the court in robinson did not distinguish the container based on what was in it or the nature of the container and thus, the search was okay. riley rejects that. saying these two things are similar is like saying a ride on a horse is like a rocket ship to the moon. they get you from point "a" to point "b" but nothing else justifies lumping them together. that's the point we have to make when the government comes into court and says the court has ruled on this, 40 years ago, they ruled on a case and that's the answer here. it's not the answer here. this is different. and the second riley moment, i think, is the courts and this is the court's own language, that there is a quantitative and qualitative difference about that cell phone that triggers a different constitutional

perspective on whether or not account be searched to use for arrest. it goes through four examples of the difference. to paraphrase it quickly, a phone stores more pieces of data that reels more about a person. text messages and e-mails and pictures and apps. and when you look at that it reveals more about a person. the second is if you only look at one piece of data on the phone there is so much about it it reveals more about a person. you may have a picture of a kid in your wallet but your cell phone will have pictures of what you ate for dinner and who you hang out with and whatnot. and that matters. the other two things the court emphasized is that the data goes back before the phone is purchased. you have ten years of e-mails all over again. and you know, the fourth point was that phones are so pervasive

in society today and all these things together triggered a different constitutional analysis that was not dependent on what the court said 40 years ago. that approach can work in other contexts. that approach can work when you are talking about cell phone location information and a forensic image of a computer hard drive that is seized at a crime scene. that approach can apply to all sorts of other kinds of mettadata. we have to make those arguments under the fourth amendment. you is to make them under your state constitutional protections. you may end up winning under that law law and that is the riley moment. it has to be a combination of asking questions, causing hell making discovery requests and showing that we know what is going on or we think we know what is going on and scratched the surface of what is going on and tieing this -- i love this phrase this riley moment that that -- that that is where we

can take the fourth amendment and state law protections. >> all right. questions. you can come up to the microphone there, please. >> first of all, thanks, you have done a really good job of distinguishing between the fruits of a search and the source of a search. when you look at rule 16 it looks about the source of a search. and i am curious about a couple of things, especially in the context of federal criminal practice. when i think about confidential informants that is a way to ask a court. we need to get discovery. is there good case law or guidance you can offer about asking about the reliability of the information gathering device when it is not a human but a machine and i'm wondering if there are standard brady

questions you should ask. saying you know, we have evidence that this kind of evidence gathering is inherently unreliable and we need information about what was used and whether the device was tested for liability and whether it was operated by someone trained in using these devices? >> i have to give you a caveat. the caveat is i'm from california. that means i practice and the ninth circuit. that is my caveat. i have plenty of good case law, but it was ninth circuit. take that as it may be. the ninth circuit has a couple of opinions. they don't talk about electronic surveillance but they talk about what you talk about. the reliability of a source of information. and in the specific case, a case called u.s. v. thomas a case involving a dog, a canine-sniffing dog. and in that case the ninth circuit said under rule 16 not

necessarily brady but under rule 16 evidence of the dog's reliability is discoverable in order -- because it's relevant to raising a suppression motion. and so, i have argued that that approach, if it applies to the dog it applies to the technology, right? the dog tells you about the presence of contraband, and the government has argued that the dog-sniff cases basically support their use of technology that only looks for contraband electronic files like programs that are able to search a computer file's hash image in order to decipher whether it's a known image of child pornography, for example. to the extent the dog evidence is discoverable i would say any information about the reliability of electronic

evidence gathering would be discoverable in the same vein. but you is to pin it to i want to raise a suppression motion. it is not discoverable for the sake of discoverable but i need information about this reliability to make a suppression motion. i'm going to move to suppress under the fourth amendment because they didn't get a warrant or i think there is a franks issue because i think they didn't -- you know weren't completely forth right in the warrant application and i'm going to challenge whether the basis was correct. i think you can definitely make that argument. you mentioned rule 16. of course again, in state court if your state discovery practice is broader than rule 16 a lot of states have broader discovery rules than rule 16, that's certainly something you want to hinge your argument on. >> anyone else on the panel? >> yes, sir? >> good morning.

steve mercer. mr. harper under your framework for the fourth amendment does it protect an individual's ability to control personal identifying information and to be anonymous? >> it depends on the circumstances. if you have taken steps to protect personal identifying information, absolutely yes. most of most of us share a lot of personally identifying information all the time. by entering the room we share the appearance of our face. by posting on a public forum we share identifiers. when we interact with websites we share the ip address which is essentially an identifier which can be quite reliable. so it depends on the particular factual circumstances and whether or not the person tried to restrain access to the information. there is a really interesting

dimension to the license plate tracking that we now know is going on so comprehensively. and that's the license plate. i am pleasantly surprised by the emergence of this issue because i wrote something like 14 years ago and testified in congress about the privacy invasive aspects of requiring drivers, requiring license plates on cars. nobody at the time i think really -- what is this idiot talking about? but now we realize that requiring a license plate on a car, because of the technology that's come along, is equivalent to requiring an individual to wear a name tag to walk in the mall, for example. there are some policy differences between the two, but somewhere, someone hopefully in a court will reopen the question

whether putting licenses on cars might be a first amendment problem because it prevents you traveling to a protest or to the seat of government anonymously. the changes are multidimensional, but certainly identifying information is just a special category of general information. it's important if people want to protect their privacy to withhold identifiers. and if they have withheld identifiers, factually keeping them from others then they should be protected just like all over information. >> let's take a question from an online viewer. i'll get to you in just a moment. >> if you are watching this lifestream and have a question you can e-mail questions. this one is from robert. i think he will tell me if i'm saying this wrong. but he said forbes in 2013 said

that traditional mail is being tracked. address information is scanned collected, analyzed and shared. has this data been used in any cases? >> i mean,, i am sure it has been used in cases because now basically all mail cover information is coming from this broader program. so the way -- at least according to this 2013 story, the wail mail coverage is working instead of an individual request that an individual mail -- the outside of the mail is photographed everything is photographed and then it's just assembled later on if there is a mail cover. my understanding this is the standard way that mail covers are now executed. >> i think that's right. that is correct as far as i know in terms of the mail cover specifically. what is interesting is that shows, and this was something that was talked about in the 1st

panel, when we were talking about the way the nsa was collecting evidence at a large scale, what you see happen is it trickles down from other federal agencies and interstate law enforcement. it starts it starts with national security collection and then it becomes male covers, license plate readers, the dea as a call records database of calls that people in the united states placed to iran and that was because according to the dea iran has a nexus to drug trafficking, while that might be true, i think we could all think of other countries that have a more significant nexus to drug trafficking including the country down to the south. and so you see how this trickles down and you here about local law enforcement databases, biometrics are dna or whatever it may be, and this is the world we live in in terms of how

evidence is gathered and used to investigate and prosecute cases. and this is why it is important for defense lawyers to not only be familiar -- not just the broad contours of this stuff but the specific contours and what is happening in their locality, what is happening in flairtheir state and the police department is collecting information and start to think of ways to inform judges about what is going on in the specific localities that are at issue. >> let me say in april the cdl will issue a report on the use of mail cover information reportedly approved by a board in mid-april linked to the cdl website shortly thereafter that will talk about some of the uses of that data and the accelerated usage of it over the last few years. >> this is along the lines of the earlier question the

reliability of information being used in federal cases. one thing that i have been trying to obtain lately is the fbi's cart manual, computer analysis response team. i think it would be tremendously useful in cross examining fbi antibiotics when they're on the stand. but at this point i have not been able to successfully track it down. i'm wondering if you guys have had any success with that or if anyone has ever seen it or anything along those lines. >> i haven't seen it. and i know there was criminal case, state case in south carolina a couple years ago where there was an issue about whether it should have been turned over and the court said no, it was fine. but i have not seen it. i would love to get my hands on it.

i know the nacdl has tried to get the blue book i think that's what it is call and i know they lost that in the district court and it is up on appeal in the d.c. circuit. i agree with you, but it goes back to the broader points, sting race and excessive secrecy about some of this technology and it's up to defense lawyers to kind of -- defense lawyers are at the forefront of this. they are the ones with the clients in court with the ability to use discovery tools which will probably be greater in terms of getting information than foya or pra requests. you have to make the requests you may not want to make it in every case but if you think you have a concerted case where you can make it you have to brief the issue and make the request. i know that sucks to hear that because the defense lawyers have a million other things to do for their clients too but this is a

integral component of criminal defense in the modern age that lawyers need to be aware of. >> let's take another question online. >> if a lawyer client privilege is negated how does this apply? is privilege preserved if an attorney emails a client and a client and uses a third-party e-mail provider like microsoft hotmail? >> so i'm not aware of a court suggesting there is a privilege in metadata generally. this is off the top of my head at least, i am not aware. the privilege would go to the content of the conversation, but there is a difference between the privilege issue in the 4th amendment issue. there is a difference between the privilege issue and the fourth amendment issue. they they sometimes both use the phrase reasonable expectation of privacy, but in a different way. so at least as far as i know

they are distinct questions. >> i actually think there is an aba ethics opinion on the use of e-mail for attorney-client privilege communications. i don't -- i was about to say don't quote me on that with five cameras -- >> you have no reasonable expectation of privacy. >> exactly. >> but i think that has been settled and the aba has said you can use it but you should be careful how you use it. and you know i think it's not a good idea to e-mail attorney-client sensitive information over e-mail but that's just my opinion. >> ivan? >> ivan dominguez. there is an inescapable implication of other constitutional implications that we have other than the fourth amendment. mr. harper, you referred to going to a political rally and first amendment rights and michael price spoke about membership lists. there is a 1958 supreme court

decision where alabama fought all the way to the supreme court. the supreme court held they did not have the right to that list. a lot of the technologies discussed today seem to permit the indirect securing of such information and i'm wondering what your thoughts are on the availability adviseibilty and force of the first amendment argument concerning freedom of association which that case held includes the privacy of one's associations. >> i think there's a strong argument that the first and fourth support each other. for the reasons you articulate and the parallel to that earlier case. metadata is very informative, and the quote-unquote metadata indicating all the people you

contacted all the people you contacted at a given time, how long you spoke to them, et cetera et cetera reveal your associations, reveal your behavior and the argument goes that knowing that this stuff lacks fourth amendment protection, you will self edit you will self censor. so that is a strong argument. there are plenty of cases though where the same kinds of what we think of privacy invasions where the same kinds of invasions don't have any commune kative first amendment relevance. so i think the fourth amendment argument should also stand on its own. that is, your argument shouldn't rely on the fact that there's a first amendment value at stake in order to get protection for information. the information should be protected as such independent of its communicative substance or meaning under the fourth.

in fact, there's a section, an article i published with the american university law review that the subsection is titled four plus one does not equal four. >> just looking at the cases in this area, my sense is the first amendment doesn't get you very far in the criminal context because you're dealing necessarily in a criminal context with somebody who, in fact was discovered to be engaged in some sort of wrong doing -- >> allegedly. >> well, okay. a a a allegedly. all my clients are innocent, too, don't get me wrong. so you're dealing with a context or user is going to be relatively clear that at least it was a good faith investigation, government trying to find evidence of criminal activity rather than just expose what a group of people were trying to interfere with first amendment protected speech.

there is a case from the ninth circuit involving nambla where the ninth circuit effectively said investigating a group engaged in potential speech like nambla there is a good faith standpoint that goes beyond what the fourth amendment standard would be. so there's no fourth amendment problem with infiltrating the group. if somebody on the inside of the group is going to share information with the government, not a fourth amendment issue but it could be a first amendment issue is the purpose of it was to try to interfere with first amendment expression to the implication of that is, the purpose of nothing to do with first amendment expression. just the fourth amendment and the first amendment issues the way. otherwise it would be difficult to have any kind of -- a lot of criminal investigations are going to involve revealing what a person did and by revealing what a person did is going to involve what a person thinks and who their friends are. and if the first amendment

imposed a barrier to that, it would be hard to have a lot of criminal investigations generally. i think the most first amendment protected approach i've seen is the ninth circuit which i like to put it at least amounted to a good faith standard. so the first amendment issues are there but they would be relatively modest in most cases. >> yes, sir? >> hi, david clarke, a student at george mason. and i want to come back to the exclusionary rule but it can be challenging in situations like sting ray when there is a government privilege type situation involved or anything like that. is there a way that you can talk about, mr. harper or anyone else up there, walking through that kind of a analysis especially with that type of technology and judges aren't so sure what the government is doing is actually egregious enough or not just an accident of administration or something like that.

so any thoughts about getting that which excludes evidence? >> now i can get to the depressing other half of my introductory talk. it all depends on what the courts do with exclusionary rule and right now there is just a lot of uncertainty as to what the standard is. until herring in 2009 there was a rule-based approach to the exclusionary rule which is if evidence is discovered through some unconstitutional means there is a set of kind of rule-based doctrines, standing doctrine inevitable discovery and that would tell you in this category and cases should it be suppression or not? if you could show to withstand and poisonous tree and the inevitable discovery you could get depression. and it introduces a suggestion that maybe now it's more of a case by case was the officer that in this case, or the police acting badly. and then davis, although it enacts a rule, also suggests this sort of maybe it's more of a case-by-case question.

it's tricky because the court replaces this cost-benefit analysis with the culpability standard. were the officer culpable. the idea that culpability would be relevant to the deterrence and then the deterrence part relative to the cost benefit of the court has this now we think of this as free standing culpability question. and then you run into how the major culpability? that culpability in the one case, if there are five officers, whose culpability matters? you have some court saying we look at whether the officer was culpable in this case, if we find a bad actor then we will suppress. then you are stuck from the defense perspective when courts take that approach saying the violation was sufficiently fundamental or egregious that here we should say the officer is culpable. and the difficulty of that especially when the claim is involved in a legal standard or a novel legal claim is that it's

going to be hard to argue that an officer was culpable in violating some rule that didn't exist at the time that the officer was acting. not impossible because would you try to root it in a broader framework. you say this is not a novel application of the law. this is a fundamental principle that searches require warrants unless there's an exception and the exception should be narrowly construed. there's argument you can make but it's going to be tough going. and then really what i think we are waiting for eventually the supreme court is going to have to figure out what are they doing with the herring/davis line of cases. is this a case by case approach to the exclusionary rule? or it is more of a rule-base aid approach to the exclusionary rule. right now there's a lot of uncertainty. you hope you get a judge who takes a narrower approach rather than a broader approach to the exception, to the exclusionary rule. but it's ultimately going to be something the supreme court has

to resolve and the caveat to all of that is from the defense standpoint you want to keep the supreme court out of this issue as much as possible. obviously, if you have a plausible cert petition you are going to file the cert petition to try to get relief for your client. but i think the current justices on the supreme court are disinclined to apply the exclusionary rule. i think there hasn't been a winning remedy to the exclusionary rule case in a long, long time. maybe 1990, maybe the 1980s. it's been a long time, probably reflecting interestingly i think the policies of the reagan justice department from the 1980s which influenced the current justices. you kind have this weird historical lag where i don't think the exclusionary rule is a major issue today to a lot of people especially with crime rates down, but it is the current justices, they are cutting back on exclusionary rule as an important and a necessary goal.

so the ideal would be from a defense perspective you draw a judge who is going to take it in the midst of this uncertainty is going to take a broader view of the exclusionary rule and you hope the justices stay away from this from now. i would like to just add two quick notes. the first is when you're talking about good faith under davis, said davis which says reliance on binding appellate precedent good-faith, i think that's one of the areas where you can use that riley moment, the idea that these older cases don't necessarily apply. this has not worked very well in federal court. with this has come up in cases post jones that involve the installation of gps pre-jones. right? so after jones was decided it's a search to install the gps device. what's going to happen to all those cases where the police installed the gps devices before jones was decided? all of those cases into federal courts, the court said this is

david's good faith because pre-jones they were relying on these two cases from 1980s that said you could track a car's location in public. that argument has been killed in the federal courts. but in the state courts there have been some state appellate courts and state supreme court that said, they don't control gps and that's not binding for our purposes. that is a minority position. to be clear, and it's a minority position even in the state courses but there have been a few decisions. that's one example of how you could use that riley moment to kind of further the argument. and then when you're talking about leon good faith, that is binding a reliance on an order that on its face looks good but later is found to be insufficient i think that one area and this may reflects the fact that state law enforcement officers will often times be the ones investigating a case that

makes its way up to federal court. in those instances if you can show that the state law enforcement violated a state constitutional protection or state statute, while that doesn't necessarily mean you win on the fourth amendment issue, if you can win the fourth amendment issue then you can use the state law as an advantage to defeat the lee on good faith. you can basically argue i'm glad she created this new rule that you had really thought of before but note that in this state, for example, police have not been allowed to do this for 30 years. i'll give you a concrete example. in california, for example, from the last panel someone was asking the state government the third-party doctrine. california has overruled the third-party doctrine in 1979 in a case called people versus blare, the california supreme court said you have an expectation of privacy in your phone records under the california state constitution. you don't haven't under the federal constitution, and blair was decided after smith and they said smith said you don't have the fourth amendment interest here, but under the state constitution you have a state constitutional protection.

so that is, we're going to find a right of privacy there. if you have a case where state law enforcement are investigating a case in california where they get records that violate blair and i case goes to federal court, the blair violation does not matter for the fourth amendment like analysis but if the court is going to have to come to a point to decide good faith it could be relevant there. this is where you have to be creative in coming up and understanding and really exploring the interplay between federal law and state law in these issues because there is room to -- not a lot of room and i'm not saying you are guaranteed to win, but these are the types of creative arguments i think lawyers have a to be making in their cases. >> thank you, yes, ma'am? >> how big of a problem for practitioners is technical or technological literacy? and that's -- technological

literacy for judges and for attorneys. i think it's increasingly possible today to be extremely intelligent, well-educated, well-informed and still not have a basic grasp of how the things that you use work, let alone the things that please are using and the fbi is using. does that play out as problematic in a court? i assume i know the answer but if so, i know there are, you know mechanisms certainly at judge's disposals, such as appointing special masters or panels of experts that judges are not making use of. is that even enough in make sure we do more to make sure that judges and attorneys have the technological expertise they need? >> i mean, i would say seems like it's playing at to be very significant problem, right? part of the problem is again technology is extremely quickly and there's a small number of people who appear to understand how it works. it seems like how it works can often go to the crux of whether an argument will work or not. i think becoming particularly,

acute with judges who even though they may have their resources to reach out to technical experts they don't even know what it is they should be doing. they may not understand the complexity and how things were. we've seen this with the nsa context where judges were not aware of how the technology works to requests for information were approving orders with a clear understanding of the number of people impacted. so i do think there's a need for education at all levels, both with attorneys and with judges. we might be evolving to a place where having technological or tech neurologist -- technologists experts become a piece of a defense attorney or any litigant, kind of arsenal. but they need someone who is a technical expert. >> liza, i think you're absolutely right. i think this is the role of the

defense counsel to educate the judges as to what is happening. and sometimes the briefs take the judges through the technology at a very basic level and sometimes they don't. and when they don't, that's when -- that's when you is sometimes opinions that have no idea what is going on and the oral arguments. my favorite example of this and some of you will be familiar with it is the city of ontario versus quan case involving text messages effectively, pager messages and one of the issues is is whether there is fourth amendment protections in the context of the messages. it was briefed by city litigants who were not focused on the technological question and the justices were asking questions along the line of if two messages come in at the same time do they bounce or do they

get a busy signal? thinking telephones and the lawyers were talking about how the communications go from server to server and chief justice roberts asked they don't go directly from one device to the other device? these are questions that make sense if the technology is a black box to you or like the telephone or something that people are familiar with. and i think it's striking that the riley decision last year went out of its way to be technologically savvy and cite authorities and here's what the cloud is and all these sorts of things. i think perhaps as a response to the quan argument. i think you're right and it's the role primarily it's the role of defense counsel to say this is the technology. >> what if you are a public defender, right and this is not your field of expertise. i'm an attorney and need to know about technology. and i read everything i can.

we have hired a consultants. we spend a lot of money on. that what if you are a public defender? what are your resources to have the information you need to try to persuade the court? it just feels like maybe a i guess it feels like maybe a bigger problem than just, i don't know. >> i would call the electronic frontier foundation. seriously. i would call and say, what can i do? what resources do you have? because they are great. >> you should call me. and we actually get lots of calls from private defense lawyers and from public defenders. i think i get a lot more calls than i used which i take it as i'm doing my job right. and i think the other thing is we're trying to create more resources available like plug and play resources. like hey, defense lawyers here's a discovery motion that is a template.

put in your clients's name, tweak it a little, and file it. i think one of the things that defense attorneys have as an advantage is we need to pool our resources and we need to pool our collective knowledge on these doctrines. and i think in the last few years there's been an increasing amount of this because this issue has taken, is blown up. i mean, orin talked about the difference between quan where they assumed without deciding expectation of privacy and text messages sent to a page where nobody in this room has a pager, right? and riley were they talk about encryption and facebook and web md and location. i think there are resources there, and we will help you we will -- a lot of public defender officers especially in the federal level, they have on staff forensic examiners who are getting more up-to-date on this topic i am actually speaking in two weeks at the national defense investigators

association, just all public defender and federal defender investigators, and just walking them through this stuff. there's a growing awareness and growing collection of resources. the aclu in california has a great defense attorney guide to stingrays. you can download it off the website for free and it's a great resource. i did a skim of it for a lawyer who did a bulk of the work. so there are resources out there. don't be afraid to ask. nacdl is a great resource. come to us. >> let me briefly affirm the problem in a way that might expand people's way of thinking about this stuff. i served as an expert witness a few years ago on a case where a guy was charged with using a false id. i've written about identification a lot. and what they made available to me before i received was a copy,

you know, a xerox copy of the i.d. when they plopped it in my hand, i was expecting to see the usual holograms, to feel -- to see the layers in the i.d. itself any ridges and all the security measures. they handed me an i.d. with a picture glued on to it. they hadn't given me an advance what the actual nature of the id was. so they were not prepared to ask me questions that would elicit just how unbelievable this was as an i.d. that would actually fool anybody. so that compromise i think their ability to examine me as an expert about the technical characteristics of what a false i.d. is. so again affirming the problem. it's not just in information technology or maybe id is a form of information technology. it's in lots of different systems that we have. everybody has got to bring up up the game. i think orin is right, it's the

defense bar's responsibility to inform the court. >> mr. findlay? >> thank you. i ask this question from a unique perspective. i'm the secretary of the nacdl. i have a daughter who is at american university law student. but most important a mother is the number one viewer of c-span. in fact, i note it's friday after 12:00 and i think she is at her c-span support group. i want to ask this question from a brady and rule 16 perspective. the first panel talked about the proverbial needle in a haystack but i want to address the rest of the haystack. because for most of our members that are watching this right now, these types of searches, whether it's stingray technology really produce nothing. and to those attorneys that are members, this is a massive almost infinite source of reasonable doubt for the client. so what i'd like is some

perspective from a legal/technical standpoint on how we can address these issues in the front end. in other words, telling the court and telling our opposing counsel hey, we want everything actually that you have because you produced nothing that indicates guilt. and if that is 18 messages or 18 million sources of communication that produce nothing, that is potentially 18 million arguments of reasonable doubt on the guilt of our clients. could you give a perspective, that would be great. >> so i totally agree with you but it's going to be a bit of an obstacle. and the obstacle is going to come from a couple different places. so, for example, let's say you want to get, if you've been a criminal defense work you probably have encountered this. let's say you wanted to be no messages from facebook as a defense lawyer. you are not getting them, right? because the federal law prohibits them turning the information over to you. they can give to the government but they can't give it to you. and so there are going to be some obstacles to that approach

but i don't think that's a bad approach. and i think what's important to note is these approaches are not like mutually exclusive. like a lot of times i get a lot of talks at symposiums like this where i talk about the fourth amendment issue and i want them to get a warrant too but they are going to get the warrant and they will have 100 pages of cell phone records putting my client in specific locations. i don't care about the fourth amendment issue. i want to challenge a liability. so how can i, why did you guys ever does that? i always say these are not mutually exclusive. it's a multipronged attack. so you challenge -- they didn't get a warrant. you challenge that. if they got a warrant, you challenge the warrant. if they got a warrant and its particularized and they want to use it at trial, you argue the records aren't precise enough to use at trial. they are not mutually exclusive and those are not in tension with each other. this again goes to the idea of collective knowledge and collective sharing of information amongst the defense

bar to mount the sort of challenges in appropriate circumstances. i think that's the general point. in terms of the specific point, like i said, i agree with that. i think the practical difficulties getting your hands on the data, particularly when it's the government that has collections of that data. that being said, like i said, i've heard of examples, in san francisco, for example, the public defender routinely gets cell site information to prove an alibi or to prove the other guy did it. those are the types of information you can get from the cell provider. you know, i'm drawing a blank. there have been other examples, and i've talked to a lawyer in arizona did that to get the case dismissed that he had cell site records that showed his client was nowhere near the scene of the crime at the time it was committed. again, you can even make those with the request unless you know

that information to whether you want to go in with the tactic of show me, bring it all in, let's prove reasonable doubt, that is going to depend on the facts of every individual case. but again the important piece is to have knowledge and to share resources and figure out what is the best approach in my specific case. and maybe the best approach is all four of these approaches. maybe the best approach is to focus on the suppression issue maybe to -- again there, is room to work on that. we are still, we are still struggling and trying to figure that out more specifically, but that something we have on our radar. >> anyone else? ted? >> my comment is about resources that was just posed -- the question prior that someone posed a question about the analysis.

you know this may seem self serving as president of nacdl but one of the greatest resources is nacdl itself. we had a discussion on the list serve on the analysis and the information provided. and just like in riley the answer is a millisecond away. on that listserv was a handbook produced by the fbi which is correlated. and someone posted affidavits. for those members of the nacdl, i know it is posted on as well. those members who watching go to the general listserv go there to

find it and if you are not a member, consider becoming a member. >> i published an article in your magazine articulating this thinking on the modern application of the fourth amendment. >> and the other thing when this other woman was talking about where to get information on technology a post to the site will produce people that can provide the information you need to help you in your cases. i think is it a great resource. >> we have another question from the online viewers and i will exercise a moderator privilege and ask a question myself. >> i would like to get a sense to pull back a little. i know we dug into the details just sort of two larger picture questions. we have been talking about this riley moment. but one of my questions is where do you see it going next? what is coming through the courts? what do you think might be hitting the supreme court?

do you have tea leaf predicting on where you think some of this might go. and then i also had another question on how some of these things are being challenged not just in the course of criminal cases but also in civil cases. if you don't know, you can look at our the website but we are a plaintiff in one of their lawsuits in nsa surveillance. that is something we have not talked a lot about. if they are masking it in other ways. i'm hoping those two things could be addressed a little bit. >> so i think the next fourth amendment and technology issue that is likely to get to the supreme court is fourth amendment protection for cell site data, the records that cell phone companies are keeping about where phones are located mostly in a historical context wherever a call is made or message received or sent. so that's my guess as to the issue that will get up to the

supreme court but it might take two or three years. i don't think there are other issues that are likely to get there soon at the supreme court level. but just to give you a flavor of the interesting arguments at the lower courts are getting -- are getting some attention. i don't know if in the earlier panel there was a mention of a case united states versus gania which gives defense counsel a lot to work with and that involved a -- was there a discussion of it? sorry. there were two searches in that case. one a search warrant in 2003 which seizes a bunch of information about mr. gania's customers and in 2006, the government has probable cause to believe that gania is in criminal activity. and the file has a copy of the files from 2003.

and they get a second warrant and they search the computers a second time with a second warrant and the second circuit says can't do that. why? well because when the government copied the files from gania's computers pursuant to the first warrant the government was allowed to get the data but there was a lot of other stuff which they overseized which they had to overseize which the government had in its possession. by continuing to possess that information that was aing seizure which became unreasonable at some point and the government was not allowed to use that in a subsequent case. one is that it's a seizure under the fourth amendment to copy files. that's one important holding there which i think is correct. and the second is continuing to hold on to a copy of a seized file is a seizure that is

continuing and at some point can become unreasonable and there may be use restrictions or some sort of requirement that the government delete seized files. that is not a holding i think we would have expected a few years ago. people had not been talking about that. so i think you know is copying a seizure? the implications of long-term storage. another issue i want to flag for defense counsel is when the government is obtaining contents of e-mail accounts pursuant to a search warrant they are very often preceding that with a 2703 f letter. this is a request that says please hold on to the contents of the account we are coming with a warrant later on. if the person might want to delete the files or if the provider might end up deleting them they are a preserved. it's a hold this stuff while we get a warrant. in a fourth amendment warrant

the police are allowed to do that. but the rules are usually that the government has to be getting a warrant. the seizure could be allowed for 24 hours. hold the package while the government gets a warrant. well the statutory rule is that the government can get that for 90 days and renew it for another 90 days. in a lot of investigations prosecutors upon finding an e-mail they send the f letter and are preserving every e-mail account involved in the case and come back two or three months later. i think that violates the fourth amendment. because the copying is a seizure and the holding is a seizure at government request and it's being held on to for a long period of time. and at some point the gania rule kicks in and even pursuant to a warrant that information can't be provided. as i mentioned earlier there is

the remedies problems. there is a good faith argument the government would have of reliance on the statute which may authorize that there is the rights versus remedies distinction again. that's an example of the kind of issue that i think -- defense counsel should be making that argument. when you have an e-mail case, you want to find out is there a 2703 f letter. is this the fruits of an unconstitutional seizure because the files were there because of the f letter? and that's one example of the kinds of arguments i think we're going to be seeing. >> i'm more of a doctrine watcher than a case watcher. i think the interesting trend is away from the reasonable expectation of privacy test, used less often by the court. it is relied on less often by the court. and courts. i sort of tried to stick to the first panel with the city of los angeles versus patel case. that's an important case that has been argued and not yet decided that will have a lot to say about what doctrine is like in this area.

ordinance in los angeles requires hoteliers to keep certain records of their guests. and make those records available to law enforcement for the asking. the records have to be kept in the lobby or near the lobby so that at any time of day, police officers can come in and gather those things. for strange reasons related to how the case arose, the challenge is only to the government's seizure of the records, only to police coming in and taking the records. but the case is important, i think, because it shows how poor the reasonable expectation of privacy doctrine is for administering the fourth amendment in this case. a hotel, not being a sentian being, doesn't really have any expectation at all, but it is plainly obvious that these are the hotel's papers and it is a given in the case that they're being seized. is it reasonable for them to be

seized for any reason or no reason at any time of day by law enforcement? i think the answer is probably no and what is interesting is how the court gets to that result. it will have a lot to say about things like nsa spying because this is basically relitigating the bank's secrecy act cases. in 1974 and 1976, after the passage of the bank secrecy act in 1970, the repair of cases that said businesses could be required to maintain information about their customers by the government, that didn't violate the fourth amendment, and then they could be required to turn it over later because they were -- the individual doesn't have a fourth amendment claim on what were business records. so it is a wonderful/awful two-step around fourth amendment protection for anything shared with a third party and that doesn't comport with the way life is lived today, where a vast amount of highly personal and private information are shared with third parties all day, every day. so that's -- patel is an important case to watch that

will tell us a lot about the future. >> yes, ma'am. >> tiffany johnson. i know jumana mentioned some of the civil cases and what i think we can expect to come down the pipeline. based on what we have seen, i think there is probably two issues that will continue to be litigated and probably -- and potentially remain barriers i think to addressing some of the larger programs outside of the criminal context. one of those obviously is standing. it has been raised and i think virtually all the cases, and the court, if you look at the government's arguments, withstanding, i think they're becoming more aggressive. in some cases they're arguing that not only would you have to demonstrate that, you know, your information was collected, you would have to demonstrate an actual harm resulting from that. the more secret information is, the more secret the programs

are, the more insurmountable that barrier becomes. and, you know, we think about the nsa surveillance cases, but for at snowden, i think most people accept we probably wouldn't have been able to get to the stage, the litigation it's been in. the second issue that has come up, you know, over the years, i think will remain an issue is the state secrets doctrine. and, you know, when -- even in cases where there is sufficient information to get to court, there are plaintiffs who, you know, potentially have a standing, the government's ability to really retain -- to under the state secrets doctrine, not reveal some of that information to the court and really undercut the ability to get to the merits of any of the arguments, you know, remains a problem. and so i would anticipate both of those issues continuing to be litigated and sort of remaining some, i think, the main barriers in the civil context. >> i apologize for cutting you off. >> no problem. >> tiffany johnson. this was mentioned earlier, but the litigation doesn't seem to

work. we can't get the discovery bluebook. state v. cooper said no you can't get it. so we have edward snowden, whistleblower. where is the middle ground besides trying to get it through the courts with criminal defendants you know we don't know what we don't know. so is it flipping someone and doj, a former prosecutor, coming out and bringing the manual with them? how do we get this information that they won't give us and that we're not able to get through the court system? >> i will say there is one middle ground. and that is state pra. state public records act request and, i mean, we talked a lot about stingrays for example. we know a ton about stingrays, more so than we did two or three years ago because basically people love talking about stuff. i joke around that at eff we

could write a blog post called stingray, stingray, stingray and add it 50 times in the body and it would be the most viewed blog post on our blog, right and, and we're going to work on that. and the reason that is is because you just saw a flurry of state public records act requests that got a ton of information about this. and so even though the foya hasn't been super successful, state pr requests have been very successful. you saw it on stingrays, a ton of it. it led to other requests for other forms of information about license plate reader data, a ton of pra requests to municipalities. the beauty with the state pra in a lot of states is the process is much quicker than in the federal foya and usually it has been our experience, at least, that -- and not just in california, but in other states, that all sorts of information gets disclosed. i would never see the light of day under federal foya. the nyclu just a couple weeks ago got a great opinion in a

state suit that they brought and a 25-page opinion where the judge basically said all of these stingray records are public today that i think the county appealed. but -- so, i mean i think that is one approach. the public records act works. foya works. foya can be tedious, but it works and pra is a good middle ground. >> i think another approach, sort of a hail mary, but it is relying on congress to actually do its oversight function. so in the face of a lot of the reports that came out of stingrays, you had, you know, 12 to 15 senators write to the department of justice, to the department of homeland security asking questions, questions about how they're used, what the policies are, what the restrictions are, and i think really leaning on congressional offices to make public the responses they get to those requests. and maybe even have congressional hearings so that there is at least some type of public debate as another avenue. and there is always the speech

and debate clause. all it really takes is one member of congress who wants to reveal something and they can go ahead and do that. and so, again, it is a hard avenue. a lot of members of congress may not necessarily be interested or willing to do that. but there is the ability to use public pressure to potentially get information in that way, which, you know, in other contexts may not be available. >> sorry, to add one last thing real quick, another approach is to go through the state legislature. i mean, and i'm sure aclu had the same experience that eff has had, in the last two years, the number of phone calls from state legislative offices who want to talk about these issues and not just, like, stingray, but about digital search and seizure, license plate readers, all of this is blown up and, you know, state legislative offices have a role to play here. i have to credit the utah affiliate of the nacdl who got an amazing bill passed to their state legislature, i think about

a year ago, that basically put a warrant requirement for everything, like, metadata, 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 as the footnote gets bigger and bigger of states that have 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 remedies, 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 on c-span 3, president obama speaking at an event marking the tenth anniversary of the office of director of national intelligence. the constitution project honors twitter and senators patrick leahy and rand paul for their constitutional rights. and later, a look at the

negotiations over iran's nuclear program from the u.s. institute of peace. leaders in europe have recently promised to triple funding for operations in the mediterranean sea. conflict in libya is driving much of the migration into europe. the brookings institution examined the crisis and its effect on its neighbors. this is an hour and 25 minutes. my name is beth and i'm co-director of the brookings project on internal displacement. for the past 22 years we've been doing research on internal displacement and i think this is the first time we've organized an event focusing specifically

on libyan. migration in europe and although we'll be focusing on that as well. we have a good panel for you today. we're going to begin with megan bradley at my far left. megan does development settings and political science in montreal. she's done a lot of work on transitional displacement and reconciliation but from our perspective, she's almost coming home. she worked for us for a couple of years on internal displacement. we still miss you a lot megan and it's really nice to see you here with us. >> thank you. >> megan is going to speak about the research based in doha. and then we'll talk about the embassy of tunisia, kais darragi who has worked in a variety of settings throughout the middle

east, most recently, london tokyo, before coming to the u.s. in 2012 on displacement in libya, something to be considered. we'll then turn to shelly pitterman, the united nations high commission of refugees and has worked for many years in different settings from headquarters to the middle east and now in washington where he focuses on the issues in the caribbean. but you and acr have been quite visible in the last week or two with what is happening in the mediterranean and i hope shelly can put this into a broader perspective. displacement within a country has consequences far beyond the borders of those countries and i think we'll be seeing that as we hear the panel lives discuss today. i hope you are busily and megan,

welcome. tell us about your research. >> well, thank you so much. always nice to come home. especially when the weather here is much better than when it is in montreal. i'm particularly happy to have the chance to share with you today some of the results of a recent study on the displacement crisis within libya and across the libyan. ibrahim shar kia is with the doha center and the other is a tunisian reservelger and journalist. huba and ibrahim as it informed the study i'd like to start out by acknowledging their key couldn't contributions to the project. the report is not just focused on the flow of migrants across the mediterranean. it's focused on the displacement

affecting libyans themselves although they are clearly interrelated dynamics and i look forward to speaking about that in the q & a session. so just to start with the numbers and an overview of some of the displacement dynamics that we look in the report the population, as i'm sure many of you know, is 6.2 million. a small country. after the fall of the gadhafi regime, some 550,000 libyans were uprooted within the borders of libya itself and in addition, an estimated 660,000 libyan sought shelter in tunisia and egypt. this is a sizeable population of a relatively small country. the majority of idps uprooted in the violence that accompanied the revolution were, for the most part, able to draw on their own resources to return to their homes promptly after the violence concluded. there was, however, a smaller

group of about 50,000 people who ended up in a situation of so-called protracted displacement. these are individuals who even today have still not been able to return to their homes. the greatest proportion of this population is a group of about 40,000 people from the town of twerga. perhaps some of you have followed the details of this case. but this is a situation in which the residence of this town who belonged to a ticket nick group were accused of loyalty to gadhafi. in retaliation, militias attacked the town and virtually destroyed it and arbitrarily displaced the entire population. the u.n. has called this a war crime of itself and a war crime against humanity. so the majority of these idps

who are relatively cohesive and vocal group are living in idp camps, prince plea in trip poly and benghazi. with the violence we've seen in 2014, there's been, in addition to this core group a whole new waves of people who have been forced from their homes. so the best estimates that we have is that there are some 400,000 libyans now uprooted within the country. it's important to stress though, that because the majority of international actors pulled out of libya in the summer of 2014, there have been really no regular updated assessments of the size and characteristics of this population so 400,000 is very much a rough estimate. what we do know for sure is that many of those who are currently uprooted in that libya have been subject to multiple displacements so they've been forced from the communities in which they sought shelter and still unable to return to their

homes. and it's also clear that the almost complete lack of international assistance for idps in libya at the moment has pushed many of these people to situations of deep i am pof verbment and extreme vulnerability to the violence. in terms of those who sought shelter outside of libya, we also saw relatively prompt returnments after the conclusion of the revolution in 2011. however, we do see -- and i think mr. darragi will speak to this -- we see a significant portion of the population remain in exile primarily in tunisia. now, many of these individuals are assumed to have some degree of affiliation with a loyalty to the gadhafi regime. this has made them unable to return to the country because of concerns of retaliatory violence. in thinking about this population, it's important to stress the vast majority of these people have never been

involved in any kind of violence associated with the gadhafi regime. instead, this is more a case of guilt by association, people being labeled as loyalists by virtue of family associations or having that label applied to them in the context of local power struggles. it's a very complicated case but it's important to recognize that this is not a group that is uniformly in any way responsible for violence or human rights violations. so in addition to this group, which has stayed in exile for a longer period of time, there has been, again, a major surge of movement into tunisia and egypt since the summer of 2014. we don't have good numbers on this population. in the summer, the foreign minister of tunisia suggested there were 1.5 million in

tunisia. a smaller group has established residency but it's very difficult to assess the scope of the population because libyans don't require a visa to enter tunisia. it has generously kept its border open throughout the crisis and so you have a situation of people using their own resources to travel into tunisia and they have not, for the most part registered as refugees although a sizeable group of the population would qualify for refugee status. so in effect tunisia has become a host state although they don't receive much international support. this is something i hope we will discuss further. if we think about the crisis to the displacement taking place across the middle east in north africa at the moment, it's striking how little attention the situation has received, particularly when we're thinking about the displacement of

libyans themselves and not just the issue of migrants and asylum seekers trying to escape to libyan shores. i think that this lack of attention to the libyan situation is significantly due to the fact that libya is a relatively well-resourced court and there's an assumption that libyans have their own resources to draw on in order to address their needs for housing and food et cetera. this has meant that, up until now, there's been relatively low costs of the displacement crisis for european states and for the u.s. but what i want to stress is this reliance on the displaced person's own resources is not tenable. what we saw in our research and interviews with affected populations is that yes some people are receiving, for example, regular pension payments from the government despite the ongoing payoffs which is quite remarkable but

many don't. they are eating into their own resources approaching situations of increasing i am pof verment and many of the idps and exiles have protection that money alone cannot resolve. this means that the kind of neglect that the situation has received is not i think, something that can continue into the future. what we saw in our research is that many libyans in tunisia are effectively trying to live under the radar. the government has been generous in terms of keeping its borders open and enabling this informal protection that libyans have accessed to date. the government has pledged not to return libyans while the violence is ongoing and has enabled libyan children, for example, to go to school some are able to access medical care as well. but what we see in countries around the world is that this kind of hospitality does come at a cost when we're talking about displacement situations that are

expected to be protracted and that's certainly the case here. so, for example, we see rents significantly increasing in many tunisian cities, which is leading to tensions between tunisians and the libyan exiles. many of the libyan exiles who we interviewed for this study reported that they live basically in perpetual fear of a policy change that would see them be forcibly returned to libya where they fear for their lives. this sulthggests there's a need to how the international community can better support tunisia for the capacities as a host state and to provide secure and reliable protection to those within their borders. so, just to conclude, in terms of responding to and ultimately

this situation, resolving the crisis in a sustainable manner without looking at the broader conflict resolution and peace building in libya. increased security is obviously the essential precondition to stopping displacement and to resolving the predictament of those forced from their homes and across borders. what we found in our research is from the perspective, return is their preferred solution to displacement and this is presumably also the preference of the many states, national organizations that are involved. what we see in other cases, though, is that as displacement becomes more protracted people's preferences and plans can change. as the situation continues, it will be important to continue to have open dialogue with the displaced about their preferences. and to make sure that their opinions are closely taken into

account. while returns are possible i want to close by highlighting three quick points that will need to be kept in mind moving forward and looking towards an event resolution of the situation. first, it's absolutely imperative, it goes without saying, that returns must be voluntary and take place in conditions of safety and dignity, as is required under international law. the flip side of this is that while returns can't be forced, they also can't be banned. so it's important to think about how to overcome, for example, the obstacles that have prevented the people from returning to their homes. we need to think about the relationship between transitional justice, reconciliation and ongoing displacement situation in libya. transitional justice processes in libya have been effectively suspended with violence but i think there are many lessons to be learned from past failures of the processes eninitiated in 2011. the isolation law instituted in

libya was problematic because of its punitive nature. this is an opportunity to take stock of some of the shortcomings and have a clear sense of the way to move forward in the future. and last it's essential to think about how immediate support can be delivered to idps and exiles in ways that lay the ground work for durable solutions. though even return is not an immediate possibility, there are ways that they can be assisted to help people come out from the shadows and not experience entrenched marginal lie zags, which is the risk that exiles face at the moment. to this entails, for example, ensuring libyan children take up the opportunity presented to them to go to school. many are still not actually enrolled in school. this is just one small step that i think is an important part of making sure that this population is not locked into a situation of protracted displacement in

the longer term. so, thank you very much. >> thank you megan. a complex picture, protracted displacements, new displacements within the country the surrounding kournts and further abroad. we will go to kais darragi now. >> thank you very much. we like to think of libya as -- unfortunately, it's a problem for the whole region but it's an internal problem for tunisia because of the interconnection and very close relationship that is cultural and economic. after the revolution in tunisia and evolution and start of the evolution in libya, we have received over 1 million libyans. most of them are in our cityings but we have had around 90,000

libyans in refugee camps. the success of the libyan revolution was good news to tunisia because many of the libyan refugees went back home and we all hoped that it would be stability and opportunity for everybody. unfortunately, things did not turn out to be very easy for everybody, for the tunisian process, too, it was quite long and painful but for the libyans, they are going through a much more complex and painful process. right now we have -- it's not easy to give figures -- precise figures. we have an estimation of more than 1 million libyans living in tunisia. most of them we could call them refugees. most of them are relying on their own means, on their savings. and more or less, they are living in very good conditions.

the tunisia law allows libyans free circulation to tunisia, freedom to establish business and to be in tunisia like any other citizen. so this is a quite positive picture. in terms of repercussions to tunisia, i would start with the good news, the positive. the libyans come with capital inflection influx and help the economy, about 1 billion euro injected into the economy. but unfortunately this positive picture does not -- could not hide the negative impact so we have the pressure that we have on the tunisia economy in other aspects. you know over 1 million -- that is more than 10% of the tunisian

population -- and population increase 10% increase of the population with nonproductive citizens that would have inflationary pressure on the tunisian economy and tunisians are feeling that. obviously there are other concentrations but the blame is not to be put on this demographic but there are other consolations. it has contributed to, as megan has just said, to a strain on schools, transportation systems and most importantly -- and this is being fair to tunisia, is that they put more pressure on subsidy systems, food subsidies, energy subsidies. that is something that is being fed. other negative aspects are

related to security. the proliferation of weapons and we have concerns about smuggling weapons and it's taking place in libyan. it creates some kind of precautions about the influx of libyans in tunisia. we have our home-grown security concerns and terrorists, too, and there is a connection between all terrorists regions throughout the region. so this situation is more complex because at the beginning of the libyan revolution when there was a surge of libyan refugees, the tunisian army did not have many assignment. whether it was security or in terms of organizing refugee camps. but now the tunisian army is

quite small and it has so many missions and it is fighting against terrorism in tunisia. it has a task of protecting borders. it does not have the capacity to play the same role as in 2007. so these are some of the aspects we have. but apart from these money and the urbanite and middle class refugees in tunisia, we have a problem with third nationals. it started in 2011 and we have around 200,000 subsaharan africans who came for refugee and stayed in tunisia. most of them have run back home or have been adopted in other host countries in europe.

some of them, but not many, are still in tunisia. the concern is that we hope the situation in libya will improve. the national dialect will come to a positive conclusion. but tunisia and the whole region has to prepare themselves for the worst. we hope that in august 2014, when the fighting intensified in egypt to after the killing of 21 egyptian cops, there was a surge of new refugees of a border crossing. that obviously alerted the tunisian authorities and signaled that we have to be prepared for any new surge. the tunisian economy is not in the same shape as 2011. the army is not at the same readiness as in 2011.

and, to be honest in tunisia, there's a sense of humanitarian fatigue. there was a huge stance of solidarity with the libyan people in 2011 and other refugees, there was a sense of willingness to contribute to help and to protect the generosity but even within tunisia itself, there were so many complainers of people moving to regions offering support, donations, now people with the economic situation are not in the same kind of attitude. so these are some of the challenges that we are facing and, as megan has said that we are facing alone without any international support but i think the minimum is to try to work on emergency plans to provide not only support but support in terms of management

and procedures to deal with an event that is possible with new refugees. so do i stop here and maybe we can deal with questions later on. >> thank you very much. and let's turn now to shelly pitterman. >> thank you very much beth. it's really a pleasure to be here. my conversation will start with three perspectives one with libya in specific and as we must, with any refugee situation, look at the neighborhood and then the region almost by definition. but in the case of libya given the security situation and our presence in libya is naturally quite constrained, which gets to some of the points megan mentioned about the level of assistance that can be offered to the displaced persons and, in fact, to some 40,000 refugees as well who are, according to our

last count in libya. mostly in the tripoli area. we've had to withdraw our international staff. we've got about 30 to 40 national staff in both benghazi principally in tripoli as well. concentrated in various neighborhoods because, as you said, they are very department on family connections and they have basically been obliged to go it alone in the libyan mess. we work through some international ngos, like international medical corps the danish refugee council as well as the libyan red crescent and some few national ngos that are able to get things accomplished. so we continue to try to keep a presence to provide some minimum, you know, material

support to work with the individuals and respond to individual protection needs but there's no illusion here that anything significant on our part is effectively changing their situation in a big way which i dare say is very often the case with displaced populations because of the nature of the conflicts that they regrettably find themselves in. libya is a more extreme example of that. i guess in the current map of conflict and internal strife. so we watch carefully and optimistically the work of the special representative of the secretary general to find political solution. apparently, this is a slow and complicated process. it's happening in multiple countries, dealing with multiple

actors and thereagain i think patience is the key. and in that rather sad landscape, tunisia is a pearl reception of asylum of understanding and so naturally all who care are very grateful for the excellent support that's been provided by tunisia. when you think of the tunisian case, i, in my background think as well of lebanon and other countries that have been impacted by the surge of instability and insecurity in north africa as well as in the center of the middle east around the syrian refugee problem because there are relations -- there are relationships here. and there's been a lot of focus on how lebanon has been impacted

by -- in particular lebanon, by the incredible number of syrian refugees and i guess we also have to think about tunisia in a significant way. and we can provide, as an international community, direct support for relief to refugees but, you know, as you've said, they are a part of the community in many ways. they are being integrated through municipal services, health education, they are living in rented buildings and they are working on the savings that they've had, the resources that they were able to bring. but as far as this is a protracted displacement, those resources will run dry. and when that happens we'll find ourselves in -- and it's happened sooner in lebanon because of the dramatic quality, the war in syria. when that happens, those people

will suffer more -- more clearly and it will have a more dramatic impact on tunisia. so we have to i think, already anticipate the problems that will come with exclusion with poverty and with the fact that they are not tunisian and, as you said tunisia already had quite an experience receiving tens of thousands of foreigners, including refugees on its territory and dealing with them in a most -- in a most hospitable way. so the high commissioner's been looking at this question and advocating for a more proactive approach to development. this is not a relief situation. tunisia is a middle income country just as egypt on the other side.

therefore, not necessarily eligible for the types of grants that would normally come from development agencies and international financial institutions like the world bank. it doesn't -- it simply doesn't qualify. but we were trying to make the case and i guess this is a very effective platform for doing so as well that it's in the collective interests of the global north and of the people of tunisia and of libyans as well who are impacted by this, that we should think about creative ways to help affected countries to engage in structural and bilateral and multilateral support that we shouldn't have to wait until the crisis becomes -- well until the problem becomes a crisis but engage more proactively from the

get-go. tunisia is a case in point because of the economic hardships that you mentioned that are facing the country in terms of gdp and so on but there are other examples around the nigerian situation, camera roon mali lebanon and jordan are other important examples as well as turkey, to a lessor extent, where development institutions and development resources that's the key, can be leveraged to provide more support not only to help countries of asylum but to give more space and helpfully address this problem which i think is more critical of hospitality fatigue, humanitarian fatigue so there is a more concrete and short-term benefit beyond the cooking pots and the blankets and the very puntctual support

and we've been looking for creative ways to make that happen and there are some opportunities in the months to come through the g-7 conversations and the next annual meeting of the world bank with whom we've been working closely on this and we hope that there will be advocates in this room and elsewhere to help find the key to a more creative and flexible approach to concession nal loans that recognize in the context like tunisia the openness that you've shown as a country and as a nation to refugees from libya and from elsewhere. the third piece that i'd tlik very quickly mention of course, is that the havoc in libya, the vacuum of authority, the insecurity and the instability creates a a pathway, however risky it may be for syrians and

others to transit, to make their way to safer shores in the north, on the one hand, and then also for some of the 40,000 or so refugees themselves to exit. and so we have seen from libya over recent months and years an increase in the outflow of both people and also -- i call them both people, not to conjure of images of years ago and that's what they are. we've seen on the tragedy in the mediterranean last week that they run a terrific risk in doing what they do. it's not a choice. it's not a poll. they are not economic migrants most of them. they are forced to flee because of the circumstances in their home countries. it's a tragedy within a tragedy, in effect, that they've had to leave syria or artria or other countries from which they have fled to seek asylum in libya or

to transit through such an environment and be at the behest of traffickers that are able to flourish in such an environment in order to try to make their way to europe and elsewhere in order to find safety. so i hope we can talk more about that but i just want to abuse it with my open time to try to draw the length between libya, the neighborhood in north africa i didn't speak about in egypt but the same principles exist in general but tunisia's open border policy is clearly something that we're very appreciative of and also to make the link that it's the broader region and it has a global impact. thank you very much. >> thank you. and thanks to all of you. before we open it up for discussion, i thought we might just have a little conversation amongst ourselves and maybe

start with you megan. we know from experiences that the longer people are displaced the more protracted the situation the less likely they are to go home. are there steps that might facilitate the return of libyans from tunisia and elsewhere? >> i think there are steps. one issue, for example, that certainly will need to be considered is an issue of restitution. this is going to be a very complex process. there always is when there have been large-scale when people have lost their homes. in libya it's going to be all the more complicated because the restitution claims are intertwined with the practices of the gadhafi regime over decades. the regime would use the allocation of land resources as a way of playing different groups off of one another and this, of course results in very complex, overlapping claims to the same properties. so in terms of thinking into the

future when we can hope to see this situation sorted out, the restitution piece is going to be a big part of that. i think that there's work that can be done in terms of forward planning for strategies to address that situation. that's just one example. i think that there are a range of ways in which there can be effective forward planning you know, it might seem idealistic at this moment because the security concerns are obviously paramount but i think it behooves us to do what we can in the situation that we are in at the moment. >> i want to turn to this issue of hospitality or compassion fa seeing. fatigue. everybody i know in the humanitarian sector is exhausted. you know, running from one crisis to another and trying to raise money and -- i mean, it just -- in this situation, tunisia gets very little international attention and i'm

struck by the fact that you've had this generous hospitable reaction to refugees from a neighboring country for several years now. and -- i mean, is there anything that the international community could do to recognize the tremendous efforts that you've done to try to address that compassion fatigue? >> i mean this discussion of compassion fatigue is occurring all over the world. really it's complicated further by a sense of disillusionment, with people who thought that overnight the situation would change they would have economic opportunity, employment for everybody and very high standards of living overnight. of course the economy was very slow and painful. there's a sense of disillusionment at least. there is now a sense of

political pride and what tunisia has achieved and, to be honest too, there is disillusionment about the international community and sometimes our neighbors. they thought that they were generous above their means and that they made sacrifices but the hospitality was not returned. when there were possibilities in these countries, tunisians were not occurred as -- were not considered immediately to have some job opportunities. so there is it a sense of general fatigue that is both because of the effort that is being made and the long time that this effort is being made but also because there's a sense of disillusionment. in terms of what can be done, the international community could help. the libyan authorities could

also help because one of the issues that tunisian authorities have discussed before is that we have libyans that are here but they are benefiting from subsidies. we cannot limit subsidies to tunisians. they are welcome to our countries and we ask, in return, maybe some kind of financial aid, a subsidy, particularly in the energy sector. it did not work but now the situation is worse with infighting in libya itself. the international community, i mean, we always hear about these complaints, italy with the number of refugees and economic migrants. but as you have just mentioned it does not compare with what lebanon is doing without

complaining with tunisia is doing. they receive 5,000 or something and all the press and all the country is about that country. they are receiving millions. over 10% of population are refugees. so in a sense, there should be more international responsibility, a sharing of costs, sharing of sacrifices. that has not taken place but i hope that things will prove that even in the interest of -- what you have with these countries, maybe the influx of migrants. >> just to jump in on this question of compassion fatigue there was a really interesting piece of public opinion research that was done in march by a french and tunisian firm working in cooperation with the foundation and this research found interestingly that when tunisians were asked to identify their top two ways in which their government could help to

respond to the libyan crisis 72% of respondents picked refugees from libya as one of the two ways to respond. on the one hand it's a great testimony to how people do continue to maintain a very generous spirit despite this kind of compassion fatigue and yet the population was split almost down the line on the question of whether libyan families should be able to integrate into tunisian society. there was a lot more resistance to the notion of hospitality going further than just keeping the border open, which i think comes back to this question of hospitality fatigue and how hard it is to sustain these kinds of open policies in the long term. >> and if i may? >> yes, please. >> and regrettably, if you look at the world map today, the situation's only going to get worse. and so i think that, you know the conflicts are proliferating. there are more conflicts.

every month there's a new emergency. we've just declared moving away from this particular region. we've just declared a level one emergency in rwanda. who would have thought after we engaged in a repatriation program. only to suggest that the nature -- the nature of things these times reflects increased conflict, more violent conflict. you spoke of the beheading of the -- just more unpredictability more impunity and less management of existing conflicts. they've become more protracted. so we have protracted emergencies in ways that we didn't have before. and beth you know from your long experience in refugees that an emergency lasted six months

not five years like in the middle east now. and so that's why we think that it's really important to think in bigger terms because the humanitarian financial system is broken. it cannot be -- it cannot sustain this kind of commitment and already we are satisfied with a -- you know with what we can do when we're 50% funded and we have had to make some very serious choices. but when it gets to structural support and issues relating to services and host countries, we can't wait to engage the ent international community in that reflection and it's not just a question of being nice or couple passionate. there are security issues for states that are -- that are next to some of these failed states where if there's a risk, it needs to be addressed in a he have proactive way, in a very

big way and that requires more than just a few projects. it requires a more systemic and sustained structural approach. >> this idea of support, i don't like to be selective and accept the first part and reject the second but if you asked me the same question, i would respond the same way. we think that the idea of integration is not good but it's not because of rejection. i think it's rational kind of behavior. because if you say we would like to have them integrated, there's an inclination of failure. i think it is more rational in the sense that we wish them success and they are working here and we hope that they will have a positive solution in the near future. i personally would think this way if asked this question, rather than rejection of integration. but even before the revolution i mean, now we have let's say

we have 1 million refugees but even before the revolution at all time we have always found 1 million libyans in tunisia, coming for two years for medical care. so they are part of society. it's always there. and better conditions for good purposes and for good reasons but in this case now it's not a matter of choice. >> and one question more and then we'll open it up for discussion to you, shelly. are european governments doing enough in responding to the exodus from libya. many of us thought a wonderful italian initiative ended. is something like that needed? >> the -- >> not to put you on the spot. >> that's why i'm -- it was perceived by europe to be a pull factor and without too much controversy, it's pretty clear now that in the year that's

followed, the numbers have increased, the numbers of deaths have increased on the high sea and so marinorstrom was a good initiative from italy and should have gotten more support from europe generally. but that's that. it is what it is one could say, and now there's the tritan alternative approach which is focus more on border control, border management. yesterday the european council decided to triple the investment in the tritan operation which is -- i guess it's a fair reaction to what has been happening in the month of april, especially with the last tragedy. most of you should know by now that 900 people or more died in one single accident.

1200 people have died already on the high seas since 1276, since the beginning of this year. it's not a problem that is going to go away and now certainly with the seasonal -- with the season being as it is there will be more boat traffic and hopefully there will be more rescue but it can be said that germany and sweden in particular have been remarkably generous in their approach in particular for syrian refugees coming to sweden and to germany as asylum seekers directly or through programs of reset reset resettlement and visa and family reunification that would allow for more access legal, safe

secure access to refugees and particularly to european states on a more generalized and equitable basis. that, unfortunately, did not come out of the european council decision yesterday although there is more -- there is movement in that direction but no firm decision in that respect. there's still, for very good reason, a focus on trafficking and on smuggling and there's important in and of itself because it represents risks, of course, to migrants and refugees. but it doesn't provide a safe alternative to those people who are forced to flee to find security and safety. >> open it up for questions and maybe take several at a time. if you could introduce yourself and we'll start over here,

please. >> i'd like to -- bill loress. i'd like to press further on that point and on the economic piece of this, i agree conflict is the main man problem here, not just regular economic deprivation. if you look at the fact that most tunisians work in the economic sector, libyans are pushed to work in the informal sector, it is informal flows of labor, large numbers of flows come from west africa and not just mali but senegal, if you look at the numbers. we have a lot of informal economic activity here. my question is when the u.n. looks at livelihoods crises, how to deal with refugees, how do they deal with the informal economic sector piece and constructing economies that work. and for megan a quicker

question. you alluded to the tunisia figures and the egyptians often say they have more libyans and you pointed out it is tied to the gadhafi, those tied to the regime. my question for you is what precedent is there, what models are there for external reconciliation? there are a lot of libyans that aren't going to go back until they feel there's safety in going back, so how do we deal with international dialogue with exiled population that fears to return. it is like the problem inside but what are the models. they won't come back until there's some -- >> take a couple more if you can stand up, helps to hear better. this gentleman here. >> thank you. michael boyce.

thank you for your presentations. a question regarding idp response. we see in other settings where idp populations are less accessible, like somalia syria that humanitarian organizations often use remote control mechanisms working from a neighboring country and using particularly local actors, civil society, local ngos to distribute the aid within the country. of course it is never a perfect solution, especially when it comes to ensuring proper protection for idps, but i wonder if you could talk about the extent to which this is being used or considered for the libyan context. >> the gentleman in the very back there. >> independent consultant on humanitarian issues. a comment and question. first, as someone who has often pointed to flaws, it is only

fair to give them credit for the reporting you have done. in the annual reports over the last several years. unhcr has consistently reported on the number of deaths at sea of people trying to flee of horn of africa and northern africa to europe and other parts of the middle east, and on an annual basis estimates are in the two or three thousand a year perish at sea. so this is not new. the only difference this last week is they were all on one ship. if the 900 people were on four different ships and died 200 a piece, it wouldn't have been in the media and we would not be hearing about it. this is not new. and they had this in the reporting several years, which leads me to my question, my primarily to shelly but the

other members as well. this fleeing by boat, in libya does unhcr and implementing partners have any leverage to influence the most dangerous and abusive practices of traffickers. similarly, have you had any success in raising awareness among would be asylum seekers and migrants before they depart libya about safer alternatives to reach their destination. thank you. >> we have complex questions. invite anybody to jump in and answer. question on the relationship of informal migrants fits in with asylum seekers external reconciliation, question of unhcr and others doing remote management to work inside libya

and does unhcr have any trafficking within -- >> give some of it a go. perhaps in direct response to the question about the labor sector, it is not so much in countries of origin, so to speak, that we would engage. certainly in countries of asylum, we are trying to get more involved and hear the buzz word, the keyword, the official word is resilience. so for example in the context of syrian refugee response for the first time and in a very collaborative way, hopefully it will be effective in terms of generating new resources. we have talked not only about responding to the refugee piece

of our work in the countries of asylum but also resilience for the host community and putting into place certain activities through undp, through other development oriented organizations to respond to the impact of large numbers of refugees on the services in the host countries. and livelihoods and helping refugees and people in the host community to keep up income generation. what we are already seeing quickly though this gets back to the earlier point i made, these are inadequate responses because of just the availability of funds. even if we begin to tap into the development pool of funding, there are inadequate responses to the kinds of issues mentioned with respect to tunisia and lebanon where you have real structural challenges in a big way that impact on national

security in the short or medium term and in these areas what we're going for is important, it's essential, but insufficient in terms of really keeping asylum space preserved and also keeping countries that do provide asylum secure. so that's i think the first piece. the second quickly i mention, we never denied that the movements by sea are mixed whether in the caribbean or red sea or east pacific. the mechanisms which are lacking in all four examples for identifying people in need of international protection. and dealing with that according to international and national law on the one hand and those who are migrants addressing

their concerns however that's done by iom and by host countries and if it is according to law returning them safely to their point of departure or to their country of origin. those mechanisms are just not in place anywhere frankly in a systemic coherent, predictable way, so that's why the high commissioner took the initiative last december to have a dialogue, an international dialogue on protection at sea, which was well timed to begin to have all states think about well, what are the mechanisms that need to be introduced in order to provide those protections on the one hand and protect state interests on the other. not that they're mutually exclusive by any means. just quick reply on the remote management for idps, it is a very modest as i indicated,

megan may have more to say about this. like i said, we have our international presence out of tunis. we have national staff in tripoli, in benghazi we work with ngos, national and international, to do what we can. the program is underfunded, access is very limited, and so there's no pretense that what we are doing is anything on the order of the cross line operations or for that matter cross border operations as well in the syrian context where other idp emergency situations. and with respect to jeff, thank you very much for your observation. in fact, we have always together with iom spoken about that to the extent that we can count them we get this information from coast guards, so they're not our numbers but we publish them because they're part of the movements of people of concern or potentially of concern.

i misquoted the number of deaths on the mediterranean. since january of 1776, so that's a number that i should have more easily remembered. 1296 in april but the numbers aren't as precise as we pretend. several dozen in the caribbean this year that we get from the u.s. coast guard, from bahamas, turks and caicos coast guard as well. my short answer to your question is i don't know but i don't think so. i don't imagine that we have relationships as such with traffickers in order to be able to give them some guidance or training on best practice. i don't think that's likely.