these issues. one of the benefits of addressing some of these fourth amendment issues before they come to the courts and even as the courts are seeking to litigate and address these issues is we are in some ways unencumbered by antiquated and constitutional doctrines like the third party doctrine and fourth amendment case law. and delineating and creating the right policy prescriptions to fourth amendment issues in the digital age. so i want to talk really briefly about a few things that have been happening. two, actually two things that have been happening. and one, i think, that is going to happen in the future that's going to be pretty important for the development. we are part of the due process coalition. we are still dealing in some respects with the embryonic stages of reform and trying to

update the statute to codify a warrant for content standard as many of you know. it makes distinctions, i think, that don't comport with users' reasonable expectations of privacy today. at the heart of service providers, it's this notion of 180-day rule where contents of your communications are subject to the warrant requirement up until 180 days and thereafter at the 181st day all of a sudden can be subpoenaed. all right today in the sixth circuit companies like google require a warrant for all content regardless of the age, regardless of where it is stored and when it has been opened or when it has been opened. there is legislation that is pending in congress has been pending. right now, it has over 250 co-sponsors in the house of representatives. if it were voted on today in the house, it would pass.

i have a lot of confidence that the same results would be true in the senate. not the least of which, it helps to pave the way for future as many of you know in the next couple of months, section 215 in the usa patriot act expires at the end of may. there's been an important and robust debate around the fisis statute and how it ought to be modified. those who have taken an independent look at the section 215 program have concluded pretty much with unanimity that it ought to be reformed. whether it is for sort of, you know, reasons of effectiveness or legality. and, you know, fortunately, senator leahy and others have taken a broader look, not just focusing on section 215, but also on other fisa authorities that have been used to collect

communications, meta data in bulk. so we've been encouraged and supportive of the usa freedom act, which was introduced, i think in 2013 and gone through several different iterations. but would address other authorities under which communications and metadata has been collected in bulk or could be collected in bulk. we're very much looking forward to that debate, which is going to happen soon and hopeful to come to the right result as far as that goes. finally, let me just address one topic which is not so futuristic. and how we are going to deal with government access request, vis-a-vis the internet of things. there are a lot of fundamental questions around the types of

rules that ought to apply. and it isn't entirely clear as a threshold matter whether the electronics communications privacy act does apply. i would submit that for remote computing services like google in many respects, it will. that the type of information that is collected from internet of things devices, and you think about your nest thermostat or drop cam inside of your home. that would suggest a lot of detail about you about your habits in daily live and ought to be subject to the fourth amendment. ought to be subject to the warrant requirement. there are sort of questions about entities that might not fit neatly into the category of remote computing services. and so i think there's quite a bit of room for some smart thinking among folks who are in this room and also in congress to think about forward looking approaches. to think about how we would

fashion a statute in 2015 based on the expectations of privacy that people are entitled to have and they do have today. i'll stop right there. >> that's great. thank you for teeing up all of those fascinating questions about reform, that's the electronic privacy act in congress. about the foreign intelligence surveillance act reform and access to internet of things. and thanks to your sense that the 24/p drone surveillance would violate the fourth amendment. we have a circuit split between david and ahmed. do you think that 24/7 drone surveillance would violate the fourth amendment according to current supreme court doctrine? >> has this little drone found me in my bedroom? >> only in public. when you get out in the morning, it follows you. it follows you to the bar. it follows you to the church, to your political rally.

but it does not go into the home. it's only surveillance. >> so this little drone. when the supreme court was considering u.s. v jones, the government, that was the case where the court said if the government attaches a gps device to your vehicle and then uses it to follow you around for 28 days that violates the fourth amendment. but it said that violates the fourth amendment because there was surveillance plus the trespass. and that was the key to the case. but the government in that case said that doesn't matter fourth amendment doesn't protect you because you're on the public roads. exactly zero justices accepted that argument. that gives me hope that the drone that follows you around is violation of a fourth amendment. >> so eager for your answer that i had your jump in without introducing you.

of course, greg, the senior council director of the project at the center for democracy and technology. that's enough of an introduction. >> you left out the website. it's www.cdt.org. >> don't forget the plug. >> listen, i -- it's easy to come here and be pessimistic about the future of the fourth amendment in the technology and digital age. it's kind of easy because you look at what courts decided in the past. when i was at the aclu about 20 years ago, used to call the fourth amendment the incredible shrinking fourth amendment. well, i'm not so sure that the fourth amendment is going to continue to shrink. and i think there's reasons to be optimistic. i want to talk about the reasons to be not so optimistic.

some of the doctrines that do shrink the fourth amendment are themselves growing. the administrative search you have to endure in the airport before you get on an airplane. it used to be a quick, less intrusive magnatom ter to see if you were carrying a gun or other metallic object. now you go through an electronic strip search machine that reveals information about what's happening underneath your clothing. the fisa court has issued an opinion that indicates it believes there's an exception. and as you've heard throughout the day, we're leaving digital footprints behind all the time. and these digital footprints are held by third parties. and the third party doctrine makes it so that the fourth amendment often doesn't protect those footprints. that's why we should be worried. there's three good reasons to be

optimistic. and the first one goes to what i would characterize as the supreme court's growing embrace of the notion that technology poses challenges to privacy. and it's unwillingness to apply by analogy its decisions dealing with things that weren't so technological, if you will, and couldn't store a lot of data. for example in 2001, the court ruled that use of thermal imaging to explore activity in a private home requires a warrant. tracking a car for 28 days by attaching a gps device requires a warrant. and then most recently in riley versus california, the court ruled that police can't search the cell phone on an arrestee

without a warrant. the government went into that case and said, well, when they pat you down when you're being arrested and they find something in your pocket, they can pull that out and find out whether it's something that could be dangerous to the policemen or not. and they can make you -- and they can examine it. well, the court said cell phones are different. they carry a lot more information. and so i think the court's growing ownership of the notion that technology can facilitate privacy invasion and therefore needs to be maybe given a little more protection is a good sign. another good sign is having david over here on the panel. i say that because business has engaged in the last few years in a way it hadn't in the past. turns out, privacy's good for the bottom line. so there is a good -- it builds trust and it's essential for

technology companies to sell their products to have that trust. there's a powerful new constituency in the debate in congress and even some of the countries are bringing, i think, extraordinary lawsuits. google challenged surveillance -- i'm sorry, not google, yahoo brought an action. >> it did. >> that's right. >> the first amendment case. this was different, became section 702 of the fisa, of fisa. and yahoo under threat of a fine of $250,000 challenged a directive that the government issued to yahoo saying that they had to turn over information pursuant to this program. that did not operate and did allow for disclosure of content. and the last thing to mention that gives me hope is

encryption. the idea that people can encrypt their data to make it so the bad guys can't get it. and if they do get it, they can't use it well. and the strong protection that encryption can provide and the ease, the increasing ease with which we can encrypt our data. >> wonderful. thank you for those optimistic observations. and also, your sense that the 24/7 drone surveillance in public would violate the fourth amendment because the court in jones rejected the government's claim that individuals have no expectation of privacy in public. justice waynestein will be the final vote. and let me introduce him. well, the lower court gets affirmed if it's a 2-2 split. >> you'll have to make a

decision. >> no, the moderator has no views on the future of the fourth amendment. the chair of the white collar group where he focuses his practice on corporate and internal investigations and civil and criminal enforcement proceedings. he's been an assistant u.s. attorney in the celebrated southern district and the celebrated district of columbia where he's handled many important criminal prosecutions ranging from public corruption to gang prosecution cases. he has been director of the executive office for u.s. attorneys, general counsel of the fbi and chief of staff to the fbi director bob muller. wow, that is an impressive background. and justice, does 24/7 drone surveillance in public without a warrant violate the fourth

amendment? >> well, thanks, that's a nice question. nice question to duck. first thing i'd say is this. when i listen to you describe this drone capability 24/7 full-time surveillance on individual. i can tell you, i just drove back in from a college trip where i'm taking my oldest to go look at a college because she's about to leave and i'm facing the prospect of not having my little girl around for me to keep an eye on. i'm thinking that drone looks really good about now. i might be talking to the president about borrowing it for the next four years. i hear greg's argument and it's a sound one based on the decision in jones. it's very important in the jones decision they have the trespass element to seize on. and the problem is if you don't have that, if there is a decision that there's an expectation of privacy without anything more than that, then there's a huge slippery slope argument. you know, 24/7, high detail viewing by a drone. people might say, boy, that is intrusive. and you're learning about

everything i do in public and whatever it is. eight hours of my day are out in the public domain. that's a lot for the government to know and compile and then synthesize and analyze. then you think, that might make intuitive sense. how do we do that? and how do we distinguish that from 24/7 police surveillance? that's done every day of the year? and we want done every day of the year. we have to make sure he's not going to blow up a federal building. is that going to be constitutional? is that going to require us, nope, go get a warrant for this. it's done obviously much lesser important context than terrorist threat investigations, as well.

so that cctv. you can think of myriad situations where right now we think, oh, yeah, there's no need for a warrant. if there's a decision like that, slippery slope will be the big challenge. so i think, i don't see us getting to that point. i see the drone being sort of the perfect argument of the 24/7 -- the perfect argument for finding that greg is advocating. i think it's just the court, especially this court is going to be likely to get there unless there's some element to that decision that is going to prevent that slippery slope. in terms of just the general remarks. she gave me sort of marching orders about today's panel and what i should be discussing and sort of generally a look forward to, you know, where i see things going with the various programs

being debated now and what i see happening. and i'd like to talk about not what the constitutional interpretations are going to be and what the constitutional rulings we're going to see over the next few years, but rather, where most of this debate is going to be fought out, which is in the policy realm in front of congress. just to step back, we all think every time the new issue comes up, we think it's the first time we've wrestled with this. but maybe earlier panels have made this point today, i'm sure they have, but this is an ongoing issue, right? technology evolves, fourth amendment drafted, couple hundred years ago or more and it's got to adapt to this new technology. we saw that with the telephone and the cast decision. we saw that with bulk data being, you know, assembled and accessible and then the smith decision saying there's no reasonable expectation of privacy and, you know, we've seen that in the e-mail context, in fact. you know, we have the fisa statute that was passed in 1978 before there was e-mail and then e-mail came along and suddenly the sort of the concepts that -- or the operational underpinnings of fisa were now sort of turned on their head.

you were just focusing on telephones. you're focusing on e-mail traffic. and a lot of overseas, you know, overseas to overseas e-mail traffic coming to the u.s. and did it make sense that when we wanted to tap into the overseas to overseas communication we needed to go to the court and get an order. and that got, you know, there's a healthy debate about that and that results in the fisa amendments act that allowed the 702 collection that greg was talking about. geolocation technology and the jones decision. the courts have to deal with them. the public has to deal with them in this kind of context and think about how we want to balance security versus privacy. i shouldn't say versus privacy. i don't think they're adversarial, but security and privacy. and then most importantly, congress actually has to decide

where to draw those lines inside the constitutional lines that determine where the government can go and under what conditions in terms of surveillance. we're having this debate, the issues raised here going dark, which is fbi's term for what will happen if encryption is allowed to deny them access to content of communications. will there be a dramatic curtailment by congress of the government's surveillance capabilities? and my answer is, not likely. not a dramatic one. there will be curtailing, but it's not going to be a major scaling back. and there are a couple of reasons. nothing terribly profound here, but one, it's politically difficult for congress to do that. members of congress will have to look at what will be the potential outcomes of their votes and what their exposure is of the vote. and when you're talking about national security authorities,

if the government can come and branch can come in and make a strong argument for the authority, the power that they've been given that authority and why they should maintain it and give examples of how it's been useful, it's politically difficult for congress to really scale back and, you know, and deny the authority. that was passed in 2008 when the popularity ratings were not high. he was against congress that was, you know, skeptical of security authorities. and that, what was a very strong piece of national security legislation went through. and especially now, i think it's difficult for congress to do that. you know we've got isis rampaging across the middle east. we've got the threats in the aftermath of the arab spring

that -- on a scale that are greater and more dangerous than before. and so i think politically it's going to be difficult for there to be a dramatic scaling back that's not to say there won't be changes. and this is to play into greg's optimism. i think there will be. the changes, not so much a denial of authority, but rather an application of further safeguards, further limitations, more oversight of the various existing authorities that we have right now. we saw that, the classic example of that is with the patriot act. remember, the patriot act was passed six weeks after 9/11 in october 2001, gave 22 or so new authorities or added to different authorities. done hurriedly, which was wise to do and in the intervening four or five years between then and 2006 when it was reauthorized, there was a healthy debate about the need for these authorities. the political environment post crisis to one that was, you know, healthy skepticism.

ig reviews. this kind of thing, i think this is what we're going to see here. most of the authorities debated now are going to survive. in that kind of fashion. the one outliar just to make one last point is the encryption issue. and i say it's an outlier because it doesn't fit that paradigm so well. it's a little more binary. and i'm not an expert. but if you read the literature, at least what i see in the newspapers, it seems to be a more binary choice. you can encrypt or can't encrypt. and that's going to be a tough p one. that would be terribly detrimental to national security and law enforcement if there is a large category of content that's beyond the reach of government content surveillance. that's going to be an interesting debate to see. and that's a high stakes debate. >> great.

thank you for that. and thank you for flagging a series of issues in congress that some of your colleagues have mentioned, as well which all involve access to data by law enforcement and private companies that makes it 3-1 against the constitutionality of the 24/7 drone surveillance. and just to sum up the discussion i've heard, david said that the supreme court in the case said is there an expectation of privacy in public? greg said that the court in jones said that we do have some expectation of privacy in public. justice alito said, that reveals great information about us for a month violates our expectations

of privacy. ken mentioned that jones emphasized that there's an important element of trespass in jones where the gps was affixed to the bottom of the car and justice scalia made that the center of his opinion, but it sounded to me you were reading the tea leaves thinking maybe four or five justices, if you add justice sotomayor and maybe some of the others, as well, might think that 24/7 drone surveillance crosses a line. although, you like justice scalia are worried about the slippery slope. and there was an interesting

exchange where he said a month is too long, but a day is okay. what's the magic line? that leads me back to ahmed. tell me one more time why you thought it would be okay in light of the persuasive arguments your colleagues have made on the other side. >> well, i think in joan, this concurring opinion that greg referred to, the alito's concurrence had more to do with aggregation than individual collection. and so, again, you know, to what extent is the -- is there a drone following you around? and that is getting stored some place in aggregate for a long period of time. or is it just following you around and surveilling you in case you pull out a knife, it will zap you with some electroshock? i don't know. in terms of -- i just don't see -- i forget, actually, david what your argument was.

and if you -- i just don't see the current doctrine not allowing something that is -- it's not the 24/7 that will -- that is, that takes the government action past constitutional limitations. in fact, you could probably analogize that the drone is just like a cop waiting outside i don't have of your house, et cetera. the speech would be a bigger deal breaker for the court. i think the idea of having any machine or camera or surveillance -- in fact, there are studies that show individuals working in national security, cyber security, more recently, journalists that cover national security issues are saying they feel that they cannot, they feel chilled in their speech and their ability to get source information, et

cetera. i think a lot of this stuff may make sense. it wouldn't pass the laugh test to say, i feel like i should have reasonable expectation of private outside, unless the information was being aggregated and processed, unless it was definitely being stored, et cetera. i think you need more than just inspection. >> i see. so greg, i'm going to ask you to respond. but your view is if the drone is following you and collecting the information, but it's not being broadcast or aggravated, it's okay. but if the drone is following you 24/7 and being broadcast live on the internet, that is a different matter. and that would raise concerns under jones?

is that what you're arguing? >> no, i'm thinking if it's aggregated that is, that would support the alito concurrence and i can take a ride that way. but the reason i would -- i look at that more of a potential use of information of collected information issue rather than just the collection. and once it's been collected, it's sitting around and you use it, essentially, process it and you have an outcome, i think that's a due process issue. >> i'm trying to understand, the drone follows me around 24/7, and like a reality show is being broadcast on the internet. does that violate the fourth amendment? >> i think that passes the fourth amendment's test. i don't think it passes the first amendment's test. i think that's government conduct that essentially chilled speech at the end of the day. >> great, your response to this distinction between aggregation and collection. >> i thought when you were

talking about aggregation, you meant aggregating the drone data with other data. is that correct? >> yes. well, aggregating it with itself and then with other data. you can have a buffer that only stores three seconds of information at a time in the drone, and to the extent it detects any illegal activity, that puts you in the jacobson world of -- >> this is a month long surveillance. >> for the analysis, i'm going to think of aggregation as taking the drone data, adding to it other data, and then drawing conclusions from it. versus persistence which is taking the drone data for days and days. and my view is persistence alone is going to be enough to trigger the fourth amendment protection. and i base that view on the jones case and the five justices who seem to think that the trespass didn't really matter so long as there was persisted surveillance even though the case did go down on trespass grounds.

i want to flag to folks a really interesting discussion about exactly this at the privacy law scholar's conference on june 24th, 2012. just search on this from jones to drones how to define the fourth amendment. >> right. you can't hold back those clever scholars. now, i want to -- this was a good discussion. i want to flip the hypothetical, which is not so hypothetical and, david, ask you what if google did it? and to be nice, of course it wouldn't be google, but it would be facebook. then it's fine and you can answer it. mark zuckerberg decides i'm going to start a cool new app, called open planet and collect all of the current surveillance camera data in the world and broadcast it live on facebook and also encourage people to broadcast live from their phones allowing say ahmed to follow me

24/7 with his iphone and broadcast that 24/7 on the internet. if zuckerberg did that, he'd say check up on your friends and learn cool stuff. whatever. if that were to be done, obviously the fourth amendment does not apply to google and facebook, even though google and facebook arguably have more power over privacy and free speech than any king, president or supreme court justice under current statutory law and you're telling us a lot about the complicated debates in congress. could facebook broadcast on its own private 24/7 camera feeds that would allow 24/7 tracking of anyone in the world? >> so i think part of this would depend, you know, i can't envision a scenario where a large technology company would put a product or service out like this without describing what it was doing and having specific privacy protocols behind it. so i would surmise that if such

a product service application existed, there would be pretty robust controls around the collection and use of that information and that, you know, when those -- at the point those representations were made, there would be legal restrictions on the ability of a company to collect and use that information or to make material changed. that's more of a function of the privacy policy itself than it is with respect to statutory law. you know, i think there are situations, too, where it would be implicated to the extent that information is being disclosed to third parties in way where the original user hasn't consented to that type of disclosure. so, i mean, i think there are other statutes that would likely come into play here. but, look, there's been lots -- there's been a lot of discussion about whether, you know, whether there ought to be a baseline privacy law, for example, that governs what companies that aren't currently governed by other types of privacy law. legitimate discussion to have. i do think, though, it is a separate and distinct discussion from the types of debates that

we're having in washington right now around government surveillance. and i think it's incumbent upon technology companies like google and facebook when we are, you know, venturing into new territories that have new types of privacy implications that we do give users the control that i think they expect when there's uncertainty around these types of applications. >> a thoughtful answer. not so hypothetical in some sense. i was at a wonderful legal futures conference that google sponsored in 2007 and andrew who was then chief of public policy said he expected within a few years google and facebook would face pressure both from the government and from users to aggregate public and private surveillance cameras and broadcast them live. we all talked about it and he thought google would choose not to do it. what i want to know now under current law is if facebook chose to do it without restrictions, would it violate current statutes?

ken weinstein, could someone make the argument that we're all voluntarily turning over our geolocational information where these camera feeds to third parties when we walk down the street and therefore private companies can broadcast them to the world without restrictions? >> yeah, i think you took the words right out of my mouth. i think that's a perfectly legitimate argument. especially since don't have a lot of signs saying this area covered by cctv. you decide to go ahead and walk down the street. you've accepted the consequences. i'm not necessarily advocating it as the right result. but i think as a statutory matter, i haven't gone through the cataloging of statutes that might relate to this as it relates to a private party. but as constitutional matter, if it's a nonstate actor and there isn't a directly applicable statutory bar, seems like that would be a sound argument.

>> greg, that sounds like an outrage. how could this be possible? and in particular, describe specifically the movements afoot in congress to address precisely this question. and if they're not afoot, what laws do you think are necessary to prevent mark zuckerberg from this invasion of privacy? >> i don't think there are really statutes or bills that are moving that would address something like that. and i think there is a significant hole in the extent to which consumers have privacy as against corporate collection of information. but i don't see it being plugged in a meaningful way by a baseline privacy statute in the near future. you know, jeff, let me put a twist on your example. maybe you were going there

anyway. so all this data's being collected by a company. and then the government says, hey, that would be pretty useful for our investigations. hey, we want the realtime feed, or hey, we want to be able to query the data base at will. what controls that right now? and really, we're in murky land. i don't think that much does. and i think that as privacy advocates, we need to start thinking along the lines that ahmed is talking about, which is not just protections are there at the collection stage. because often times when a private company is collecting, they won't be there. but at government access stage when the government says we want to buy it or the government says just act like every other purchaser of information from this database. >> that's great.

and greg points to this danger in addition to the invasion of privacy of facebook broadcasting the state live. the government could also seize it. in your initial thoughts, you drew this really thoughtful parallel between the fourth and first amendment. i love that because it was so brandeisian. whenever i have a free speech question, i ask what would brandeis do. and his incredible opinion in the wiretapping case, he like you noted the intersection between fourth amendment protections against virtual searches and first amendment protection for freedom of thought. and he thought it was so important for citizens to be able to develop their faculties and form their opinions in order to be immune from government surveillance. i want you to take up this

facebook example. it's not the government, it's facebook, although government can buy the feeds. do you think the 24/7 facebook broadcasting violates current law? and if not, what laws would you propose to constrain it? >> so, it doesn't violate current law because you consent out of the fourth amendment. in other words, you've provided your consent to google -- sorry -- >> facebook. yeah. >> google would never do that. >> to facebook. i think this is what europeans refer to as data protection, which i distinguish from privacy in my own line of thinking. i think there's a difference between the idea of invading someone's expectation of privacy. and in our case, collecting data. and i think there's a difference between that and then using the data for a variety -- one has control over that. and that is a distinction i make in my head in terms of a doctrinal distinction. but i do find that when you kind

of separate, it's a lot easier to have a separation about this stuff. so you've given your consent, the company takes your data, you no longer have a right of privacy. but maybe you ought to have a right to control the data. or to -- or a right for your data to be protected. and maybe the government then could get involved and facilitate that or regulate that. but i think another thing that greg mentioned is sort of -- what these companies can do with their analytics. so google -- well, google and facebook. google can parse through and categorize youtube videos and tell you what all google, youtube videos have somebody wearing orange pants and raising their hands. facebook can tell you if somebody's depressed before they're clinically diagnosable

with depression. when you think about these things from a law enforcement or intelligence perspective, they're very useful tools. and so at what point will -- at what point will that be purchased or requested or asked for or compelled. that's sort of a question i have about social media. >> we're positive, of course, google would never process these feeds. but google unlike facebook is subject to a privacy protection from europe and that's the right to be forgotten. and i won't hide the ball on this. i just debated the european privacy commissioner and believe this represents the biggest clash between american notions of free speech and european notions of privacy in the digital age. why don't you tell us about google's response the right to be forgotten and other

regulatory pressures that it's facing to, from europe to protect privacy. >> well, spoiler alert, we lost that case. didn't go so well for us in the european court of justice. and i think we're pretty laser focused right now in trying to implement that decision in a responsible way. i don't think, you know, i don't think it'll come as a surprise to anyone to hear that the issues are challenging in terms of trying to figure out when information is, you know, irrelevant or outdated in the context of an individual's quote, unquote right to be forgotten. i know that's a term that some europeans take exception to. it's become sort of the lexicon of the discussion. this is not this is not, there's tho analog to what we are doing right now. i think it's an uncomfortable

undertaking in the sense that there is from the broader public, a sense that there is a large international company that is making decisions that effectively are going to determine what is available and accessible on the internet and what's not. it's certainly not a position that i think we want to be in. i think from a small need democratic perspective, it's not the right result. that said, i think we're trying to figure out how to implement this decision to do it in a responsible way that's reflective not only of the right to free expression in europe, but also, the right to free expression here and there have been some controversies that have surfaced around whether the right to be forgotten ought to be extended to dot com and it's an issue we're continuing to have discussions with data protection authority, but that we believe there are real sort of philosophical and legal issues around the reach of the ruling and terror tor rall way to reach dot com.

there are issues now too, around webmaster notice, the extent to which publishers of websites will receive notice when there are right to be forgotten requests that we have either processed or those who have pursued them are successful with and the extent to which those notices can be specific or be general. webmaster says what you're see ing here or can we say i should say, what you are seeing here in the search results may not be completely reflective of what's out there. i should say as opposed to saying when you search on a specific term and there's been a request that's been processed, at that point, you say some search rumts are not going to appear here. there's been less controversy with the former example than the ladder, but those are a couple of examples we're grappleing

with. there are serious implications here. i think there's been suggestion that which hasn't gone far, but the notion that we ought to think about you know how we can e fek wait our right to be forgotten in the united states in a way that comports with the first amendment. huge challenge to do that though. >> we jumped right into this debate, the right to be forgotten gives any user in europe the right to demand the deletion deletion, from google, yahoo! with any information about them. without first google or the european privacy commissioner decides it's not irrelevant, outdated or is relevant to some b public purpose. so if during this panel, someone is tweeting i'm a really boring moderator, after the show i could object in europe this violates my right and demand this post be deleted from google. then google has to decide whether i'm a public figure or if the tweet is relevant and if

the guess is wrong, it's liable for relatively modest time but if pending data protection regulation passes the fines could rise to what is it, up to two or more percent of your annual income, which is more than $50 billion. pretty heavy penalties if you guess wrong about this unfair tweet i'm trying to have removed. >> i think that's at least under the data protection regulation and types of fines that might be imposed. >> can, don't answer if you don't want to engage, but most american americans support some type of right to be forgotten. is it a good idea and should congress pass it? >> yeah, i can't classroomim to be an expert in this area but it strikes me as impossible. almost impossible to actually implement it. and you're right it just flies

in the face of the idea that our culture, our political democratic culture has been based on the idea that of the free dissemination of information and the marketplace of ideas is nourished by more information as opposed to less, so, it seems a little bit -- doesn't really fit with my vision. >> great. any take rtakers? >> on the braneis question, this great book by neil richards and he traces his evolution because he wrote the original article defending our right to privacy in 1990, which looked a lot like the right to be forgone. . it allowed people to sue if there was truthful, but embarrassing information that harmed their dignity. he thought hard and decided free speech was more important because people had to decide for themselves what was relevant then he wrote these beautiful

free speech opinions about the necessity and favor of free speech over privacy. greg, given the fact no one is arguing for a right to be forgotten, what is the most important of the pending law laws in congress that you think are necessary to address one big problem that everyone identified which is this third party doctrine, the notion that as the courts have said by surrendering information to one party, i've abandoned one for all-purposes. you talked about the cell phone search case, but the government might argue that when i walk down the street, i'm voluntarily surrendering by geo location information to verizon or at&t or whoever my carrier is is and therefore, verizon can share it with the government or anyone else.ing to address that big problem? >> first, david mentioned one key bill. that is the bill to require warrants for content stored with

third parties. i agree with david, i think that legislation's time has come. it's got strong support. i'm hopeful it will move this year. there's other legislation that would make it so that government would need a warrant to get information generated by the use of mobile devices like cell phones. whether it's gps information or whether it's cell site location information, whether it's post, meaning going forward or whether it's stored. that legislation isn't as far along and i think we need to have more debate and more hearings about it. complex issues come up. law enforcement does these things called cell tower talks. who's at 3rd and main on the day the bank at that corner was robbed? which phones were there? they get a dump from the cell tower and that lets them know which phones were there.

why would they want that? could be thousands of people. because then they ask, well, who was at 2nd at water street on the day the bank there got robbed? and all of a sudden, they look for which numbers were at both locations because it was the same mo at both locations and then all of a sudden, they have their suspect. so, is that going to require a warrant and what would be the standard for that warrant? then there's the one time ping. it's different to say where is greg now versus where was greg at each moment for the last 90 days? i think it's hard to draw that line. and so my inclination is to say you need a warrant for location information, period. but others will want to draw that line. so i think that the location legislation isn't as far along.

i think it's worthy of consideration and more debate and i'm hopeful that it will move forward after the warrant for content legislation goes through. the other pills that are pending, ken kind of eluded to the section 215 surveillance legislation, my own view is that congress is facing an important decision about whether to continue to permit, bulk collection of information about every phone call, virtually every phone call, made to, from or within the united states. and congress has forced itself to make a decision by the sun setting of the statutory authority for that program. i think that's going to come up as well. i think those are the biggies but i don't want folks to miss one other debate. and that is the cyber security legislation. there's legislation pending right now that would allow

companies to share what are called cyber threat indicators that are derived from your communications, with the government, not just for cyber security reasons though, but also in particular in the senate legislation, also for criminal reasons. a number of criminal statutes could be used to trig they are volunteering of information from providers to the government. i think that's very dangerous i'm all for cyber security i think there's a flaw in current law that doesn't allow companies to share what they ought to be able to share. they ought to share but that the legislation is going way overboard in terms of describing and permitting the sharing of that information. >> great that's very helpful. let's get the panel's thoughts on the categories of debates that you've talked about. first bulk collection, then the

warrant for content and information and then some of the cyber security issues. ahmed, your counsel for chelsea manning, is a bulk collection banned by congress necessary or do you believe that bulk collection as currently practiced by the nsa violates the fourth amendment or at least one court has upheld? >> i think a ban is necessary because because, because i'm on the fence as to whether there's an issue. and in fact there might be not an issue, and so that's why i think, i think a ban is necessary for normative reasons. the examples that we give as to the harm, natural privacy harm that derives from bulk collection especially 215 bulk collection is a result of the use of the data. and again, i think that's a

distinguished collection in use. >> can we, saw recently that the obama administration had considered ending bulk collection before the snowden revelations, would have been have a ban harmed law enforcement and be a bad idea? >> why are you answering that one? >> yeah, why? >> legally settled moderation here. >> look i'm not sure about those accounts about how it was considered whether or not to end the bulk metadata collection under 215, not surprised it was being considered. i think those programs should always be subject to a cause benefit analysis but, i'll be interested to hear the follow on reports as people react to that initial report about how serious that consideration was. though, that does raise an interesting question, i mean, i think they're in the public

debate you've got the constitutionality and legality, constitutionality, whether that collection fits under 215, whether that's stretching of the term relevance allows for that bulk collection. and then you've got the question about utility, utility of the program. and that's really on the executive branch to make that argument. and it's important that they make that argument to congress, that really this is important. and defining this, what core of that authority do they really need? and at some level i think that argument can be made and the question then, i'm going back to slippery slope argument as an advocate for the government and in this situation i sort of am doing that. what is bulk collection? bulk correction is a broad term. once again like the 24/7 drone, we're talking here about the collection of millions and millions of phone calls so sort of a relatively speaking extreme form of bulk collection and the question, legal question is

under 215, is that relevant, every piece of the information relevant to a terrorism investigation? national security investigation to have all that. the argument is well we need all those telephone numbers in order to see those patterns the type of thing that greg was talking about in relation to banks and cell tower information you get all those phone numbers together, you can see oh this is a bad guy's number here and he's in touch with this number and that number, and that then helps you to potentially unwind a terrorist's cell. and the question is well yeah, but in all those millions of phone numbers the vast majority are going to be phone calls made by people who have nothing with terrorism and are innocent. well, that's true, and in that sort of extreme example, you say boy, the government's taking hold of all this information most of which doesn't really have a direct connection to terrorism, but, then take the scenario to a different level, smaller level. government hears that through

some intelligence channel that a terrorist just got on a plane from paris to jfk. don't know who it is. you want the government to immediately get the manifest of the passengers on the plane. there are 110 passengers on that plane. 109 of them have nothing to do with terrorism, one of them does. in order to find out who it is you want to before he blows his underwear up or whatever. and so, just at a practical level, you've got to think about what is bulk data collection. and there are situations where i think most of us would agree, boy, that's actually the kind of thing we want to do and do quickly and shouldn't require a warrant. >> we have a technical term for that, collection of all the names of everybody on the airplane, along with vifts. it's bulk-ish, collection. >> bulk-ish -- >> what happens in the case of

bulk-ish collection, right? they're not using an identifier to collect on that specific term. so it's not like a pin register all the numbers dial to or from a phone number, it's all the numbers dialled. all phones. that's bulk collection. so in that scenario, the airplane scenario, the key issue for the privacy folks i think is not whether you can get the manifest, it's what happens to all the other names on the manny fest that are of no interest. >> that goes back to the point, it's the use. i'm sorry. it's the use of the information and limitations. so it's not limitation on the collection on the front end but how it's used. and you know, the nsa went through great pains to say there are a limited number of people who can access it, purposes for which they can access levels of

authority for doing et cetera. so you know and checking to see whether his girlfriend's making phone calms to somebody he doesn't like. >> here's the problem, the fbi doesn't have a rule that says they have to throw out that data after they make the match. and that's really where the fight is. big part of the fight on the section 215 reform right now. make the match, throw out the data for the people who don't fit the match and save it for a little while while the investigation is happening and making sure that the terrorists cohort is not on the plane, i get that but at some point relatively quickly, after that assessment is made they should get rid of the data about the innocent people. and there's not a good rule about that now. >> david does google have a position on whether bulk collection should be reviewed or banned? >> yes, we do. we've been strong supporters of the usa freedom act.

there were several it rations of that bill last year, it's interesting to hear the discussion. i don't know candidly at the end of the day, from a functional perspective whether there is that much disagreement in the sense that there's been a lot of discussion around the bulk you know, the program and the broader communications bulk communications program. and the solution that has been offered is to require that the government use a specific selection term. it's part of the usa freedom act. it's also part of the ongoing discussions around surveillance of foreign legislation. i think there's been a lot of discussion about how to get that to the point where it doesn't permit bulked collection. where it doesn't open the door to the types of surveillance that we've seen in recent years. and at the same time gives the government the flexibility particularly in some of these cases and the hypothetical that can raise so that where they can't, for example, use a very

specific identifier whether that be an e-mail address or a phone number that they're able to obtain records. that enable them to identify and/or thwart a terrorist attack at the same time, to greg's point, the more the debate focuses on the use of that data, i think that heightens the importance of making sure that miniization procedures protect the privacy of that data for any subsequent use. those are the issues we're talking about, and with the usa freedom act, what we saw last year was that industry, privacy advocates, the administration, the intelligence community managed to get around this so there was not bulk collection. i would say that we don't need to start necessarily from scratch. we have a solution on the table that works. we have about two months to get it right. i'm hopeful we can go forward with that bill. >> the industry and google and

yet it didn't pass last year why not and will it pass this year? >> i think a lot of it had to do i think a lot of it had to do with the last november there were some process-based objections. it didn't go through committee first. there was an opportunity to pass it in the lame duck session, and there was a sense and understandably from some who felt like it should go through regular order. that opportunity is there now, and i think, you know, congress probably should avail itself of that regular order process to the extent that that's important. over 50% short of moving it on the motion to proceed. some of those in the senate who've supported that reform are gone, but if you sort of look at the numbers, it's it's difficult on the senate when you have to get to 60 votes. you have to bring along it in

some way. last year, it was the those who wanted to move that bill this year it's the burden of those who may want to simply, you know, reauthorize section 215 inform its current form, and i would submit that that is not truly in the realm of reality, and, you know, i think incumbent upon everybody to sit around a table and figure this out. we've done it i think to some extent already with the usa freedom act. what i'm hopeful is that folks can sort of recognize that the types of solutions are being forged here are relatively modest ones in the grand scheme. there are broader reforms that have yet to be undertaken. there are really important concerns i want to underscore very important concerns outside of the confides of the normal fourth amendment issues that we discussed about what types of rights, non-u.s. persons are going to have going forward. the internet is a global median it does not have borders folks

who are and the way that we operate our surveillance programs and can't seem to fathom why it is it that we focus on the rights of u.s. persons. that's an important debate. i think it's really important to get this right here because it does in some ways frame the terms of the debate going forward. >> ken you talked about how hard it is for congress to scale back powers to the executive once granted will the freedom act pass and should it? >> you know i actually i'm not a really optimistic that it will pass in the current form. especially given given the geopolitical events since last year. i'm not really sure that they would trend toward passage. let's talk about the other category of bills that greg warranted for content based

information and warrants for occasional information. >> i think on the in terms of the 180 day rule and whether you need to get a warrant to get e-mail content even if it's over 180 days and hasn't been opened. i believe actually that the department has come out, and as a matter of practice of getting, i believe they're getting warrants now as a matter of practice even though they're not obligated to. i think that will less, less up the speed on the geolocational information, but i could certainly see, especially in the aftermath of the jones's decision that it would stand a fighting chance. >> interesting. greg, do you agree with ken's analysis, and if so, why is it

that congress might be more willing to restrict private sector collection of data than to restrict governments surveillance? >> i don't see congress actually passing a meaningful bill restricting, at large private sector collection of data. the white house has proposed a rather weak consumer bill of rights recently. so i just don't see a strong one going through at least in this congress. now, on the usa freedom issue, i think it's an open question about what, i think some legislation is going to pass. it's going to be hard as david say for congress to reauthorize it arizona it is. and really, jeff, we're in a debate about to what extent will section 215 be amended to

prohibit bulk, bulk collection or to permit it in some circumstances, but more limited than not. i think that's the debate. i don't think there's going to be a completely by their question on that. and as for reform i'm pretty confident that there's enough support now to get it through. and from the government's perspective, all the large provider virtually all the large providers now not all of them, but virtually all of them are requiring warrants for content. they're basing that stance on a six circuit case called the war shack case where the case found that a warrant is required and no court has gone the other way. no circuit court has gone the other way. all the providers are lined ip behind that case and saying if you want content, come back with a warrant. so what's the big deal about stachtizing it? >> great. questions in a moment, but i want to take up the last big

issue on the table and that is cyber security and encryption i love the fact that your biography says you're a journalist accused of being a spokesperson for the hackers group. >> that's a client, yes. >> yes. are you in fact the spokesman? >> no, my client, barrett brown was accused of being a spokesperson. >> there's a big misleading. you were the lawyer. the argument against recent moves by apple and others to encrept data is that it makes it harder for law enforcement to get child molesters and other really serious bad guys, what do you think of those arguments? >> well it certainly makes it more difficult, but i don't think those are good arguments to prevent a maker of technology not to provide secure efficient, and robust technology to customers.

for me it's really open and shut. but, it's interesting because you've got a lot of different technologies being developed and having dual purposes for instance, the -- yeah, the notion is somebody mentioned it earlier, and the idea of sort of cloaking your online identity or using an nonmiezing technology so the computer on the end point from whatever communications you're making will not know where you're located won't know your ip address that's a huge problem for law enforcement. because law enforcement generally likes to go through friendly third parties like the isp. and so as a result of that, for instance there's been a, or there will be a modification of the federal rules of criminal procedure allowing fbi agents to hack into computers as a mode of search. now, when you apply that to

targets, whose location is unknown, almost 90% of those targets are going to be outside of the united states. so now you've got a situation where an fbi agent or a prosecutor with an fbi agent are making an application to a magistrate judge getting a warrant to conduct a hat, there is a nine out of ten chance that that hack is going to be abroad and it's unilateral you haven't got consent of that country. and so all the sudden you've got a magistrate judge and law enforcement engaging in what i would think as foreign relations. so, i guess, i'm telling the story just to sort of underscore the complexity of all these technologies, but also the fact that law enforcement is not our and should not trump everything. i would also note that this rule 41 modification would be used in general crimes. we're not just limiting it to national security. of course, cyber security is the

new national security. and so, when kenneth the great examples that kenneth gave on stopping a terror attack, those same exact type of scenarios could be presented in the context because of higher national security as an entirety. i'm wondering and that is the perfect slippery slope. so you've got a lot more information sharing between private companies and a very big indicator of whatever cyber threat information is i don't know what it is. it means that also being shared with government and at the same time, you're trying to protect for certain use of that information sharing such as anti-trust violation for instance. so a great deal of that has to happen at a black box.

some would argue that would make it private as well on the form of human exposure. we've got more information being exchanged or shared and analytics being conducted on that information. and then outcomes that are pretty okay to the naked eye. and for me, again i think that's, it's not just a privacy issue. it's also a a chilling of speech issue, but really a due process issue on the end. >> nice to draw those connections. david, does google have a position, first of all, what's google's reactions to apple's decision to encrypt, and what's its position on the cyber security bills? >> thanks, yeah, you know, so we, we are very much too sort of moving toward the result of

encrypting devices in the same way we've encountered issues with the performance devices that run on the ann droi operating system. it's a -- android operating system as many of you because apple has a soup to nuts organization. we work with different origin nam equipment manufacturers. we're very much sort of heading in that direction. you know i think just to take a step back, there was a tendency to view the movement toward and to end encryption as necessarily responsive to the snowden revelations. i think that oversimplifies the debate at least visa google, we've been working on various forms of encryption, whether that's sort of encryption and transit from the browser to google, and now obviously and to end encryption, but we were working on these things for quite some time. well before the snowden revelations. and i think, looking at surveillance is a common denominator is the wrong approach. look at it from a security lens

is actually the right approach. if you look at the number, over the last 15 years, the top complaint made to the federal trade commission is identity theft. we take that pretty seriously in terms of trying to think about the ways that we can protect our users. it is true that the snowden revelations in some senses have created, you know, additional, sort of if you want to call them sort of vectors for, you know for compromise the revelations have certainly taught us a lot about the ways that theoretically the government is obtaining data, and service providers have reacted in some ways accordingly, but this is a much more complex debate then simply whether companies are nsa-proofing or law enforcement-proofing devices. that's not what this is about. and in a lot of senses, it's, you know, one of the reasons that folks in the smart phone space have been doing this is

because of complaints around lost and stolen phones, and the fact that the vast majority of consumers don't, unfortunately don't unveil themselves to basic security measures to protect data that is stored on those phones. so part of that is about, you know protecting users, just, you know, with basic security. so that that type of data isn't compromised. you asked about cyber security, let me just say real briefly too, we filed comments in this proposed change to, to rule 41 of the federal rules of criminal procedure, and for some of the very reasons that ahmed was just mentioning, i just mentioned before we need to think more in our privacy policy debates about the rights of non-u.s. persons. one of the reasons we wanted to file is because of the concerns about how, you know, how these sort of cross district searches would be undertaken and in light of some of the network, sort of investigative techniques that we know are out there, and the fact

that the, the rule, assumes that the outset that the location of the electronic media or storage is going to be unknown. it is certain they there'll be instances where they will be located overseas and those indicate policy and foreign relations concerns. it was important for us in that respect ring to engage. on the security bill, we haven't,en we haven't taken a position on the bill itself. i will say that, you know, there are obviously some concerns about, you know, sequentially taking up a bill that has real concerns around privacy before we sort of take up surveillance reform legislation. so i would say that, you know particularly given the exprigs of section 215 coming at the end of may, that ought to be the priority. i also think that we should, if we're having a debate about cyber security, i think information-sharing is not in

and of itself a panacea. i worry that the debate has been sort of reflecting that as a truism whm that's not necessarily the case. i think we can have a broader discussion about policies around zero data vulnerabilities for example, whether those vulnerabilities are being disclosed to the private sector in a timely manner what are the government policies around that? whether those policies ought to be codifyied so that there is a clear bias towards sharing as opposed to stockpiling. i think that's an important issue and i'm hopeful we'll have that discussion too in the context of the broader cyber security policy debate. >> thanks for the thoughtful comments. i want to get to questions, but i have to ask ken, as a former prosecutor, are you concerned by the movement by apple and now we learn by google toward encryption? >> yes, i am. i'm very concerned about it. and, the government has expressed executive branch

expressed the concerns, the director on a couple occasions, most recently in congress was taking a very strong stand about the dangers of absolute encryption that puts contend beyond the reach of law enforcement, and he said a man who picks his battles carefully and calibrates the strength of his position and he did so intentionally in this case because of the seriousness of the issue. i think someone said earlier on, data security or communication security is good for the bottom line, and that's true, but terrorists are bad for the bottom line. and the reality is, there is the concern here is not that encryption might make it more difficult for the government to get information that might relate to terrorists or other threats. it's that this encryption could make it impossible. and so the battlefield here is not we need to give the government full reign and open season to go get, you know,

access this content, whatever they want. no, the question is, if the government goes through the process of getting a warrant, meets the criteria for a warrant, has the predicate information to get a warrant, gets a warrant, should they be foiled by the fact that that communication is encrypted? and, you know, it's we know what's going to happen. once a certain category of communications or providers are recognized as having encryption that's beyond the capabilities of the government, that's exactly where the bad actors are going to gravitate to. so the question is i've heard two arguments in the press about this, one is as a technical matter it's really not possible to put a back door or some kind of access that just the government can use without creating a vulnerability that others may use. and i, you know, that's a technical matter. i, you know, my first reaction is there's got to be a way to do it. that's really for the technical

people iron out. i've seen both sides of the issue play out in the press. the second argument is well gosh, if you did create a process like that the u.s. government, shouldn't we have to also do that for other governments? and i get that argument, and i get that argument for international, you know, multinational corporation, but at the end of the day, i'm personally looking out for the interest of this government and my feeling is this government needs that information. i see how critical content surveillance of communications is and just the counterterrorism fight as opposed to any other area of enforcement or intelligence operations and to have that put beyond the reach of the government could be very dangerous. >> thanks very much for that. we have about ten minutes for questions, both for your questions and questions submitted through g mail, with complete security and privacy i'm sure thanks to david. so, are there any questions from the audience? we can begin with the great

gmail questions. >> so there's currently three of them. i'm just going to go through all of them so you can take them on. the first one, it's another hypothetical, but what about less clear surveillance? consider a street level robot segue that patrols up and down urban streets, answers questions of lost pedestrians, on serves traffic congestion but face imagery and location information from every pedestrian it passes. though someone's given you a hypothetical. >> should we start with that? >> go ahead. >> what a great hypothetical. kind of real now it sounds name dropping, i was at south by southwest the other day, and there was a cool robot going down the street, i don't know what this is but there was a woman in some other city who was skyping at her computer and was walking down the street in this robot observing the scene. so the hypo takes further and the robot of this actual app is now recording information like a sort of roving google street

view and collecting and i guess, greg, is that any less problematic than the flying drone? it's the street level rather than overhead. >> again, for both i don't think that we have laws that really deal with either. the drone that can collect data 24/7 and follow an individual around no matter what their mode of transportation is seems a lot more intrusive to me than a robot that probably only moves a few feet an hour and can't really follow one person around for a long time. but i do want to follow-up on the encryption comments that ken was making. we are we have to be encrypting more and more data. every time you buy something on the internet, that communication, it has to be encrypted. if it's not, bad guys can get it, and get your credit card information, and then you're not

going to make purchases on the internet, you're not going to go to different places on the internet where it's not secure to make the quaeres that you want to make. so we are going to have more encryption. and we're going to need it. and i, i can't fathom, i really can't fathom congress coming up with legislation that would actually make communications and communications devices less secure. i just can't believe that they would do that at the same time, there's all this debate about cyber security. i don't think we're going down that road, ken. >> thanks for that. yes, sir. >> ahmed this is related to the proposed rule changes to rule 41 specifically i'm wondering what you think might be potential, kind of avenues of attack for defense attorneys in the future that are going to be, you know

defending cases where the fbi i mean, we've seen cases already where the fbi has been hacking into servers located abroad and unfortunately being able to, you know, get away with it. but maybe somehow under these new rule changes, when they do come into effect there will be some, some possible grounds for for attack from defense attorneys and, you know defending against this type of hacking. by law enforcement, i'm just wondering what you anticipate might be some of those arguments. >> so i think, i think one good argument, and of course it would depend on the method of attack so presuming that one very popular method of executing a network investigative technique is a phishing attack which is sending somebody an e-mail and duping them into clicking on something and then the malware gets installed on their machine.

at that point the fbi agent hacker, is in control of the machine. something like a phishing attack for instance might violate the fourth amendment's requirement for particularlity. and that is because you are sending, essentially your identifier is not the actual computer, it is somebody's e-mail address. and that e-mail address can be accessed from any computer, so if i were at a public library or if i were on your computer and i was the target i got a phishing attack and it, your computer gets infected and then they find some sort of criminal activity that you're up to. i think that would be a great challenge. i think the, the international issues and the territorial issues are not as easy to challenge, obviously because we've just heard throughout the

day that privacy rights abroad exist evenless than that do in the -- even less than they do in the united states. i would be hard pressed to find a judge that would actually register an argument that a i had a reasonable expectation of privacy being abroad for instance, or using this ano, ma'am miezing technology or b, the violation of another state's sovereignty and i think you might be referring to like the silk road case for instance. silk road case the fbi agents, well the fbi agents were alleged to have typed in a series of key strokes at the capcha page for the silk road and that that series of key strokes of equivocal to hacking the server.

sovereignty in hacking a machine abroad without taking their consent, and somehow that relates to a suppression motion somehow. of course, fundamental problem with all of this is the fact that you are you're asking for ante relief in a world where the exclusionary rule does not really help you very much. and professor kerr explained that all in the last panel. >> that sounds great. we have just four minutes left, why don't you give us one more gmail question. >> justice sonia reveals and the technology allows serges that

were once prohibitively expensive. to what extent does our right to freely associate and the chief availability of information effect the analysis? >> greg. >> so i think that it effects both fourth amendment and first amendment analysis. there is a chilling effect that surveillance can have on the exercise of free speech rights. but, sotomayor went even further than that quote that was, that they gave us. she questioned whether the third party doctrine, the doctrine that says when you entrust data to a third party, for example, to, so it can be transmitted in connection with the communication, whether the third party switches the data is protected by the fourth amendment continues to serve us well. so she -- it's a fascinating opinion.

she's questioning really the whole basis for law enforcement access to a lot of information without a warrant. and i just, i'm waiting for that location case to get in front of the court so we can see where the third party doctrine is going. >> i would love to continue this thoughtful nuance diverse and fascinating discussion but all have to end on time, and some of us have to get home for passover. so happy passover, happy easter and please join me in thanking our panelist for a discussion. [ applause ] >> here's more about the law, the supreme court heard oral argument in mcfadden versus united states, a case that tests how much knowledge a defendant must have about an illegal drug to be found guilty of selling it. the government's fight against what's known as designer drugs. they are chemical compounds not

listed as illegal drugs under federal law, but produce similar effects and have a similar chemical makeup as an illegal drug. the court is expected to decide this case by the end of the term in june. >> we will hear argument this morning, mcfadden versus united states, mr. russell. >> may i appease the court. the briefing has narrowed considerably the disappointment among the parties. we now all agree that the fourth circuit misconstrued the mens rea elements under the controlled substance analog. we further agree that the jury instructions actually given in the case were erroneous. instead, me and the government now agree that to prove an offense, they must show that they knowingly distributed it. the government may do that by showing that the defendant knew that the substance in question had the characteristics that made it an analog. where we may disagree is over the government's alternative

theory that it can and does show that the defendant knew that the substance was illegal or regulated. if the government means illegal or regulated, the substance would agree. but the government would simply lose because as is acknowledged, the evidence showed that my client did not believe that his conduct violated the c shah its. >> just to make sure i understand all that you're agreeing on you do agree that if the defendant knew that the substance was illegal under the controlled substances act or the analog act, even though the defendant didn't know the chemical structure or the particular effects, say that the dealer had handed him a box and said this is our new analog, which is illegal under the analog act, you'll agree that that is sufficient for a conviction. >> we do agree with that. and i think that is simply a special application of the general rule that the defendant has to know the facts that make his conduct unlawful because he

knows in that circumstance, the only fact he needs to know in order to know that what he's doing -- >> that sounds sensible to me. what about the expert testimony from chemist, is that still put on in the trial? does the government still have to show put on an expert so say well this is chemical modified and the jury sits there knowing that it doesn't have to listen to this? how does that work? >> they have to show that because the government has to approve that it is in fact an outlog. they have so both show -- >> but does the jury have to understand the chemical testing? >> they've got to make the determination that it is in fact chemistry substantially similar. i acknowledge that's a lot to ask of a jury. that's a lot to ask of a defendant. >> but it is the government's burden to show both composition in relation to the controlled substance. the government must prove but we have out of the way is that

the defendant now doesn't have to know you agree, the defendant doesn't have to understand the chemical structure. >> doesn't have to understand the chemocentral structure if the government can prove that the defendant knew that the substance was illegal under the controlled substances act itself. >> well the government is giving up a lot in this point, and i think you've just given up a lot. i would have thought, your position that you have to know that it's regulated under the chemical substances controlled substances act it seems to me is contrary to the proposition that ignorance of the law is no excuse. i didn't know this was regulated, you would say he was innocent. i thought your position was that you do have to know as in all the other cases in the mens rea area the facts that make your conduct illegal, you don't have to know it's illegal. >> that is certainly our principle position, we are willing to say however, whether you consider it a special exception to that rule or a

special application to that rule, if the government can show that the defendant knows that the substance is illegal under the statute of conviction, that serves the basic purpose of the knowledge of fact requirement. which is -- >> and if he doesn't know he's innocent. >> if he's ignorant of that law, he's not guilty. >> he's not guilty unless the government shows he knows the substance has the characteristics of an analog. ignorance of the law is not an excuse. they have two options, it can prove the facts, the factual knowledge and the way that this court described in stap ms and has applied in other cases involving prohibited items but we're willing to acknowledge if they can instead of that, show that he knew this was illegal under the statute that's good enough -- >> i take it that's the same aurnds the controlled substances act itself. is that right? that's the analogy is that you can either show the person knew it was heroin or you can show, well the person didn't know it was heroin, but the person did know that it was some drug that

was on schedule one of, in a controlled substance. >> that's right, and where we disagree is that it construes the court cases that say that. as saying the broader thing -- >> i'm sorry. you keep saying and knowing that it's illegal under the act, didn't have to know the act he just have to know it's illegal, that some regulates it. otherwise, he's not going to know what the number of the law is or the controlled substance act. >> well, let me be clear -- >> criminals don't care. they just know that this is, they may think it's something they just know it's a controlled substance. >> no. i would disagree with that. i think that's the principle disagreement we have with the government here. it's not enough to show that he thinks illegal or unlawful under a state law. >> the government would say, if he's selling it without paying the sales tax, he knows that

that's illegal. that's enough to convict him under the controlled substances act. >> potentially, i think that maybe the argument. we give the example in the brief of somebody who knows he's selling cuban cigars in violation of an inport bound. he knows in that case it's an illegal or controlled substance, but that knowledge doesn't equate. you want somebody that knows he's selling a controlled substance. simply because it turns out that the cigars have marijuana in them. you wouldn't say that he knowingly sold marijuana or even that the case has sold a controlled substance. >> let's talk about a analog, actually listed, and let's say that the facts are these, the distributor gives it to the person who's going to make the distribution and says, this is an illegal drug go distribute it. and that person is caught. now, is it, is that sufficient?

is that evidence sufficient to take the case to the injury so the jury can find the jury can decide whether there's circumstantial evidence that the person distributing the drugs knew it was a controlled substance under federal law as opposed to one of the few things that is illegal under state law but not under federal law. >> yes, whether to make that infor instance. in a case like this where the that he didn't believe it violated federal law or when the defendant is able to explain, i thought it was illegal because it was in violation of an import statute, then it's up to the jury to decide whether to believe that. if 2 does, it ought to include that mens rea wasn't established unless he can show that the characteristics that made it an analog. >> the supplier tells the dealer, this substance produces exactly the same affect as cocaine. would that be enough to satisfy

the mens rea requirement? >> it wouldn't be enough to satisfy it. it may be evidence from which the jury could draw an infor instance that the defendant knew it was a controlled substance under federal law. i don't think that they should. i think it's only partial evidence. >> you say he has to know the chemical makeup that causes it to be an analog, right? >> those know that or has to know that it violates -- >> i understand. he knows that, that's all he knows. now, under the controlled substance act, that would be enough. he wouldn't have to know the makeup of it, he would just have to know it's one of the named controlled substances. if, indeed, md3 is an analog, why is that not enough that he just knows what it was, and what

it was is an analog. >> right. i think that's parallel to somebody knowing that he has an ar 15 rifle, which is in fact a machine gun. and stapstaples said, the court said that's not enough. which isn't its name. which makes it a machine gun, which isn't its name. here -- >> but this isn't a rifle, this is in fact an analog of a controlled substance. it's not a proper comparison. >> with respect -- >> he knows that it is he knows the identity of it. and that chemical has in fact the characteristics that make it an analog. >> he knows simply the name of it doesn't tell you whether it's an analog or not. you don't know whether it's an analog, and the way -- >> that's true, and knowing that it's cocaine doesn't prove that you know it's a controlled substance. >> it does though. because the only fact that you need to know about cocaine for it to be a controlled substance is that it is cocaine. because that's the fact that makes it illegal.

it's listed on the controlled substance act and the schedules. so if it's okay you know everything you need to know based on the presumption that you know the law. >> suppose the distributor gives it to the person who's going to distribute it and says here, distribute this, and there's the actual chemical formula on the container and it's the chemical formula, excuse me for pcp whatever that is c something, h something, and so all the person knows. that's exactly what it is. the chemical formula. is that has he not committed a crime then? zblurnd the ordinary controlled substances. >> yes. >> i don't know. it depends i think on how it's listed in the schedule. i think the schedule might in fact list the chemical name, but if -- >> it does list the chemical name. >> then you do know the fact that makes the conduct unlawful. >> but you don't if the person has just arrived excuse me, from mars and has no idea what,

you know, whether it's legal or not. >> i think the basic assumption is that people know what the law is. they know what's in the schedules. and if you know it's in the schedule, and if you know the fact that's enough. >> what do you do with the actual facts in the case? that is the defendant gave names to what he was pedaling he called speed new up replacement, the listed now listed mppd he, these were supposed to be bath salts but there's no bath salts in the world that cost what those packets cost. so what what do we make of this advertising this to be? speed it up and selling it at a price that fits a controlled substance.

>> i think what a jury certainly could find it to reflect and the truth of the matter it is, it shows that he found a loophole to the federal drug laws. something was not on the schedules, even if it had drug-like effects, he could sell it at whatever price the market would bear. certainly the government can point to that kind of evidence to suggest that he knew his conduct violated the controlled substances. >> the evidence was enough to get you there, the defendant acted furtively or that he sold these for incredibly inflated prices, that all of that, it's not the thing itself. but it's evidence of the thing that the government is trying to prove. >> ting gets to the jury, but it doesn't prove what the government has to prove here which is beyond a reasonable doubt. >> i think the only thing that could possibly separate you and the government to see if it is separating you and the government is this question of what happens if the defendant knew it was illegal under

something other than the csa or the analog act? right? and that's the only point of potential difference. >> i think that's true with respect to our legal interpretationation. >> also you ought not to reach that because of its entire regulated status theory was based on the first brief on the merits in this court. >> wait a minute i mean, you do differ with the government on that. >> yes. >> assuming that the government cannot prove any belief in the gally, the government would not say it therefore must prove that you knew the chemical composition of what you were selling. and you say you have to know the chemical composition. >> right i think we're all on the same page. just to be clear about our position, i think the only disagreement about the meaning of the law between the government and us now is this question of whether it's sufficient as a matter of law for the government to show that the defendant believed that the substance was unlawful under some law under the csa.

they think that's sufficient, we think it's not sufficient. >> okay. >> beyond that though -- >> assuming it's not sufficient, what else does the government have to prove? i think you differ on that. >> i don't think so. i think the government agrees that one way to prove the mens rea in this case is to show the defendant knew the krark cystics of the substance that made it an analog. >> which means the chemical composition. >> yes. >> and who would that reach other than the chemist, the underwound chemist would gain a position to know that? but an ordinary person would not. >> i acknowledge that giving the statute, what i think is straightforward and traditional reading does have the effect of making it substantially harder for the government to prove that mens rea for an ordinary layperson. >> my understanding, well, government will tell you, my

understanding of the government is, it would be enough if the defendant knew the name, the name of the drug. or whatever else. and if indeed that drug has the chemical composition. >> i won't spend the question i'm looking up. i'm confident that's not the position, they've said the opposite. >> suppose the court instructs the jury that it suffices if the defendant knows that this is an illegal drug because of its effect. >> i don't think again the critical question is illegal drug. if by that you mean illegal drug under -- >> because of its hallucinogenic effect, maybe that's incorrect because they have to be chemically the same, so that's incomplete. but it seems to me that should suffice for mens rea. >> just to be clear, i think a -- >> excuse me, and then it's

shown that this is chemically similar. >> right. i think the court would have to tell the jury you can take into account in deciding whether he knew it was illegal under the controlled substances act itself. and so what i'm quibbling with is just the unadorned word illegal. i don't think it would be sufficient if a jury was convinced that the jury thought it was an effect and illegal under state law. that's why i was acting furtively. i don't think that a jury could if it believed that finds the mens rea established unless of the factual knowledge. that's the ordinary way in which knowledge unlawful possession of a prohibited item is proven. >> the instructions of page 14 of your brief the brief in footnote nine, can you sooif that by adding just a sentence or two to the first paragraph? >> no because -- >> or is it beyond hope? >> no i think recall that this

is setting forth the elements. so i think the element is that the defendant has to know that he's distributed an analog. and then there's questions about ways in which to prove that. and i think the court could give an instruction of the sort that we proposed, which said that the defendant has to know that this is an analog within the meaning. it has the characteristic that make it an analog. had the government asked for instruction, it could have given that. or the government can show that the defendant knew it was unlawful generally and you can make that unlawful under the csa itself. and you can reach that conclusion based on circumstantial evidence including concerning the defendant's knowledge about the drug's effect. but there's a world of difference between saying that this is relevant circumstantial evidence about whether the defendant knew he was violating the statute of conviction and what the government's position is, which is, once you prove that the defendant knows that it's illegal at all, you're done. and the jury is compelled to

conclude that mens rea is established. and i think that's wrong. >> i'm sorry to put you through again, i think it's important for me to get it right. i understand your understanding that the sg is a big difference, the sg says you have to know it's illegal under any law you sympathy in under the csa. what was the other way in which you disagreed with the government? >> i think that's the only way in which we disagree about the meaning of the statute. >> i thought you were disagreeing about names and characteristics. >> well, i was just saying with justice sclooe ya. under the knowledge of identity approach, they have to show that the defendant knows the chemical structure and effects of the analog because it's not enough to simply know its name. and so i don't think that we disagree with each other on that point. >> can i ask mr. russell about your difference as to whether it's under this statute or under any statute. if you look at some of the instructions that are given, just under the csa, not analogs,

that some of the instructions just say that you need to find that the defendant knew that he was distributing some kind of prohibited drug. they don't say, a drug prohibited under the csa. so if we use that as the analogy here that would suggest that the jury wouldn't need to find the analog prohibited under the csa and the analog act adjusts that it was prohibited by something. >> right. i think there's an ambiguity in those instructions whether it's unlawfulness under the csa. what they mean is under the csa. in the cases where the defendant has come forward and said actually i thought it was illegal under under another statute, and i believe the case of morales. three of the cases the government cites with the proposition. the court said no, that's not good enough. and that makes complete sense.

now, it could be that in a lot of cases the government is going to present evidence that the defendant just thinks is a controlled substance generally. and we agree that the jury can infer other evidence that he thought it was illegal under the csa itself. but you have to leave open the possibility that the jury can in a case like this, say actually no, the ed doesn't show he believed it was lawful, unlawful under the csa. he looked at the schedules and quite reasonably believed if they weren't on the schedules they weren't illegal. the existence of the analog act. prior to this case, i didn't know about the analog act. i think a lot of people didn't. and in the community where my clienlt was selling these things, they were being sold openly in delis and gas stations that were being advertised in local newspapers and magazines, i think that's consistent with the fact that lots of people entertained the incorrect notion that if something's not on the schedules ten it's legal to

sell. somebody who is ignorant -- >> and you don't defend that right? ignorance of the law is not an excuse. even though you're totally ignorant that be it's on the analog act, if you know the chemical composition and it composition and it's covered by the analog, they've got you, right? >> let me try to make clear my position. we agree that if the government can prove that you have the factual knowledge that the chemical has the characters that make it an analog, ignorance of the law is no excuse. >> wait, what does that mean? >> so i know all of the chemical characteristics okay? i have to in addition know that those characteristics make it an analog? >> no. >> okay. >> there are three options. one that you propose, they know the name. >> right. >> they know that the substance is chemically substantially similar to a controlled substance, they know the fact.

they have to know that as well that it's substantially similar and represented actual fact. >> i'm not a chemist. i don't know it's substantially similar, but i do know what the chemical composition is. i have to in addition know that the chemical composition is substantially similar? i don't think so. i think if i know the chemical composition and in fact that it's substantially similar, help me out. >> i think we disagree about that. if you take that view, we still win this case. there's no evidence he knew anything about the chemical structure of what he was selling here. >> i assume your argument is that it's a kind of coincidence. you have to know that this stuff is an analog. and there are two ways you could know that. one way you could know that is you could know what the chemical composition of this is and the chemical compization of say, cocaine is that would be one way.

very few people other than chemists know that. the second way you could know is you know it's forbidden by a law which has the title forbidden analogs. and if you happen to know it falls within that, of course you know it's an analog. because you know it falls within it. those are the two ways. no one's been able to think of a third. and ignorance of the law is no excuse, has nothing to do with this case. this is just a coincidence that those are the two ways you could know it was an analog. >> certainly those are the two ways you could know it's an analog, and i don't think that the government can even argue that it satisfied that burden in this case. much less than the jury would have been compelled to find that harmless beyond a reason. >> you say the government has to prove knowledge of two chemical compositions. the chemcome composition of what is being sold but also the chemical composition of one of

the items on the list of controlled substances. >> yes that is our position. >> only if that's the government's theory, only if the government goes that route ratherthen the route you said it was an analog. >> that is correct. i will acknowledge that going the knowledge of identity route in an analog case is going to be difficult for nonchemists. but i think it's difficult for reasons that should not give the court pause, which is simply it's difficult for somebody to know even if they know what the law is whether what they're doing is illegal or not. and so our theory has the benefit of avoiding entirely the vagueness problems that we think are inherent. >> is there enough evidence in this case to go to the jury under the instruction that you want? >> yes. i will agree there was. so the only question area is whether there should be a retrial where we can have a discussion about what the proper instructions are.

i don't think we'll have a lot of disagreement about that or whether the court should instead hold them harmless. on the ground that petitioner didn't present sufficient evidence to abut a theory the government wasn't making at trial, as to why we have and why we enforce forfeiture rules. this court could quite easily resolve this case, there are two ways in which this can be proven but the government in this case, to the extent it has a special new theory about illegal under some other law, has waived that argument by failing to preserve that. >> if i can preserve the remainder of my time. >> thank you counsel. >> my friend was almost correct about the extent of the disagreement that's left in this case. our position is not that we can prevail if we can prove that the defendant believed that his conduct was illegal under some law other than the csa or the analog act. our prussian is we can prevail if we can prove that the

defendant knowingly distributed the drug, and he knew his distribution of the drug was illegal generally. >> my question is that i posed to him is really for you. >> would you mind repeating it? >> well, i'll try. suppose you have to show, and i think you do, that the defendant did know it is an analog similar to cocaine. there are two ways you can do that. the first way is you can show this defendant being a graduate in chemistry knows what the chemical composition of cocaine knows, knows what the composition of the other substance is, and knows they're the same. you're not going to be able to do that very often. another possibility is you can show he knows that this particular substance is banned by a law that is called the analog act. because obviously, if he knows

that it is banned by the analogs, it must be an analog. those are two ways you could prove knowledge. to prove that it is banned by the antiturkey chute act proves nothing about his knowledge that this is an analog, and therefore, once you say, as you are trying to say, i think, that some other illegality is enough to convict, i no longer understand the argument. >> the argument, in the real world, defendants don't tend to know the specific provisions of criminal law or state law, but they tend to know whether what they're doing is illegal or not. the knowing or intentional standard in 841-a, describes the culpable state of mind and one way to prove that is to pluvthat the defendant knowingly or intentionally engaged in the act. >> yes but then you're saying the defendant does not have to know it is an analog. and that i think you don't

want to say. because you could think it was banned by some other act, and that would make you know that it is that thing that the other act bans. it doesn't tend to show it's an analog. >> what i'm saying is defendants tend to believe what they're doing is illegal. not under any particular provision, but generally they believe it's illegal. >> that's not what the statute says. it doesn't say knowingly be a bad guy. it says knowingly manufacture, distribute, or dispense a controlled substance. that's what the knowingly applies to. so you have to know that it violates that law, not just know that you're a bad guy. that's not what it says. >> in almost any context, the easiest way to prove knowledge is to prove that he knew the conduct was illegal. >> right under the statute. >> but just to prove the fact, he doesn't have to have awareness of the statute. if he knows the facts, that's

usually in other context the easiest way to prove knowledge under this kind of statute. in this context that's not the easiest way. we think there is another way. knowing or intentional strarnd alal standard to describe a state is a proved knowledge. >> how do you answer that turns out to be filled with marijuana? >> i guess our primary submission is it's sufficient if he proves that he was knowingly distributing a drug, and he knows it's some kind of illegal derog. >> you need to say this before. it has to be illegal under some other drug law. >> let me point out, the reason there's maybe not as much explanation in the brief is there's a fundamental disagreement that became clear that we disagree with the petitioner on what the courts have done, and i can get to that in a second but we think

certainly it's sufficient if the defendant believes he's distributing illegal drugs. we think it would be consistent to broader principles if the court held more broadly than that that the court held it was illegal generally. >> the problem i mean, that highlights what i think is the practical difference here. you have a defendant who is obviously knows something is out there, he's trying not to do something, whether it's not to violate the csa or whether not to violate anything. you want to show the jury look, something is bothering him. he knows that something is afoot, and that's all you want to have to prove as opposed to he knows he's violating either the csa or a drug law. and i don't know how that works. i understand how it works in this case, because you just say to the jury, he's chelgcking the schedule every day, doing this, doing that, but i'm a little concerned as extending that as a general matter where it doesn't have to be -- one because i think usually it's not a

question whether you know anything about the law at all it's a question whether you node the fact and whether it happens to bring it under the law, but then i don't know how broad the principle is that you have to know what you're doing, it would raise a doubt in the jury's mind about whether you knew it was legal or not. >> i have two responses i can point out. the first is and second, i can give you a real world example. this court has held that there are other ways to prove knowledge or than that a defendant knew a critical fact. for example, the government can prove willful blindlessness. the court has explained that the reason you allow willful blind blindness to substitute for knowledge is because a person who is willfully blind to a fact has the same cullble state of mind as the person who engages in the act. that person is at least as