples of how it's been useful it's politically difficult for congress to really scale back and, you know, and deny the authority. that was passed in 2008 when the popularity ratings were not high. he was against congress that was, you know skeptical of

security authorities. and that what was a very strong piece of national security legislation went through. and especially now, i think it's difficult for congress to do that. you know we've got isis rampaging across the middle east. we've got the threats in the aftermath of the arab spring that -- on a scale that are greater and more dangerous than before. and so i think politically it's going to be difficult for there to be a dramatic scaling back that's not to say there won't be changes. and this is to play into greg's optimism. i think there will be. the changes, not so much a denial of authority, but rather an application of further safeguards, further limitations, more oversight of the various existing authorities that we have right now. we saw that the classic example of that is with the patriot act. remember, the patriot act was

passed six weeks after 9/11 in october 2001 gave 22 or so new authorities or added to different authorities. done hurriedly which was wise to do and in the intervening four or five years between then and 2006 when it was reauthorized, there was a healthy debate about the need for these authorities. the political environment post crisis to one that was, you know, healthy skepticism. ig reviews. this kind of thing, i think this is what we're going to see here. most of the authorities debated now are going to survive. in that kind of fashion. the one outliar just to make one

last point is the encryption issue. and i say it's an outlier because it doesn't fit that paradigm so well. it's a little more binary. and i'm not an expert. but if you read the literature, at least what i see in the newspapers, it seems to be a more binary choice. you can encrypt or can't encrypt. and that's going to be a tough p one. that would be terribly detrimental to national security and law enforcement if there is a large category of content that's beyond the reach of government content surveillance. that's going to be an interesting debate to see. and that's a high stakes debate. >> great. thank you for that. and thank you for flagging a series of issues in congress that some of your colleagues have mentioned, as well which

all involve access to data by law enforcement and private companies that makes it 3-1 against the constitutionality of the 24/7 drone surveillance. and just to sum up the discussion i've heard, david said that the supreme court in the case said is there an expectation of privacy in public? greg said that the court in jones said that we do have some expectation of privacy in public. justice alito said, that reveals great information about us for a month violates our expectations of privacy. ken mentioned that jones emphasized that there's an important element of trespass in jones where the gps was affixed to the bottom of the car and justice scalia made that the center of his opinion, but it sounded to me you were reading

the tea leaves thinking maybe four or five justices if you add justice sotomayor and maybe some of the others, as well, might think that 24/7 drone surveillance crosses a line. although, you like justice scalia are worried about the slippery slope. and there was an interesting exchange where he said a month is too long, but a day is okay. what's the magic line? that leads me back to ahmed. tell me one more time why you thought it would be okay in light of the persuasive arguments your colleagues have made on the other side. >> well, i think in joan, this concurring opinion that greg referred to, the alito's concurrence had more to do with aggregation than individual collection. and so, again, you know, to what extent is the -- is there a drone following you around? and that is getting stored some place in aggregate for a long period of time.

or is it just following you around and surveilling you in case you pull out a knife, it will zap you with some electroshock? i don't know. in terms of -- i just don't see -- i forget, actually, david what your argument was. and if you -- i just don't see the current doctrine not allowing something that is -- it's not the 24/7 that will -- that is that takes the government action past constitutional limitations. in fact, you could probably analogize that the drone is just like a cop waiting outside i don't have of your house, et cetera. the speech would be a bigger deal breaker for the court.

i think the idea of having any machine or camera or surveillance -- in fact there are studies that show individuals working in national security, cyber security, more recently journalists that cover national security issues are saying they feel that they cannot, they feel chilled in their speech and their ability to get source information, et cetera. i think a lot of this stuff may make sense. it wouldn't pass the laugh test to say, i feel like i should have reasonable expectation of private outside, unless the information was being aggregated and processed unless it was definitely being stored, et

cetera. i think you need more than just inspection. >> i see. so greg, i'm going to ask you to respond. but your view is if the drone is following you and collecting the information, but it's not being broadcast or aggravated, it's okay. but if the drone is following you 24/7 and being broadcast live on the internet that is a different matter. and that would raise concerns under jones? is that what you're arguing? >> no, i'm thinking if it's aggregated that is that would support the alito concurrence and i can take a ride that way. but the reason i would -- i look at that more of a potential use of information of collected information issue rather than just the collection. and once it's been collected, it's sitting around and you use it, essentially, process it and you have an outcome, i think that's a due process issue. >> i'm trying to understand, the drone follows me around 24/7,

and like a reality show is being broadcast on the internet. does that violate the fourth amendment? >> i think that passes the fourth amendment's test. i don't think it passes the first amendment's test. i think that's government conduct that essentially chilled speech at the end of the day. >> great your response to this distinction between aggregation and collection. >> i thought when you were talking about aggregation, you meant aggregating the drone data with other data. is that correct? >> yes. well aggregating it with itself and then with other data. you can have a buffer that only stores three seconds of information at a time in the drone, and to the extent it detects any illegal activity that puts you in the jacobson world of -- >> this is a month long surveillance. >> for the analysis, i'm going to think of aggregation as taking the drone data, adding to it other data, and then drawing conclusions from it.

versus persistence which is taking the drone data for days and days. and my view is persistence alone is going to be enough to trigger the fourth amendment protection. and i base that view on the jones case and the five justices who seem to think that the trespass didn't really matter so long as there was persisted surveillance even though the case did go down on trespass grounds. i want to flag to folks a really interesting discussion about exactly this at the privacy law scholar's conference on june 24th, 2012. just search on this from jones to drones how to define the fourth amendment. >> right. you can't hold back those clever scholars. now, i want to -- this was a good discussion. i want to flip the hypothetical, which is not so hypothetical and, david ask you what if

google did it? and to be nice, of course it wouldn't be google, but it would be facebook. then it's fine and you can answer it. mark zuckerberg decides i'm going to start a cool new app called open planet and collect all of the current surveillance camera data in the world and broadcast it live on facebook and also encourage people to broadcast live from their phones allowing say ahmed to follow me 24/7 with his iphone and broadcast that 24/7 on the internet. if zuckerberg did that he'd say check up on your friends and learn cool stuff. whatever. if that were to be done, obviously the fourth amendment does not apply to google and facebook, even though google and facebook arguably have more power over privacy and free speech than any king, president or supreme court justice under current statutory law and you're telling us a lot about the complicated debates in congress. could facebook broadcast on its

own private 24/7 camera feeds that would allow 24/7 tracking of anyone in the world? >> so i think part of this would depend, you know, i can't envision a scenario where a large technology company would put a product or service out like this without describing what it was doing and having specific privacy protocols behind it. so i would surmise that if such a product service application existed, there would be pretty robust controls around the collection and use of that information and that you know when those -- at the point those representations were made there would be legal restrictions on the ability of a company to collect and use that information or to make material changed. that's more of a function of the privacy policy itself than it is with respect to statutory law. you know, i think there are situations, too, where it would be implicated to the extent that

information is being disclosed to third parties in way where the original user hasn't consented to that type of disclosure. so, i mean, i think there are other statutes that would likely come into play here. but, look, there's been lots -- there's been a lot of discussion about whether you know whether there ought to be a baseline privacy law, for example that governs what companies that aren't currently governed by other types of privacy law. legitimate discussion to have. i do think though it is a separate and distinct discussion from the types of debates that we're having in washington right now around government surveillance. and i think it's incumbent upon technology companies like google and facebook when we are, you know venturing into new territories that have new types of privacy implications that we do give users the control that i think they expect when there's uncertainty around these types of applications.

>> a thoughtful answer. not so hypothetical in some sense. i was at a wonderful legal futures conference that google sponsored in 2007 and andrew who was then chief of public policy said he expected within a few years google and facebook would face pressure both from the government and from users to aggregate public and private surveillance cameras and broadcast them live. we all talked about it and he thought google would choose not to do it. what i want to know now under current law is if facebook chose to do it without restrictions, would it violate current statutes? ken weinstein, could someone make the argument that we're all voluntarily turning over our geolocational information where these camera feeds to third parties when we walk down the street and therefore private companies can broadcast them to the world without restrictions? >> yeah i think you took the words right out of my mouth. i think that's a perfectly

legitimate argument. especially since don't have a lot of signs saying this area covered by cctv. you decide to go ahead and walk down the street. you've accepted the consequences. i'm not necessarily advocating it as the right result. but i think as a statutory matter, i haven't gone through the cataloging of statutes that might relate to this as it relates to a private party. but as constitutional matter, if it's a nonstate actor and there isn't a directly applicable statutory bar, seems like that would be a sound argument. >> greg that sounds like an outrage. how could this be possible? and in particular describe specifically the movements afoot in congress to address precisely this question. and if they're not afoot, what laws do you think are necessary to prevent mark zuckerberg from this invasion of privacy? >> i don't think there are really statutes or bills that are moving that would address

something like that. and i think there is a significant hole in the extent to which consumers have privacy as against corporate collection of information. but i don't see it being plugged in a meaningful way by a baseline privacy statute in the near future. you know, jeff, let me put a twist on your example. maybe you were going there anyway. so all this data's being collected by a company. and then the government says hey, that would be pretty useful for our investigations. hey, we want the realtime feed or hey we want to be able to query the data base at will. what controls that right now? and really, we're in murky land. i don't think that much does. and i think that as privacy advocates we need to start thinking along the lines that

ahmed is talking about which is not just protections are there at the collection stage. because often times when a privatecollecting, they won't be there but at the access stage when the government says we want to buy it or the government says you know, and we just want to act just like every other purchaser of information from this database. >> that's great. and greg points to this danger in addition to the invasion of privacy of facebook broadcasting the state live. the government could also seize it. in your initial thoughts, you drew this really thoughtful parallel between the fourth and first amendment. i love that because it was so brandeisian. whenever i have a free speech question i ask what would

brandeis do. and his incredible opinion in the wiretapping case, he like you noted the intersection between fourth amendment protections against virtual searches and first amendment protection for freedom of thought. and he thought it was so important for citizens to be able to develop their faculties and form their opinions in order to be immune from government surveillance. i want you to take up this facebook example. it's not the government, it's facebook, although government can buy the feeds. do you think the 24/7 facebook broadcasting violates current law? and if not what laws would you propose to constrain it? >> so, it doesn't violate current law because you consent out of the fourth amendment. in other words you've provided your consent to google -- sorry -- >> facebook. yeah. >> google would never do that. >> to facebook. i think this is what europeans refer to as data protection, which i distinguish from privacy in my own line of thinking.

i think there's a difference between the idea of invading someone's expectation of privacy. and in our case, collecting data. and i think there's a difference between that and then using the data for a variety -- one has control over that. and that is a distinction i make in my head in terms of a doctrinal distinction. but i do find that when you kind of separate, it's a lot easier to have a separation about this stuff. so you've given your consent, the company takes your data, you no longer have a right of privacy. but maybe you ought to have a right to control the data. or to -- or a right for your data to be protected. and maybe the government then could get involved and facilitate that or regulate that.

but i think another thing that greg mentioned is sort of -- what these companies can do with their analytics. so google -- well, google and facebook. google can parse through and categorize youtube videos and tell you what all google, youtube videos have somebody wearing orange pants and raising their hands. facebook can tell you if somebody's depressed before they're clinically diagnosable with depression. when you think about these things from a law enforcement or intelligence perspective they're very useful tools. and so at what point will -- at what point will that be purchased or requested or asked for or compelled. that's sort of

be forgotten and other regulatory pressures that it's facing to from europe to protect privacy. >> well, spoiler alert, we lost that case. didn't go so well for us in the european court of justice. and i think we're pretty laser focused right now in trying to implement that decision in a responsible way. i don't think you know i don't think it'll come as a surprise to anyone to hear that the issues are challenging in terms

of trying to figure out when information is you know irrelevant or outdated in the context of an individual's quote, unquote right to be quote/unquote, right to be forgotten. i know that's a term some europeans take exception to but it's become common in the lexicon of this discussion. and i think, you know this is not -- this is not -- there's no analog to what we are doing right now. i think it's an uncomfortable undertaking in the sense i think there is from a broader public the sense there is a large international company that is making decisions that effectively are going to determine what is available and accessible on the internet and what's not. it's certainly not a position i think we want to be in. i think from a small "d" democratic perspective it's not the right result. that said, i think we're trying to figure out how to implement this decision, to do it this a responsible way that's

reflective of not only the right to free expression in europe and right to free expression in europe. there are controversying whether the right to be forgotten ought to be extended to dotcom. it's an issue i think we're continuing to have some discussions with data protection authorities but we certainly believe they're real fill philosophical and legal issues and territorial way to reach dotcom. there are issues too around web master notice. the extent to which the publishers of websites will receive notice when there are right to be forgotten requests we either process or that ultimately those who pursue them are successful with. and the extent to which those notices are given or general. can a web master say, you know what you're seeing here -- or can we say i should say, what you are seeing here in the

search results may not be completely reflective of what's out there. vis-a-vis -- or i should say as opposed to you know, saying when you search on a specific term and there's been a right to be forgotten request that's been processed, at that point you say, some search results are not going to appear here. there's been less controversy with the former example than with the latter example. those are a couple examples of the issues we're sort of grappling with. jeff, you're right they're real sort of serious implications for the future of free expression. i think there's been some discussion that -- which hasn't gone very far but the notion we ought to think about, you know, how we can effectuate our right to be forgotten with the first amendment. huge challenges with that. >> we jumped right into this debate. right to be forgotten gives any user in europe the right to demand deletion from google, yahoo or any data processor of

any information about them unless first google and then a european privacy commissioner decides that it's not -- that it's not irrelevant, outdated or is relevant to some public purpose. so, if during this panel right now, someone is tweeting that i'm a really boring moderator, after the show i could object in europe that this violates my dignitary right and demand this post be deleted from google. not be indexed. google has to decide whether i'm a public figure, whether the tweet is relevant. if the guess is wrong, it's liable for the moment for relatively modest finds but pending data protection regulation passes, the fines could rise up to -- what is it, 2% or more percent of your annual income which is $50 billion. that's some pretty heavy penalties if you think of this unfair tweet i'm trying to have removed. >> i think that's at least as envisioned under the data protection regulation and the types of fines that mirtght be

imposed. that's a possibility. don't answer if you don't want to engage or don't follow it but some americans support a right to be forgotten. is it a good idea and should congress pass it? >> i can't claim to be an expert in this area but it seems -- it strikes me as nonadministrable almost impossible to administer it. it flies in the face that our culture, our political democratic culture has been based on the idea of free dissemination of information. the marketplace of ideas is nourished by more information as opposed to less. it seems a little bit -- doesn't really fit with my vision. your question is it a good idea. >> any takers? anyone to want argue for it?

are we all brandeisiain? there's a new book tracing brandeis' evolution. he wrote the first article defending the right to privacy which looks a lot like the right to be forgotten. people could be sued if there was truthful or embarrassing information that harmed their dignity. he decided free speech in a democracy was more important than dignity because people had to decide for themselves what was relevant for public discourse and he wrote these beautiful free speech opinions about the necessity of favoring free speech over privacy. greg, given the fact that no one is arguing for a right to be forgotten, what is the most important of the pending laws in congress you think are necessary to address one big problem everyone identified, which is this third party doctrine, the notion as courts have repeatedly said f i surrender information to a third party for one

purpose, i've abandoned privacy for all purposes. you talked about the cell phone search case, but the government might argue that when i walk down the street, i'm volunteering surrendering my geolocation to verizon or at&t or whoever my carrier is and therefore, the verizon can share it with the government or anyone else. what are the lawing pending? >> first david mentioned one key bill that is the bill to require warrants for contents with third parties. i agree with david. i think that legislation's time has come. it's got strong support. i'm hopeful it will move this year. there's other legislation, the gps act, that would make it so that government would need a warrant to get information generated by the use of mobile devices, like cell phones. whether it's gps information or whether it's cell site location information. whether it's prospective,

meaning going forward, or whether it's stored. that legislation isn't as far along. and i think we need to have more debate debate, more hearings about it. complex issues come up. law enforcement does these things called cell tower dumps. who was at third and main on the day the bank at that corner was robbed? which phones were there? they get it dumped from the cell tower and that lets them know which phones were there. why would they want that? could be thousands of people. because then they ask who was at second and water street on the day the bank their bank got robbed? all of a sudden they look for which numbers were at both locations because it was the same mo at both locations and all of a sudden they have their suspect. is that going to require a warrant? what would be the standard for that warrant? then there's the one-time ping.

it's different to say where is greg now versus where was greg at each moment for the last 90 days. i think it's hard to draw that line. my inclination is you need a warrant for information, period. others want to draw that line. so i think that the location legislation isn't as far along. i think it's worthy of consideration and of more debate. i'm hopeful it will move forward after the warrant for content legislation goes through. the other bills that are pending, ken kind of eluded to section 215 surveillance legislation. my own view is that congress is facing an important decision about whether to continue to permit bulk collection of information about every phone

call virtually every phone call made to, from or within the united states. and congress has forced itself to make a decision by the statutory authority for that program. so, i think that's going to come up as well. i think those are the biggies. i don't want folks to miss one other debate, and that is the cyber security legislation. there's legislation pending right now that would allow companies to share what are called cyber threat indicators that are derived from your communications with the government. not just for cyber security reasons, though, but also in particular in the senate legislation. also for criminal reasons. a number of criminal statutes could be used to trigger this volunteering of information from providers to the government.

i think that's very dangerous. i'm all for cyber security. i think there's a flaw in current law that doesn't allow companies to share what they ought to be able to share they ought to share but that the legislation is going way overboard in terms of describing and permitting the sharing of that information. >> great. that's very helpful. let's get the panel's thoughts on the categories of debates you've talked about. first, bulk collection then the warrant for content and geolocation information and then some of those cyber security issues. ahmed, you're counsel for chelsea manning. is a bulk collection ban by congress necessary or do you believe bulk collection as currently practiced by the nsa violates the fourth amendment, as at least one court has held? >> i think a ban