president trump left the white house this morning for a four nation european tour including a nato meeting in brussels and a summit with russian president vladimir putin in helsinki. the president stopped to talk with reporters on his way to marine one. >> well, it's an interesting time in the uk and it's going to be an interesting time with

nato. nato has not treated us fairly but i think we'll work something out. we pay far too much and they pay far too little. but we will work it out and all countries will be happy. for the uk that's a situation that's been going on for a long time, so i have nato, i have the uk, which is in somewhat turmoil and i have putin. frankly, putin may be the easiest of them all. who would think? who would think? but the uk certainly has a -- they have a lot of things going on. >> [ inaudible ]. >> no, i have not. boris johnson's a friend of mine who's been very nice to me and supportive and i may be speak to him when i get over there. i like boris johnson. i've always liked him. that's up to the people. i get along with them very well.

very good relationship. that's certainly up to the people, not up to me. >> you should appreciate american's alleys. >> we do have a lot of allies but we cannot be taking advantage of. we're being taking advantage of by the european union. on top of that, we spend at least 70% for nato and, frankly, it helps them a lot more than it helps us. we'll see what happens. we have a long, beautiful week. i will say also, last night was an incredible evening. brett kavanaugh has gotten rave reviews. actually from both sides and i think it's going to be a beautiful thing to watch over the next month, but he has gotten rave reviews. >> [ inaudible ]. >> i really can't say right now.

as far as i'm concerned, competitor. i think getting along with russia and getting along with russia and others is a good thing, not a bad thing. i've said that many times for many years, so we'll see. we're meeting with vladimir putin on monday. we'll see how that goes. >> [ inaudible ]. >> they didn't give it. i have it for him. they didn't give it, but it will be given at a certain period. i actually do -- i actually do have a little gift for him, but you'll find out what that gift is when i give it. >> mr. president -- [ inaudible ]. >> no, i haven't. i really haven't. we haven't discussed it. i have a solution. tell people not to come to our country illegally.

that's the solution. don't come to our country illegally. come like other people do, come legally. >> mr. president? >> mr. president? >> [ inaudible ]. >> i'm saying this very simply, we have laws, we have borders. don't come to our country illegally. it's not a good thing and as far as i.c.e. is concerned, the people that are fighting i.c.e., it's a disgrace. these people go into harm's way. there is nobody under greater danger than the people from i.c.e. what they do to ms-13 and everything else, so, we ought to support i.c.e., not do what the democrats are doing. democrats want open borders and they don't mind crime. we want no crime and we want borders where borders mean something, all right? and remember this, without borders you do not have a country. thank you, everybody. >> mr. president? >> mr. president?

president trump has landed in brussels, belgium for the nato summit. after that he'll travel to the united kingdom for meetings with british prime minister theresa may and a visit with queen elizabeth at windsor castle. from there the trip continues in finland where president trump will meet with the head of state of that nation and then hold formal talks with russian president vladimir putin, including a one-on-one session with translators. president trump will then return to washington once that series of meetings concludes.

the former head of the fbi chief of counter espionage section peter strzok goes before congress this thursday to explain fbi actions and the clinton email investigation. mr. strzok led the fbi's investigation into then secretary of state hillary clinton's use of a private email server. live coverage begins at 10:00 a.m. eastern here on c-span3, online and listen with the free cspan radio app. and now, location privacy and cell phones. the supreme court found that police generally need a warrant to obtain a person's cell phone location data from a company. georgetown university hosted a discussion on carpenter v. united states, the 5-4 decision on cell ular network decision. this is about two hours.

all right. hello, good morning, everybody. >> good morning. >> welcome to georgetown law. i'm laura moi the deputy director here at the law school. so thanks for joining us and the national association of criminal defense lawyers for today's discussion. i think we really have a treat in store for you guys with a really amazing group of speakers. so just to provide a little context on the subject of conversation here today, i know there's folks joining us remo remotely as well. ten days ago the supreme court issued its decision in carpenter v. united states. the question in this case was whether the government has to get a warrant to access historical cell site location. those are records maintained by phone companies, all of our phone companies for all of our

phones detailing which phone towers are using which cell towers. in a 5-4 ruling the court held that the government must get a warrant to obtain those records. you're going to hear a lot of wise observations and analysis regarding the case from our speakers today, but i wanted to open the day with a couple reflections of my own, because my interest in this case isn't just about my role as a privacy advocate, it's also personal. before i became a lawyer i was a cell site location analyst for the manhattan district attorney's office. i helped prosecutors in that office understand how cell site location could be useful. i helped them order it and i provided plotting and analysis for investigation and trial. you'll hear a lot today about what cell site location is, what it does and can be used to do, how it has been used by law enforcement and how it's likely to be used in the future, but

what i want to tell you about is what it was like to work with these records 13 years ago when prosecutors in new york city were just beginning to make widespread use of cell site location. some were ordering the records, but analyzing and plotting it was complicated and the office didn't yet have a coordinated way back then to provide analytical support once the records came in. some prosecutors were looking up individual cell sites one by one typing latitude and longitude coordinates into mapquest, printing them out and going into court with those. then i came in. i was working for one of the trial bureaus and someone came to me with multiple days of cell site location pertaining to multiple phones for a complex murder investigation and asked me not only to analyze the records but then to produce a series of video exhibits highlighting the locations of a map overtime, so i did that and the exhibits turned out to be

prosecution gold as you might imagine. for example, in one video a defendant cell phone was shown in the middle of the night connecting to a cell site a short drive up the palisades parkway where the victim's body had been found a few days later. so that evidence was tremendously important as you can imagine and when word got around that i had done this for one case, other people started asking for it. not just prosecutors from my own bureau but other bureaus as well. there were a lot of calls. i even started receiving calls from folks in brooklyn looking for help in their cases. it was completely overwhelming. the demand was huge. it made it difficult for me to work on anything other than cell site location analysis so that's when i wrote a proposal to start a new unit analyzing this stuff full time for that office. they took me up on that. so that's what i did for the rest of my time at the manhattan d.a.'s office.

so in retrospect and in light of the carpenter case i have a couple observations to share with you to sort of set the table for the day and i won't belabor them because i'm standing between you and a series of really amazing experts who are going to make these points better than i, but the first observation is that my personal experience with cell site location information the way it so quickly became in high demand happened because this particular type of evidence really did open up a whole world of possibilities for prosecutors. suddenly they could get a window into the past movements of any one they wanted, provided that person carried around and used a cell phone. cell site location information enables the government to, quote, travel back in time to retrace a person's whereabouts, subject only to the retention policies of the wireless carriers which currently maintain records for up to five years, end quote. or to put this in the terms of

the fourth amendment, cell phone site location information expanded police power in a truly significant way, throwing off the prior police power equilibrium that we were used tochlt the second observation i'd like to make is that cell site location has been used whole, not only to discover information about an individual already suspected of crime, in circumstances in which it might be possible for the government to get a warrants, but also as part of broad investigations to amass vast amounts of information of unknown value in the hopes of uncovering something valuable. for example, i can recall using cell site information location to attempt to locate witnesses or to try to find out, if any, of the close contacts of a defendants, the numbers he or she dialed most frequently had been in the vicinity when a crime took place and therefore might've participated in the act. many of these uses, these broad investigative uses likely will no longer be possible. so there's just two quick

observations i'm sure we'll have the opportunity to poke at in greater depth with a lineup of speakers that is humbling. will begin with the presentation on cell site location, a primer of sorts to ground the day and help us all understand the technological context for this historic supreme court case. after that we'll have a series of speakers, help us understand the big picture implications of the case, then we'll break for lunch and after lunch we'll have another series of speakers help us understand the practical implications of the case and we'll close the day between 2:00 and 2:30. for those of you watching on cspan, you can find the program today on the website. the wi-fi password is right over there. it is gohoyas in all lower case with an exclamation at the end. the bathrooms are out by the

elevator. we're very fortunate to have dr. isaacman. he's an expert on cell udollar location data. having cited his work multiple times in my own advocacy but never met him in person before today i am very please today welcome him to georgetown law. welcome. [ applause ] >> thank you so much for having me here today. it's really kind of a fun thing to do so share something that i've been working on for almost a decade now with people who aren't just academics. i started doing this almost ten years ago, just poking at cellular data record.

there's a lot of things that you can find just about how people move both individually and in groups and so, obviously they've been incredibly useful for law enforcement and so i wanted to provide you guys an opportunity today to see sort of what that data looks like and what can be done with the data and also really importantly what can't be done with the data. what this data the limitations of this data are as well. so, first, an observation. communication is intrinsically tied with location. if you want to communicate, you have to give away your location. this is true in any form of communication. there are entire children's games marco polo that are predicated on the fact that if you communicate you're giving something away. this is really obvious in the case of snail mail f. i send a letter i have to put an address on which directly ties me to where i'm going to be.

it's kind of less obvious with telepathy. if i tell you that i grew up and the dentist that i called was 301-262-1800 i've just given you a lot of information about where i grew up. i told you that it was 301. that's an area code. that's an area code for the western half of maryland. so you know that i come from maryland. in fact, 301 has lots of what we call exchanges. two of them are 262 which is bowie or 4040 which is high yatsville. i grew up in bowie. i told you we had verizon growing up because 262 is bowie but it's specifically verizon phone numbers in bowie. so you know that i grew up in bowie and from there on those last four digits just tell you

the rest of the information. if i have a telephone number, i have a location. these two things are linked. now we don't use land lines. i grew up with land lines. we don't use them any more. we use cell phones and they're not tie today anything. i have a cell phone in my pocket, i'm not connected by a wire, but the paradigm hasn't shifted even one little bit. if you want to place a call or receive a text, your carrier has to know where you are. we're not connected by wires any more, we're connected to cellular antennas. once you make that connection, everything proceeds exactly the same as it always has. if i call 30-126-1800 my cell phone connects to a particular tower and it goes through the

network and then on the way back, i need to be reachable. i have to be found and so my cell provider needs to know this particular phone, my phone is connect today this particular cell tower. so what we'll talk about today are kind of what the records of this look like? the records of what tower you're connect today at any particular moment are sometimes called cdrs which are called detail records. the research community tends to call them that. sometimes it's called cell site location information. the legal community tends to prefer that term. i'm going to talk about what they are and then i'm going to talk about what we can do with them and we can do an awful lot of things with them and they're incredibly powerful and then i'm going to talk about what they're not and what limitations they have and maybe a little bit about how that's changing at technology continues to advance.

phone bills obviously require a record. anybody who has had a teenager knows that you can take a look and see who they're calling and for how long. i know my parents were aghast at how long i would spend on the phone in the mid-'90s. and you can see, you can see on your bill that there are two phones involved, the two end points of the call. you can see when that call started and how long that call was, you can see whether that call was ingoing or outgoing, incoming or outgoing. and so everybody in this room should have some familiarity with this. everybody should be comfortable that this is a thing that can happen. what you might not be quite as experienced with is the information that's hidden. the information that doesn't show up on your phone bill but that the carrier's also need to have because in the particular case when cell phone when you connect to a tower you need to

know information about the tower too. so there's additional information that gets added in. there's information about which antenna you're connected to, specifically which sector of the antenna but the details on that don't really matter. usually it records the starting tower of your call and the ending tower of your call so whatever tower's you connected at the beginning and end and then you need to store several per tower because you need to do maintenance work on the tower, of course. you need to know where those towers are located. you need to know the latitude and longitude. if we put all those together, we get data that looks something like this. this is a completely synthetic. there's nothing real about this except for the general feel and pattern of this. this is synthetic data i wouldn't want to expose somebody's private information here, but you can see that there's some random looking numbers that are the cell sites for the beginning and end of the call. there's a phone number, phone one and phone two, there's a

date and time, there's a duration, there's a direction and then whether it's a voice call or sms, is it voice or text and this -- this goes on and on -- however much you request, this is, again, it's fake data for a very short amount of time, but this is fairly representative. it's reasonable. this is very difficult to look at but two of the columns in particular are important. the date and the time and then the cell. the cell that you're connected to that gives you information about your location. so we can take this and i actually before putting it on to a slide i made a bunch more extra fake data just to make it -- to fill it out a little bit and this -- we'll put that on the map in a second. so what can we do with this data? what is the power of this data? there's a lot that we can do

with it. we can put it on a map. so i created actually two fake users, the yellow user i spent a lot more time on because that was just -- i wanted to have one really talkative user and the pink one i just picked a few points and this is pretty common. people use phones in different ways and so we get a map that looks something like this and this is interesting already because it gives us information about -- this is on a map where somebody has made calls. there's more information that's hidden here because this tells us kind of where the users have moved around. the yellow user skrats more in the north, the pink user spreads out a little bit more. we can also ask questions about, did these users ever meet each other or were they in similar locations and, yeah, i designed this data, you know, for a talk,

so, yeah, obviously. at two positions here i have the yellow user being in the same cell as the pink user. and so we can get information about was this user in the same place as this other user and that's -- that's pretty powerful and something else that we can see here is that at one of these locations we see the yellow user hit this location twice and that's going to start to get pretty important in a minute, but people are repetitive. everybody is unique but very predictable. so going to the same place over and over again turns out to be a very common and important feature. we can see that we can put people on a map but we can go further than that because we can see they were in the same place but were they there in the same time. we need to add that third dimension of time. i have mocked up a little video of our users moving around.

it's a 24 second video so each hour is roughly a second and you'll see some pink and yellow flashes as users kind of move around on the map. and this time i put time stamps on so you can see when they were in particular locations. so this is a person moving through a city, a synthetic person moving through a city but you could imagine that this would be a real person moving through a city and this time we see that, yes, those two people were in the same place but not at the same time. so unless they're spies with a dead drop or something, they probably didn't run into each other. so once we can see where people

are, we can start to get this idea that people go to the same place over and over and over again and when people go to the same place over and over and over again we can start to find these patterns. these are some maps of some volunteer locations, the paddles are volunteers said were important in their lives and these circles were the places we went to and decided were important locations. so we can see that we can find important locations. these are pretty close. it doesn't matter whether somebody works from home or how far they commute, we can find these important locations in their lives. you're defined by where you go, in short. if you choose random -- four random points from a data set, just four random locations, that's enough to identify 95% of the users. everybody travels incredibly uniquely, just two points will identify 50% of the people. if you use those locations you

find people's top three locations, only the zip code of those top three locations enough to identify half the people. so that means that just a little bit of outside data, a twitter feed, a facebook profile is enough to go from locations to person. so that coupled with a less obvious fact that laura actually hinted at so maybe it's not so less obvious now, we can get this social network of who calls who means that if we're tracking a particular user, we can then identify who their friends are by looking at who they're calling because their friends can be deitemized. if you extrapolate this and take this out and this is from an interesting piece of research in belgium. they just looked at who called

who and they ended up grouping everybody into two groups and you get all the blue dots, those were all people that speak french and all the purple dots are all people that speak dutch. belgium divides into brussels outlier. you find that just from these cell phone location information. so it's very powerful, but it has some significant weaknesses. these locations are of towers, not of phones and towers might have a range of a mile. we could be talking about ten square miles of uncertainty. how many locations do you go to in ten square miles, right? there's a bar but there's also a church. there's a bowling alley and a horseshoe -- that's a weird thing to choose but there we go. there's lots of things there. it could have a range of a mile or in a big city a couple hundred yards or you have bad cell phone service in your house so you call verizon and say i

need a network extender, they give you a fento cell and that is ten meters. they know exactly where you are. we don't really know. another thing to point out is that these ranges are funny shaped. this map of what the cells look like, it's not clear, sometimes you're in big ones or little ones, it's very complicated and on top of that cells aren't well defined. the picture i showed you is the picture on the left where we had this approximated coverage of the towers but we get this coverage area and it all overlaps. if i make two calls back-to-back. maybe it goes to this cell one time and this cell another time. it's very difficult to say a particular call means you were in a particular location. from just looking at some static

traces it can be very hard to say that a call means you were in a particular place. it records calls -- it records data only when calls and sms's actually happen. this is not happening all the time. when you make a connection that's when this data is collected. data records, because all of us use our cell phones for data these days are recorded completely separately and as a researcher i rarely see them and when i do see them, they're almost always inaccurate. calls and smss are becoming less frequent depending on your socioeconomic status as people in socioeconomic status use more and more data and less and less voice. one last thought is cell site location information is not a gps trace. if we have somebody moving with a gps trags they might go through their day with a

movement pattern that looks something like this. they start off in secaucus and go up to cliffside park and make a loop through manhattan and the gps trace would give you all of this. they're all the time. they're giving you everything you need to know about how a person moves. in a cellular world it gets divided into cells. when i associate my phone to these cells, the actual associations might look something a little bit more like this where i'm just going to associate tower to tower and so you already see i'm losing some of that granularity. i'm just getting point, point, point, point. the problem is exacerbated when we start to look at cdrs or csli because now we're only getting those information when people make calls. if i'm going to make a call, maybe i don't make a call to

that cliffside park. so now what i had before is now just four phone calls, very sparse, very sporadic. and then we get to the real world and in the real world closer to realities those things are not the same size. the fact that we started up in secaucus is totally gone. manhattan has a heck of a lot more cell towers than this, but the idea stands. if i'm going to make these calls, i still get those same four calls but two of those calls are now at the same tower. so i want to leave you today with some conclusions before i take some questions, first, if you have a phone you are giving away your location, it has to be that way. the physics dictates it. if you want to communicate, you have to give away your location. there's some major caveats to this, though. we only see the information when you make a call or receive a

call, make a text, receive a text. data not withstand. we can talk about that if you're interested. and only to the granularity of nearby towers and that granularity is highly variable, it might be a mile or a few hundred laws, you don't know. somebody knows. that said, this location information is incredibly powerful, incredibly powerful tool. we can use it to get a rough track of activity. we can make a video of roughly where you have gone, we can find your common locations, the things that are important to you. there was studies out there that everybody has 25 locations and like i said, the top three locations will identify half of everybody and you can extract those social networks. you can find out who you associate with even if you're using a burner phone f you're calling the same people, if you are going to places that you go

a little bit of twitter feed, a little bit of facebook can -- i'm happy to take questions. [ applause ] >> hold your questions for just a moment. i'm going to ask a couple questions here and then i'll open it up to questions from the audience. so first of all, thank you so much. that was tremendously useful. so can cell phone users do anything to prevent their phone provider from collecting location information about them? >> i think not. the network providers need this for routine business purposes. >> what do you mean by that? >> they need it to bill you,

essentially. they need to know are you roaming. they need to know how many minutes you're making calls, especially if you have a plan that you pay by the minute or something like that. they want to track your text messages, how many text messages are you making or receiving, so routine business purposes for that. they want to track -- they want to maintain their own network. if you look at a map of where verizon has coverage, verizon puts up towers very strategically. they put up towers in d.c. and they don't put up towers in bozeman, montana, they probably have one or two but not a lot because they need to know where the people are because that's where they need to have the service. and then from a location perspective, they need to perform maintenance on their towers, so they need the information about where their users are making calls, you need to be connect philadelphia you

wa -- to be connected if you want to make calls. if you don't want to be connected, you have to turn your phone off and not make calls or texts. >> how about airplane mode? >> airplane mode will do it. >> there's no meaningful alternatives for users to use their phone in this way? >> absolutely not. you have to be connected. airplane mode is being disconnected. you could use wi-fi if you're in airplane mode, you turn on wi-fi, you only talk through what's app and google voice, your cell phone provider will never know about. if you only talk on wi-fi, could you do that. >> i have one more question then i'll turn it over to the audience. so how much -- how many days of data do you need for the average user that you're researching, about how many days of data do you need to identify the important places in their life

and how much do you need to identify them? >> that's an interesting question. the more data you have the better, right? >> spoken from a computer science major perspective here. >> so the more data you have, the more accurately you can identify their locations, whether that's better or not we can put that up for debate. the important locations that i had put up in those slides they were collected with less than a month of data. a few weeks of data is sort of all you need to get a rough estimate. the more data you have, the more frequently people start visiting locations, the more our algorithms can find some of that ping-ponging between cells and pull you away from the actual tower location and sort of more into a more intermediate location, the more accurate we can be, but a couple weeks of data is really sufficient to find the big locations, like home and work.

home and work -- home in particular sticks out like a sore thumb. work is not hard and once you start getting third, fourth, fifth, those get more and more difficult and you need more and more data. >> i know i said i would turn it over to the audience but i'm going to ask one more thing. have you seen that change overtime? have you noticed a change in the density of the data as you mentioned, consumers more and more are using data to -- >> i've certainly noticed that -- i've noticed the trend that i stated about sort of less -- less smss and texts. you can see that in the data. in terms of the density of the towers, i haven't paid attention to it so i don't actually know. they're putting up more towers all the time so i have to assume its getting more density.

the density of text messages and voice calls has gone down and you also see these splits of people who really just text all the time and people who are really making phone calls all the time and that's been shifting too. >> so i think we have a question from the audience. i know someone had raised their hand. i don't know. the gentleman in the pink shirt back there. >> would you develop a little bit more why the providers need to save this data and do it from this perspective, if you would, please, a provider comes on to the scene, sees this case and says, hey, i'm going to be the privacy provider and what i'm going to do is limit my retention of this data to just what i really need it for? you mentioned things like billing, roaming. a lot of people have these all you can eat plans so you don't have to hold on to the data for

billing. roaming, that's just whether you're on my network or someone else's. you really need which tower the person's on. there's a lot of data being collected unnecessarily. is there a bare minimum amount that's actually necessary for the business to do its work? >> so i'm a researcher, i don't actually work in the telecom so i don't want to speculate on all of the uses of why they would want to keep their data, but certainly the points you raise are good points. there are reasons that you need to have the data instantaneously. you have to be able to route to particular phones and you need to make routing tables for calls and that sort of thing. there are reasons that you might want to keep some of that --

that data at least in a short-term just to detect network problems and failures, figure out where, if there's a sporting event, where do i need to put my cell on wheels, that sort of thing. you could certainly limit that. you could certainly bill yourself as we won't keep more than x. i think that we're at this point where there's sort of a lot of data coming in and not necessarily enough space to store it all and so i think that there are reasons that a provider might want to sort of limit the amount of data that they store. does that answer your question? partly. >> let me ask this question, do you as a researcher notice a difference from provider to provider in terms of the amount of data that they store and make available?

if you can answer that question. >> some of that is protected information, right? as a researcher getting access to this data is like getting access to a -- it's rare and when you get it everybody wants to talk to you, you're a rock star for a second. within the united states, i've only ever had access to one provider because and that was -- they're getting more and more skiddish. it's much easier as a researcher to get this information from foreign countries and their willingness to share the data and the types of data they collect, some of the things i didn't put up include what network these are from, so maybe we track, oh, yeah, a movie star gets a lot of phone calls fr

from -- so different providers will provide different amounts and quality of data. it's really difficult to speak about what's happening in the united states difficult to spea about what's happening in the united states right now. >> another question from the audience. yes, the gentleman here in the blue shirt. >> hi. so, you mentioned that data is only recorded when a call or sms is made or received. my understanding is that your phone periodically scans the tower in the network. is that just an inaccurate depiction of what goes on? is that data just not recorded? >> it's the second one. your phone will occasionally sort of scan, try and associate with a new, better tower. you're always trying to get the best cell phone service. your phone actually currently has a record of a number of towers in the area. you probably have a record of two, three towers on your phone, but that's not stored in the network itself.

when you associate with the network, oftentimes the network will have sort of a rough idea of where you are until somebody actually calls you. it's just expensive to maintain the location of every user at all points in time, and the gain from a performance standpoint is not necessarily noticeable to the end user. so, some of that stuff might be stored on your phone but not stored in the network. the associations that the network does know about are often -- they're not recorded in the same way. they're not stored for the same duration. there is data that's stored for a very short amount of time that will tell you every tower that you hit during a call, but those intermediate towers are generally thrown away, even after less than a month those are stored. to just get what i showed you, sort of the start tower and end tower for more performance reasons. >> yes, yeah, the gentleman back here. sorry, right here on my right,

mario. yeah, in the middle of the crowd. just raise your hand again. >> thank you. hi. are the -- is the granularity of the individual towers trending more towards precision? is it a tech thing where within five years every cell tower is going to be able to do it within five feet or are there other factors like topography and remoteness that affect that or make it fuzzy. >> some of this is dictated by to po topography. you can put a cell tower where you can put a cell tower. if you were to take a walk around d.c., you would see lots of buildings with funny scares on them, the fake antennas that look like trees, everybody sees. walk around d.c. and look at the roofs of buildings. you'll see them. the verizon center obviously has lots of verizon towers on them. as networks want to increase service and as they want to -- you can only fit so many people contacting a particular cell, so as areas get more dense, you need more towers, and then as i

mentioned, femto cells, people who are unhappy with the cell service in their particular area, you can get a cell which essentially connects your cell phone to your internet, and if you have that, the range of that is ten meters. it's not five feet, but it's close to it. ten meters will, you know, i was sort of saying, i don't know if i'm in a church or a bar. if you're in a femto cell, you're in that cell. you're in your house or wherever that is. so, certainly as we want better coverage, as we demand 5g, as we move forward, we're going to keep increasing this density and thus the precision and the amount of data that we have otostore. >> i think we have time for one more question and then we'll have to end so the -- yeah, claire, the gentleman in front of you with the striped shirt. >> thank you for coming in. i had a question based on maybe

the future of cell site location. do you see in the future businesses developing for kind of pay to play privacy. so, say you have a second order of people who own cell phones and they have vpn private satellite communications versus cell phone towers. what does that imply in terms of making privacy affordable and accessible to the public consumer? >> i think this -- this question is sort of very reminiscent of the question before, the first question that i was asked. in the end, communication requires location. if you use the tour web browser, right, it routes your ip through this proxy, through this proxy, through this proxy, ultimately

the data has to get to you, right? it's just a matter of how far do you want to obfuscate this. and it is certainly conceivable that you start coming up with these sort of proxies, but a lot of that's just going to happen over the internet, like i was sort of answering before, if you don't want to get tracked, go on wi-fi, right? use what's app. use google voice. i mean, insofar as google protects your privacy or facebook for that matter. that's a question for a whole different group of people. but yeah. i think there are already ways to do it. i don't know that it's necessarily going to be a value add for the cell phone companies to start routing you all over the place if you can just do it over the internet already. >> all right. and i'm afraid we're out of time for questions, but thank you

very much, dr. isaacman. that was fantastic. thank you. okay, so this brings us to the first -- sorry -- the first panel of sorts of the day. the next three speakers are going to offer reflections, comments, and analysis on the big picture implications of the carpenter case, so i'm going to ask you to hold your questions for the next three speakers until all three have spoken and then after that, we'll have time for q&a for all three. so, first up is a person who more than anyone else in this room you should thank or blame, depending on your perspective, for the blockbuster carpet case that we're here to discuss today. please join me in welcoming nate wesler of the aclu who represented timothy carpenter before the supreme court and argued the case on carpenter's behalf. >> thanks so much, flora. i'm really very pleased to be

here. so, four decades ago, the supreme court decided two cases, smith vs. maryland, that set up what has come to be called the third party doctrine. those cases were about bank records held by a bank and a two and a half day period of phone numbers dialed on a land line phone and those numbers stored by the phone company in order to route the calls and the court reason that a person has voluntarily turned that information over to the companies and therefore they've given up their privacy interest in it for fourth amendment purposes. they've waived their reasonable expectation of privacy. that was a really controversial outcome at the time. it was both those holdings were made over very strong dissents in the supreme court, but whatever the wisdom or the logic of it was four decades ago before the digital age, that principle, those cases, have not held up well in their intervening decades as we've

moved into this fully digital reality that we live in now, and those decisions are worked a lot of mischief as lower courts have felt bound by what they interpreted to be just a bright line rule, if a third party company holds your data or data about you, no matter how sensitive it is, you've lost your ability to invoke the protections of the fourth amendment if police go to that company to get the stuff about you. meaning that the police don't need to get a search warrant, they can use a subpoena, or if there's a statute that requires something else, maybe a court order on a slightly higher standard which is the case statutorily for the kinds of cell site location records that we're talking about today. but that principle has -- that third party doctrine has created a lot of other mischief too for a whole panoply of highly sensitive digital age records from medical information to other information about our communications, our documents, information about what we do online and so much more.

and the court's decision in carpenter was in some way a decision about cell site location records but i really think it's really an earth-shaking reevaluation, the first time in decades, of this third party doctrine and creates a tremendous space moving forward to more adequately protect the kinds of sensitive information that we can't avoid creating about ourselves today. the court in the carpenter case declined to extend smith and miller, and that's how it talked about it, rejecting the government's claim that this is just a bright line rule and that once the company has the data, that's it. the court was very cognizant of the need to change and update and adapt our understanding of fourth amendment protections to take advantage -- to take account of changing technologies, so the majority talked about the novel circumstances here, that this is a new phenomenon, the unique nature of those records.

they're quantitatively different than the limited records from the '70s. the majority talked about a seismic shift in digital technology leading to the point we're at now where we need to find a better way to protect our information and the court clearly understood how important this case was. that oral argument, chief justice roberts, did the very unusual thing at the outset, without either party asking for it, extending the length of the argument on both sides by ten minutes, quite rare, and the questions of the argument were really very deputieply attuned what is the technology? what kind of data is being collected? and what are the implications of the government's rule going forward for location data but also for the other kind s of digital age records that we may care about. and in rejecting the extension of this doctrine to this new context, these -- this pervasive record of everywhere a person

goes, the court avoided what i think would have, by adopting the government's position, would have really led to a real evisceration of our practical ability to maintain our privacy and our control over our data in the digital age because it's really impossible as a modern human to go about our lives without leaving this trail of digital bread crumbs of location points but also so much more for all the connected digital technologies that we use. the opinion is important not only because it recognizes the access to this location data is a search but also it's the kind of search that requires a warrant, and that wasn't a foregone conclusion going into the case or the decision. the government's position was that even if this implicates some kind of privacy interest or maybe even a property interest of the people carrying cell phones, it would still be reasonable to get access to these records without a warrant. the government pointed to the subpoena doctrine, what it

characterized as centuries of uninterrupted precedent saying that when the government chooses to use a subpoena or a similar kind of compulsory legal process that's not a warrant based on probable cause, the choice to do that thing, to use this piece of paper called a subpoena instead of a warrant, dictates what the fourth amendment says. it's a process or a form over substance kind of an argument, and the government's position was, if we use a subpoena, it just has to be reasonable, not wildly overbroad, not over burdensome on the recipient, the phone company, to comply with it and of course phone companies comply with tens of thousands of these requests every year. the court rejected that view and said, no, we're in a new context. we've never before encountered a third party where an individual has a reasonable expectation of privacy. only a search warrant will suffice. that's tremendously important for these location records but also going forward forso much more.

now there were some strong dissents in this case. justice kennedy, justice alito, and justice thomas dissented. justice gorsuch also dissented although his dissent really was a concurrence up until the last two paragraphs and i'll talk about that in a second and maybe in question and answer we can talk about it more, but the one thing i'll say is that i do agree with justice alito about one thing. he was quite concerned about what he portended would be a blizzard of litigation that the majority's decision would unleash as lower courts and litigants and criminal defendants try test and figure out the boundaries of this new interpretation, new context under the fourth amendment. i agree and i think that's a good thing. let that litigation come because we are way overdue to figure out how to adequately protect american's privacy rights in a real, solid, meaningful way in the digital age and we're going to see lower courts starting to grapple immediately with the boundaries of the decision in terms of location data and in terms of many other kinds of

sensitive information. so maybe i'll talk for a minute about some of those questions that are yet to be answered. so, the supreme court purported to be addressing the majority. only one question and what it characterized as a narrow question, although i don't think it's really narrow at all, which is whether people have a reasonable expectation of privacy in their historical cell site location records held by their provider. this case itself involved the carpenter case, involved two requests by law enforcement for two different chunks of mr. carpenter's data. the primary service provider was metro pcs. the government received 127 days. that's about 4 months. it just happened that the account had terminated before that fifth month of data, so they turned over what they had within that date range. that was about 13,000 location points. that's about 101 location points per day so that's a lot of data.

there was also a second request to sprint for a seven-day chunk of data covering a period when the government thought mr. carpenter's phone was in eastern or northwestern ohio, which was not served by metro pcs, it was roaming on the sprint network so that was a request for a shorter duration, a week's worth of data. the court's language in the case is all about needing to protect against the collection of pervasive data, aggregations of data that map out a person's movements over time and space. in a footnote, the court said, we need not address whether there's some smaller period of data, some smaller duration that won't need a warrant because here, at the very least, seven days, a week's worth of das requested is enough to cross a line into violating expectations of privacy. i have no doubt that in future cases the government will argue that there's some shorter period, a day, five days, six hours that doesn't require a warrant. i think that looking to the reasoning of the court's

opinion, one or a few individual location points probably falls outside the logic but once we get to any aggregation of hours, probably, they can start to really chart a person's life, then we're into the territory of needing protections of a warrant. the court also said it wasn't deciding what the rule should be for realtime tracking, but everything it said about the danger of unfettered government access to a pervasive location of where we go would apply to a request to a cell phone company, to ping a phone in realtime and chart where it's going. maybe there's an exemption for one or a few individual location points. we'll see. but certainly for any kind of aggregation of that data, the privacy harms are at least as great for realtime data. the court also said it wasn't deciding about so-called tower dumps. these are requests to a phone company to identify all the connected to a particular tower during a particular time range so there might be a series of bank robberies and police want to know was there a phone that

showed up near each of these crimes at the time of the crime. that may not walk into the territory of this kind of aggregation of data that reveals a person's most private activities, but i think it does point in another direction of necessary protection. it looks like a lot like the kind of general warrants that the framers of the fourth amendment were so concerned about. this is a request for a ton of people's data, virtually every one of them will be totally unconnected to the crime, and so courts are going to need to grapple with what protections should look like in that dimension where we're ensnaring a lot of stuff about a lot of people without probable cause under the government's current view. and then there are other kinds of location records. we're not just talking about cell phones. other records that in the government's -- or sorry in the court's telling constitute a comprehensive chronicle of a person's past movements. show the whole of a person's physical movements over time, so these could be gps records

collected by apps on our phones, information from wearable devices, smart watches that upload records to apple or to fit bit, automated license plate reader data that over the course of time and space charts everywhere everyone's cars are going over time, facial recognition capabilities, networked to surveillance cameras, all of this starts to look like fertile ground for new types of fourth amendment challenges. but that's not all. the kind of lines now being drawn by the court, i think, fairly contemplate that there are going to be other kacategors of highly sensitive data that are going to need to be protected in the digital age. so that includes things like maybe our browsing histories online or our search query histories. in some sense, that's information voluntarily given to google or to verizon to allow for our connections or find where we want to go online, but it's tremendously sensitive, certainly in the aggregate, and lower courts are going to be looking at those questions very soon, i think. information from the apps on our

phones, whether it's a comprehensive record of every newspaper article i read on the "new york times" and "washington post" apps on my phone over the past two months, information from apps that chart medical information or fertility tracking data, communications, political persuasion, so much more. bodily data like your heart rate uploaded from a smart watch. information from the interior of our homes as we move into this real estate of so-called smart devices, internet of things devices, a smart thermostat that knows when a homeowner is at home, potentially what rooms they're in, a smart meter supplied by the power company that doesn't just chart aggregate kilowatt hour usage approximate per month but a granular minute by minute accounting of what power is being used. all of these kinds of data that under the government's old view would have been inaccessible without a warrant are now open to a whole new set of challenges

and i hope protections. i also think that there's a new appetite potentially in the courts to look at bulk collection of the kinds of older data that were talked about in miller and smith, those 1970s, cases, so the -- there has been recently a lot of debate over the government's capability to collect bulk metadata about telephony, the nsa's section 215 program which was altered by congress not so long ago, the government's argument there was these are just the numbers people are dialing. sure it's a lot of numbers but if you don't have an expectation of privacy in a little, you don't have an expectation of privacy in a lot either. i think the court's recognition that the pervasiveness and the nature of the data changes the analysis and provides new space for those kind of challenges too. i'm out of time so i'll leave it there and i look forward to talking more in the question period.

>> great. thank you so much, nate. so, again, everybody just keep those questions in your head. we're going to have time for q&a, but next it is my honor to welcome up profess laura donahue of gor of georgetown law. professor donahue is one of the nation's foremost fourth amendment scholars. she's also one of our esteemed faculty directors here among many other things. her bio is seriously far too much to summarize. please join me in welcoming professor donahue. >> thank you very much for putting this terrific event together today. i can think of no better way to spend today than debriefing on carpenter with nate and the others who are here today. it's a great pleasure to talk shop. i'd like to say i'm extremely happy about this opinion. i am not.

i am not very happy about it. and i say this, i share justice gorsuch's disdain, really, for miller and smith as well as katz and also justice thomas' concern about katz. i think this is the right result so i think of it as kind of dames and moore of fourth amendment law. that was fought over whether the carter negotiation of the iranian hostage crisis could deprive u.s. companies of their u.s. property rights and interests and it was kind of generally agreed that it was the right decision to reach, although it had very dubious reasoning in getting to that conclusion. so, while i think that this case did reach the right conclusion, there is a fourth amendment interest in cell site location information, i'm deeply concerned about the way in which the decision was reached. we are left with tons of questions, never mind they added a balancing test into miller and smith that were never there. they put justices in a policy role because it puts the courts

in the position of deciding these seven factors that they laid out. you're left with this question, what makes something a distinct category of information, how do you determine which side of the line you're on, how do you understand if you're on the wrong side of the line, how much information is too much information or not? how much weight do you give each of the factors? which factors count more than the other factors? et cetera. in short, i think this is really one big mess, and although it reaches the right conclusion, it's the reasoning. so, let me talk a little bit about that reasoning. the court in this opinion, justice roberts, really, there are two parts, of course, to the holding. first there is a search, and second, that a warrant is required. his reasoning is that katz sets forward this reasonable expectation of privacy test and applies it and he looks particularly at miller and smith and says that the digital data in question lies at the intersection of location data on the one hand and third party data on the other. and so the reasoning that goes on here is kennedy says, well,

look, the kind of information at issue, and cell site location information, is different in kind than the kind of information at issue in miller and smith, namely banking records, financial records, or telephone -- the telephone numbers that you dialed or those who dial you. and specifically, he highlights seven factors that go into the determination of how this is different. so, first, you have near perfect recall here, unlike a nosey neighbor who looks out their window and sees what they're doing. here you have perfect recall. well, this really isn't so different from these other kinds of records. you have perfect recall of your financial records over time. he says it's retroactive. you can travel back in time so you don't have to get a warrant at the outset and have probable cause if somebody has engaged or will engage in crime but actually it's all collected and then you retroactively go back and collect it. this isn't different from financial records if you demand the financial records, these also go back in time and potentially for years. third, he says, well, they're extensive, so cell phone

companies right now by their own admission, a device, decide to keep it for five years, it could be more or less but it's a period of years. your banking records also go back for many, many years. he says, look, it's precise, and the precision is rapidly improving. that's no different than what we have on the other side of the equation, and then he says, look, it's deeply revealing, and he doesn't go into great detail on this but he just says these records are deeply revealing and then he looks and he says, it's easy, it's cheap, and it's efficient to do this, so the role of resources is actually playing a limiting role in what the government can do to you and that limitation is dropping away is kind of what the hint is that's going on in this factor and there's not voluntary sharing going on. so when we walk around with a cell phone, it's not like we're specifically revealing to the phone company, i'm going to go to starbucks, then i'm going to go to my office and then i'm going to go to this amazing discussion of carpenter, right? it just happens to be collected along the way. so he looks at these and he says that this is a distinct category of information.

the problem with this -- on the one hand, this takes on the traditional understanding of smith and miller, which is that zero plus zero is still zero, and this is what claire egan, judge egan in her opinion on section 215 of the patriot act, when she was looking at the collection of telephony data, she said the privacy right doesn't just arise ex nihilo. the fact that we collect all of your metadata for almost a decade and in fact every american's metadata for almost a decade doesn't make a privacy right arise. kennedy is really taking on this view that zero plus -- sorry, not kennedy. chief justice roberts, that zero plus zero is zero. he says, no, zero plus a terabyte is a much deeper privacy interest at stake and that is what has changed in fourth amendment doctrine is that the court is recognizing, look, it's not just zero plus zero, it's zero plus a lot of

very personal, important information. these factors, however, that are being offered are not sufficient grounds alone on which to distinguish between financial records on the one hand and telephony metadata or, you know, phone numbers that you dial and that call you so register, trap and trace type information and purely location information. so it's not satisfying in that regard. now, kennedy goes on to offer three critiques. he says, look, cell records are no different than many other kinds of business records. he also is concerned about stare decicis. in many ways, i think this horse has already left the barn. that's what happened in katz is that there was an effort to wrench katz from kind of a terrestrial grounding, which proved to be more, you know, kind of dream-oriented than actual because fourth amendment doctrine has remained very much grounded in the terrestrial world in many, many ways. justice thomas, then, comes along and says, look, the issue

is whose property is being searched. this is not carpenter's property. it's the cell phone company's property. therefore, a c-spsubpoena shoul sufficient. we have subpoenas, it's the right device to use to get somebody else's information and he says, look, on these grounds, katz itself was really upending the history and meaning of the fourth amendment. and here, justice thomas is on very secure ground. so if you look at the history of the fourth amendment, the right of the people to be secure in their person's houses, papers and effects against unreasonable search and seizure, what unreasonable meant was against the reason of the common law, and against the reason of the common law were general warrants, because the british crown could not enter anybody's home without a warrant and a general warrant was insufficient in order to use as a basis to go into somebody's home, a general warrant being a warrant that doesn't specify the individual beforehand or the particular crime, there's no oath or affirmation, it simply gives the government the power to go into somebody's home, and

unreasonable meant against the common law. and katz then comes along in 1967 and says, well, actually, we're going to understand reasonable by, like, more or less reasonable, kind of this relativistic sense and so if there's more of an expectation of privacy, both objectively and subjectively by harlan's opinion in this case, then -- or his position in this case, then we're going to give you fourth amendment protections. this really has no resemblance to how the founding generation would have thought about the fourth amendment, and here, i'm in complete accord with justice thomas as well as justice gorsuch who raises this point as well. justice thomas further points out, and here's where i disagree with him, he thinks that this reading, that the majority adopts, renders persons, houses, papers, and effects out of existence. and he says, look, this isn't persons, houses, papers, and effects, so if you see a privacy interest in csli, you're basically reading those textual words in the constitution as though they don't exist.

and i don't think that's right. i think all of us now have, on the one hand, a personal doppelganger that follows us around that looks like us, talks like us, goes the same places that we go. that is our person. that is a digital person that follows us around. and i think you can understand persons in that sense. you can also understand effects in this sense, going back to the original time of the constitution was written, effects included business records. actually, business records pertaining to your business were your effects, and so i think justice thomas misses an important opportunity to really ground that right in the original understanding of the fourth amendment. he also argues that it reads there out of existence in the sense that you're now claiming ownership over the cell phone company's records, that you have -- you no longer have any interest in that, any right to those records. and here, you know, i think justice gorsuch's critique of this is actually quite

trenchant. it's -- the concern here is that when you create a record, you don't lose your right to that record. and justice gorsuch, i think, gives a very thoughtful response to justice thomas on this to suggest that you can own something and share that something with somebody else in a way that you don't lose your property right in that information. and that, i think, is a much firmer basis on which to move forward. justice alito's critique here, he says that the court fails to distinguish between an actual search and an order merely requiring a party to look through its own records and to produce information. this is the traditional distinction between a warrant and a subpoena and he really attacks it on the subpoena-warrant grounds, saying that eviscerates the subpoena power. the court replies that justice alito's rule would eviscerate the fourth amendment so there's a bit of a back and forth between the chief justice and justice alito on this. the chief justice says the

dissent should recognize that csli is a different species of business record, something that is much more direct than corporate tax or payroll ledgers and here we're starting to get to the heart of the problem, which is the point of the fourth amendment was to protect against overbearing government power and intrusion into individual's lives, yet in none of these opinions do we so a really careful discussion of how that worked and why it translated into protection of one's person, houses, papers, and effects and i think that is a promising way to move forward with the doctrine to really address some of the problems that we see with the majority opinion here. for me, the most interesting opinion is justice gorsuch in this most -- the most interesting dissent. he says that katz came out of nowhere. he's right. this was a lawyer during -- right before oral argument decided to borrow the reasonableness test from torts law, and through it, into the discussion -- the first time it

appears is in oral argument in katz. then the justices asked him further questions and he conceded a subjective reasonable expectation of privacy during oral argument and the court just adopts this as the rule moving forward. they're right, this kind of came out of nowhere and bears almost no resemblance to the original understanding of the fourth amendment. he then looks at smith and miller, which applied it to banking and telephone records and the dissents in those cases are particularly prescient at pointing out the problem of assuming you have no privacy interest in who you call and who calls you. of course you have a privacy interest in that. the frequency reveals what types of relationships those are. the people reveal with whom you have those relationships. of course this information is private. so, in many ways, miller and smith were the first missteps along the way. so, for gorsuch, he says, look, there are three possible courses of action you can take. the first course really amounts to suck it up, right? he doesn't put it like that,

that's how i put it, but he says, look, just accept your loss of privacy, and here he looks at the third party data explanations and why this was somehow acceptable that there are really three explanations. first is that you should bear the risk, that when you provide information to your cell phone service provider, you bear the risk that they will use that information in some other way. and that's really what's behind third party data, this basic idea. and he said, well, look, knowing that there's a risk that they might use it another way doesn't shift responsibility for bearing that risk, so if i walk out of this building today, i know i could get hit by a car walking down 1st street. does that mean that if a car hits me, i bear the risk of that car hitting me and that car is absolved of any responsibility for hitting me? of course no is the answer to that. he says there's a real distinction to be drawn between knowing somebody can break faith with you and then bearing the risk that somebody will break faith with you. and he says, look, third party

doctrine could be because of consent, that we've somehow consented. as long as we know that we're disclosing information to a third party, that choice is voluntary and the consent is valid. this is orrin ker's point they raises in one of his articles and gorsuch rejects this. he said, consenting to give third party access to private papers that remain your property is not the same thing as consenting to search -- for the government to search those same papers. and here, none of these -- none of the opinion nor the dissents, none of them go into detail on informant doctrine and i'm very surprised by this because informant doctrine actually is what led to the third party doctrine in the first place. so, the stool is not complete. they've only looked at two of the legs. they've looked at locational information and they've looked at the third party data. they have not looked at informant doctrine and how informant doctrine has evolved and i'll say one more word about that before i conclude in just a

moment. so, the third critique that gorsuch raises is clarity. this idea that we have third party doctrine because it's clear who has, then, ownership over those records and whether you've lost privacy or not and it keeps us from falling into this factorial trap that this opinion lays out and justice gorsuch says, it would be just as clear to say, you have a fourth amendment interest in all third party data, so clarity alone is not enough to get us past the post. and so he says, well, look, if we're not going to just apply third party doctrine, you know, unthinkingly, then we have two other options. we can set miller and smith aside and reapply katz and here he says the problem in the first place, and i think he's right about this, it's unclear whether it's an empirical or a normative understanding of reasonableness as many scholars, myself and others included, have argued. judges are not the right people to make this normative call. it risks undermining the court and as justice gorsuch points

out, it also leads to inconsistent and really incredible results. so, a helicopter flying 400 feet above your home, you have no privacy interests in your backyard. even though you have a six-foot fence and another 12 feet of fence inside of which is your marijuana garden in this particular case. so, justice gorsuch says, that makes no sense. of course you have a privacy interest in that. sorry, that was the cessna. the 400-feet helicopter was above a greenhouse in which there was actually a panel missing. and then he goes to greenwood, which was this wonderful case where he put the garbage out on the curb and he said, this is ludicrous that you don't have a privacy interest if your neighbor started going through your garbage, of course you would go up to them and say, stop going through my garbage. he could have cited where it was illegal to sit on top of a two-decker bus and yet in that case the court says, well, anybody can sit on top of a two-decker bus so it's okay to

fly over somebody's home and inside their backyard. he says, these cases are really inconsistent. so he's left with a conclusion that you have to look elsewhere for answers and he officers five propositions to guide us and in some ways this is a proed mroad kind of how to get my vote moving forward and he chastises counsel in the case by saying we raised it in jones and goes through the litany of cases, like this should not be a surprise. carpenter should have raised this in the first instance, the property rights approach, and here are his propositions, the fact that a third party has access or possession of your papers and effects does not necessarily eliminate your interest in them. i think that makes sense. he says, second, complete ownership and exclusive control of property is not always a necessary condition for fourth amendment rights. i think that is right too. that strikes me as very solid. third, he says positive law may help to provide guidance. he looks at state law rights where they create rights in both tangible and intangible things,

so there's something called, for instance, a digital asset, which is created right now california just passed a new law, you know, looking at state laws that have created these rights and intangible property. he also notes that constitution -- that there could be a constitutional floor that cannot be overridden by legislation so while you might look to legislation or to common law as creating certain types of digital rights, at some level, there has to be a floor beyond which congress cannot go in waiving the rights of individuals, for instance, creating some sort of a subpoena-like power to go after cell site records like section 215 of the patriot act. he would say, look, there is a constitutional floor below which you can not go. at the same time, that constitutional floor can actually intrude upon the subpoena power. that's his fifth proposition. so, to conclude, i would say this opinion, there are a number of important doctrinal streams that are not addressed in this opinion, which leave open a lot

of questions about how to reconcile these different streams in the doctrine. so, the majority misses and kennedy also misses, for instance, this concept which is behind locational data which is that when you go out in public, what you say and do can be seen and heard by others, so why would we force the police to close their eyes or cover their ears? it's something kind of weird about that. so you assume the risk. part of that assumption of risk is that if i go out and i do a jig on the street, if somebody sees me do it, why should i force, you know, my brother, a police sergeant, to close his eyes and not watch whatever i'm doing in public. and they don't really grapple with that, and that goes back to not just knots, which they do discuss, but hester versus the united states in '27, and air pollution board versus western alpha in '74 and oliver versus u.s. in '84. this underlying public space doctrine, i think, matters here. the second is that it doesn't address this informant doctrine

and this comes from a long line of informant cases prior to katz then but it specifically says it leaves informant doctrine untouched and following that, we have two more cases that reinforce the informant doctrine, and finally, the mere evidence rule. they don't really adequately explore the relationship between the fifth amendment and the fourth amendment and the extent to which demanding your records may be used as evidence against you in violation of the rights laid out in the fifth amendment. so, to conclude, i just -- i have to say i think this is the right result to reach in this case, because of the privacy interests that are entailed in this. my concern is the reasoning that the court uses actually creates so many more issues than it resolves, and i'm concerned about what this is going to look like moving forward. thanks. >> thank you so much, professor

donahue. next up, we have professor stephanie pell of west point's army cyber institute. professor pell is a location privacy expert and also served as majority counsel to the house judiciary committee under then chairman cco john conyers in wh capacity she served as lead counsel on electronic communications privacy act reform and patriot act reauthorization. professor pell was also a federal prosecutor for over 14 years. please join me in welcoming her. >> so, thank you, laura for including me in this really fantastic event. because i'm a professor at west point, i am required to say any time i speak in public that these are my personal views, they are not the views of the u.s. army or certainly the u.s. government. so, with that, location,

location, location. the three things that matter in real estate are no longer just about property values. today, where you were, who was there with you, and when you left, especially when all or ar aggregated over time can combine to reveal an intimate portrait of life and self. all of these things are discernable through the aggregation and analysis of location data, and the carpenter court recognized that historical location data allows the government to achieve, quote, near perfect surveillance, traveling back in time to, they say, access a category of information otherwise unknowable. ultimately, as we have heard, the court held that we have a reasonable expectation of privacy in the whole of our movements, at least with respect

to seven days or more of those movements. this decision was long time coming and for those of you that have followed the progression of decisions leading to the carpenter case, perhaps most notably jones and even riley, you are probably aware that the article 3 courts are not the only branch of government that have been grappling with law enforcement -- the appropriate law enforcement access standards for location data. the house judiciary committee began to look at this subject back in 2010. approximately one year before the police arrested four men suspected of robbing a series of radio shack -- and ironically t-mobile stores -- in the carpenter case. as laura mentioned in 2010, i was lead counsel on electronic communications privacy act or

ecpa reform for the democratic majority of the house judiciary committee and i'm also a former federal prosecutor. well, some states, like california, have passed legislation to govern law enforcement access to location data and historical and prospective. we've been talking mostly about the historical data at issue in carpenter, but there's also an ability for law enforcement to be in your phone or use gps and track it prospectively. and also there's technology that some of you may be familiar with called mz catchers which are essentially fake cell towers that can reach out to your phone and force it to reveal its mz identification number and also its location. it's probably a useful question to ask why has our congress failed to do so, and based on my experience back in 2010, i'd

like to offer some ideas as to why legislating in this area has been difficult with the caveat that i'm not suggesting that it will be any easier or more doable now when -- in all candor, it seems to be quite difficult to get most anything done. rather, i want to describe and interpret some of what i saw back in 2010 with the hopes of providing some more useful insight for when the opportunity may be right for legislation again. now, going back in 2010, we have to remember what the legal landscape was like with respect to location data. there was no jones case at the time. the one where the court ruled that the search occurred when the government attached a gps tracking device to a car with the intent to gather information, and of course the

riley case hadn't occurred, which, you know, allowed the court basically said that when you seize a phone, you have to -- upon arrest, you have to have a warrant now. it can't fall under the search incident to arrest exception. moreover, we had an -- in 2010, we had an extremely inconsistent legal landscape where even judges in the same district, imaginati magistrate and district court judges, were requiring law enforcement to meet different standards with respect to compelling location data. part of the problem was that the electronic communications privacy act gave no indication about the appropriate standard for law enforcement access to prospective or realtime csli. the government at the time argued that if it combined two

parts of ecpa, two particularly authorities, neither of which required a probable cause showing, that was appropriate for purposes of collecting prospective csli. some magistrate judges agreed with the government. some did not. some that agreed with the government were reported to have actually opened up and examined maps of where the cell towers were located in that particular area with the idea that if they saw where the cell towers were located, they might be able to infer the precision of the data. now of course as we know, it is possible for -- and in fact it happens that carriers can put new cell sites, whether they be new towers on buildings or whether they be microcells or femto cells and so the relative

precision in a particular area of location data can change as the carriers expand the network. now, in some circles, those that disagreed with the government's theory of collection of prospective data and required a warrant were referred to as part of a magistrate's revolt. and slowly but surely, you had a few magistrate judges that required a warrant for even historical csli. all while the government argued that ecpa authorized the collection of historical csli with the 2703-d order, the kind of order that the government used in the carpenter case. that csli was not very precise and that a simple application of the third party doctrine controlled. now, technical experts, specifically professor matt

blaze, explained to congress back in 2010 that, for example, with the advent of pico cells, microcells, csli would be rapidly approaching the precision of gps data and in fact there could be instances where it could even surpass its precision. and of course if congress is going to pass legislation, it has to account for as best it can the progression of technology. otherwise, when we're speaking about law governing technology, it could be out of date within six months. but when in 2010 a coalition of civil liberties public interest groups and tech companies joined together and proposed a warrant standard for any and all location data, historical or prospective, and any amount like

even an hour or a day, it was more or less a nonstarter for law enforcement. now, putting on my former prosecutor hat, i might ask, what if law enforcement wants an hour or a day's worth of location data to rule somebody out of an investigation. is that evidence of a crime? and to essentially quote orrin kerr, when we say probable cause, we have to ask the question, probable cause of what? normally, under federal rule of criminal procedure 41, we're talking about probable cause that the search or seizure will produce evidence of a crime. but what if i have an arrest warrant for an individual and i kant find that individual and i need to ping his or her phone to locate him. but his or her current location

in and of itself is not evidence of a crime. under what standard could i ever get that information? legislation, of course, is about compromise. rarely, if ever, do all parties or stakeholders get everything they want, and as best -- and i'm speaking g en, from my personal experience -- as best i could tell, back in 2010, neither side wanted to compromise on these points. in 2010, i would respectfully submit this lack of compromise was a bit of a gamble for both sides, a roll of the dice. again, there was no jones, there was no riley, but we know now that, well, the government lost big, and i would respectfully submit more for the implications of carpenter and the other types of technologies and techniques it could apply to, even more so

than necessarily location data. we've heard nate talk about many areas that will probably be litigated post-carpenter. one that i'd like to add is using machine learning algorithms to analyze big data. the government, after carpenter, can just no longer say, well, it's just metadata. that traditional content, noncontent distinction in the law where the government has generally argued that while content may have a warrant level protection, metadata does not, and they can no longer say, just as a flatout rule, as the knots decision indicated, there is no reasonable expectation of privacy for what you do in public. looking backward now, one can perhaps observe the writing on

the wall. over the weekend, i listened to a good podcast that ben conducted with orrin kerr and jim baker who is the former general counsel of the fbi, and as i heard him talking, i basically heard him say that, you know, the writing was on the wall, and i might suggest that you could even hear lurkings of that writing in the jones oral arguments. for example, when justice scalia exclaimed, don't we have any legislatures out there that can stop this stuff? that statement in the context of the argument should have served notice upon d.o.j. about what a future case and interpretations of fourth amendment doctrine could bring. indeed, if doj had gone to court that morning in jones expecting a friendly pro-law enforcement majority, that would unequivocally endorse the knowledge of knots, just

scalia's message, though quietly uttered, should have for all who could interpret its import echoed the force of hamlet's words of rejection to ophelia. doj, get thee to a legislature. there are still a great number of areas to legislate in. the path is not certain. perhaps when the time is right, both sides could work constructively. i would respectfully suggest that privacy just isn't all about law enforcement access standards. mini minimization, reports, so perhaps the sides can constructively come together even while quite appropriately the post-carpenter issues will be litigated in court. thank you.

>> great. thank you so much. now i'd like to welcome -- yeah, nate and professor donahue to join us back up on the stage along with the professor who is the founding executive director of the center on privacy and technology and prior to founding the center, he served as chief counsel to the u.s. senate judiciary committee -- subcommittee on privacy, technology, and the law. he is an expert on all things digital privacy and will be moderated questions for our first group of speakers. welcome. >> so, can you hear me? wonderful. >> sorry. just a note on logistics for folks in the room. we're going to break for lunch at 12:30. >> i feel like a kid in an intellectual candy store, and i know you do too, though, so i just have, i think, three questions for our amazing panelists, and then -- and then i will open it up to the

audience and we'll have a broader discussion. first, i would love to give you, nate, the chance to respond to laura, your rich critique of this this opinion, of it, and your being persuaded much more by justice gorsuch's arguments. nate, you know, you did say in your remarks that, yeah, you know there's going to be a lot of litigation, but is it so much that it's a real mess or should courts look to justice gorsuch to whatever reading they can since he's in dissent? what do you agree with what laura said? >> yes and yes and yes. so, i think there will be a lot of litigation. i think that's a good thing and it's not as if there's been a dearth of litigation in the four seconds since smith and miller. we had, i think, five u.s. courts of appeals ruling on this, generating in excess of 20 majority concurring and dissenting opinions, really

trying to grapple with how you make sense of these now outmoded precedents. so, you know, those courts were doing their best. courts are going to do their best going forward. i do think there's a lot to take guidance from in chief justice roberts' opinion. but i don't disagree with you, laura, that there's, you know, that it's going to require a lot of interpretation and we're kind of at sea a little bit for a little while as courts work this out. and i think there's a lot of value in just gorsuch's dissent, so he, you know, i said during my remarks it was really a c concurrence except for the last couple paragraphs where he faulted counsel for forfeiting these arguments. we did raise them in our briefs and i think what was really going on is that justice gorsuch was comfortable enough sketching out the direction he wanted to go, but didn't quite feel ready to put a period at the end of a sentence and so said, you know, in this case, i need not

definitively decide and that was fine for us as counsel for mr. carpenter, because we had five votes. but there's a lot of guidance going forward, and i think that courts are, you know, it's guidance that will help litigants flesh out more clear and particular arguments looking at federal statutory and state statutory protections for different kinds of data to make an argument that those anchor a property-like right enough to invoke this kind of property-based theory, looking at terms of service and contractual arrangements, to look at what kinds of rights people retain in different kinds of data, and i think it also will provide some impetus to lawmakers and to companies to look again at what kinds of legislative protections are appropriate. it so happens that there is a federal statute that telecommunications act that requires customer consent before a telecom can sell or disclose their cell site location information. we thought provided enough of a basis to -- for this alternate

theory and justice gorsuch discussed it a little and didn't conclude either way. those kind of protections in other areas are going to be very important too. >> with that last note on legislatures, i want to turn to you, laura and stephanie. i loved yourturn to laura and stephanie. i loved your prompt stephanie. doj gives thyself to a legislator. let's do that, let's say doj gives its the self to a legislator. given of the logic you find, laura, and this property based view on how this all should go down, and given your experience on how judiciary, what you think should be the rule? if someone from house judiciary calls you up, professor donahue, what is your right? what should the rule be? then i would have to turn to

you, stephanie. >> for legislation, not for something?? -- supreme court. i was at sabbatical this year before last. people have flown jones for with me in the room. a number of states have drone laws that deal with location, that have things with constructive property built into them. i'm pretty sure the next case will be california, has they have the most progressive legislation in terms of protecting digital rights. i would guess that is going to be where they will want to bring a case next, in order to move forward on the side of kennedy, but also on port chester side. there is the evolution of common property rights in

california, and it was location and information on where you are and what you are doing, even when you are in space visible to the public. in california there is something called constructive trespass, and a comes out of the paparazzi laws, so i would like to see legislation that takes account of constructive trespass. i would like to see legislation remaining property interest that you have in your property, especially in records that you generate just by living, that in some sense is very personal. that actually is a reflection of yourself, and you being in this world. i would like to see legislation step up to help create the broader context within the courts can move forward, both the sand, because i think this is a 5+1. just as we think of the five

shot a majority. to me this is a 5+1. i think we can move forward with that understanding, that more members of the court, and eventually 5+2 conjoined eventually. >> i'm going to give you an answer that specifically looks at historical data that is less than seven days, what i would do about that. my sense is at least it was them, maybe things have changed. in large part, many of the concerns that law enforcement had were probably less about getting a warrant for long periods of data, the 127 days, and at early stages of an investigation where they might not quite be able to meet the probable cause standard. what i would like for, and in interest in full disclosure, i read an article about this, i was frustrated about the whole

thing, and what we argued was that again as a compromise -- again, we did not have carpenter at the time with the limiting principles. but, we wanted to look at a more robust 2703 east stander. >> can you explain what that is? >> on 27 03d was the standard used in carpenter. it is a standard found in the store communications app, part of the electronic communications privacy act, essentially what the law enforcement must do is show to a court that there are specific and articulate fax that the information thought is relevant and material to an ongoing investigation. that is the carpenter court discusses as a probable cause.

what i found problematic is that there is not any kind of particularly -- particularity requirement. if you took that standard and added an element that required, again at this point we are looking at less than seven days of data, and require the court to say is the amount of data being requested reasonable in light of the investigation? if you have two bank robberies, and you are trying to see if a particular individual is present an hour before, if the court is making that kind of particularity finding, i think that will go a long way to balance the privacy and equities the law enforcement

needs. at the same time, i would want to add in, perhaps when it is appropriate, minimization standards. obviously law enforcement has to hold onto a certain amount of what they collect for discovery purposes, if they go to trial, because defendants may want to know who else was in the area. i want to see at some point in time, appropriate minimization, and i would also want to see things like transparency reports. congress is not able to legislate if it does not know what is going on. >> last question on my part, then we will open it up to the audience. i want to ask you about this one part of the opinion i keep coming back to, that i think is extraordinary. it is when chief justice robert keeps -- the interesting thing here is everyone was not before the court. everyone did not have 127 days

of location data pulled -- cold. nonetheless, chief justice roberts says quote on page 13, because location information is continually logged for all of the 400 million devices in the united states, not just those belonging to persons who might have come under investigation, this newfound tracking capacity runs against everyone. then, two pages later he says the government's position fails to contend with seismic ship and digital technology that made possible the tracking of not only carpenter's location but also everyone else's, not for a short period, but for years and years. this is remarkable because again, those 330 million people have not had their location polled. the scenario exists across

technology. i could be miss remembering but my recollection of how we resolve freedom is how the innocent will pull it. face recognition technology, something professor donnie has written about where you have everyone's face on video, but once you do search, you can match it against a drivers license database, it may have happened in the case of the alleged indianapolis shooter. those drivers license databases effectively have almost everyone in terms of adults. what does that mean? is it about the arbitrary power that chief justice roberts was talking about early on? is it about that dragnet tracking? what does it mean and why does it matter. >> this gets to something i

wanted to respond a little bit to other minimization records. it is the person that left the barn argument. i worry that if you import national security measures into ordinary law, which is what the suggestion is, that you -- your rights are eroding, because that makes it more palatable to collect everything upfront, is because the assumption is we will just dump it at the back and. those exceptions become the rule, and then that information gets you to other things because it is very effective. how we ask that question matters. the question of front needs to be do we want the government to have this information or not? that feedback into the question you're asking. when i read that i made a note and double checked about that. the reason why is i actually thinks this skips the warrant requirement. you cannot get the information until you have probable cause

that somebody is committing, has committed, or is about to commit a crime. up until that point, you have the right not to be monitored. this goes to the underlying animation behind the fourth amendment. the whole idea is that it is important in a free society to give individuals the right to be who they want to be, and to develop outside the gates of the government. the idea that if everything we say and do is being watched and recorded, that people change what they say and do. the recording of this information actually really matters in terms of social control. in matters in terms of self actualization, and matters in terms of being able to dispute government policies, political disagreements, disobedience, all of this. if that is recorded, and you can just access at any time, for something less than probably cause especially, that even with probable cause, and it changes the relationship between the citizens of the state.

to me that really gets at the heart of the fourth amendment, and what the founders are trying to do, which is to create a society in which people are free to evolve, develop, to question, to challenge, and not to have a government so strong that it knew what you were saying, doing, inking, and with whom 24 hours a day. that is a point that we are not reaching. that concern is probably why so many people feel this is the right decision, and is just how we got there that there is disagreement on. i think that was very well said. the echoes of the same concern in the oral argument on the jones case, the case about whether to search under the fourth amendment to attach a gps tracker to a suspect's car. chief justice roberts asked the counsel for the government. can you clarify for me, is the application of your theory here is not a search under the fourth amendment, to check a car with a gps tracker question the application of your theory that you tomorrow could track this is attached gps trackers to all of our cars. government counsel is forced to say yes, that is the application.

that is what you are quoting is just a common sense recognition that technology and changes matter, and unless the law keeps up, we will just be swamped by the categorical levels of efficiency, ease, and in expansiveness of these kind of -- kinds of tracking technologies. i think it is tremendously important. >> the interesting thing for me is that this is a database argument. this is not a search argument. this is who is in the database and who can be searched. i never have seen it stated so squarely. there is a little bit in the dna opinion with justice olea, but i have never seen it stated so squarely. there is something about this being so clear.

>> i want to respond to laura's point. there are some technologies that just by their nature they over collect. when you do a tower dump, you are getting a bunch of people's location information that is not relevant ultimately to your investigation. capture technology over collect. it may be looking for a particular phone, but in the course of calling out to that phone, you may collect other things. i was simply suggesting, because congress certainly can create privacy protections that the fourth amendment may not require, that minimization is a good way to make sure the government, in this case law enforcement, is not storing the information that is incidentally collected if you will.

i would just have to concur with nate's response about what carpenter pulling from jones is about. they were wonderful. folks, we have a question from bob. who should we ask afterwards? bob, please go ahead. >> i want to remind people that after all it was decided, the congress overturned it in part, bypassing the right to financial privacy act. right to financial privacy act said that if a federal government agency wanted to get your records, that had to give you notice, and you had 10 days to go into court and show that the records were not relevant to a legitimate law enforcement investigation. it is an incredibly low standard. congress then exempla date --

exempted a bunch of agencies from this minimal requirement. this was a democratically controlled activist congress in 1978. do i have hope that congress can actively do any of this in the future? a call for reform has been sitting around for a long time, they have not been able to pass that. getting anything out of congress any time out of the next 5-10 years is incredibly small. >> i am not going to prognosticate about what congress may or may not do, but what i will say something about the notice requirement you talked about. i think it critically relates to the importance of a requirements theory. the government's position is that it does not have a constitutional obligation to

provide notice to the subject of the investigation, in other words the person whose phone records they are seeking. they send the request of the phone company, the phone coveney knows about it, the respond or challenge it in court. one reason why it is so crucial that the court concluded a warrant based on probable cause is that the requirement here is if we continue to live in a world where notice is not being provided by the government to the subject of the investigation, and at least now we have this high level protection sitting in the middle of -- that a judge has signed off on. even if the person being investigated doesn't have a right to challenge the search ahead of time, we are in a world with greater protections. i think that is a piece of the puzzle here, but does not speak to what congress could or should do in a position. >> i just want to add, one of

the concerns i persistently have is that when you technology becomes available, law enforcement first instinct is to use it before they are granted authority to do so. congress never said you can use ims catchers to use all the telephones. yet, they are using it. initially that was law enforcement sensitive. nobody was to know how they work. their black boxes were trying to pry open how much this is used, and how much by each department. remote access or hacking is another example. nobody said in congress, law enforcement you can set up fishing hole attacks, or you can use char pornography to try to catch individuals engaged in child porn type activities. yet, they are using the technologies. as we move forward, especially with technology, the lifecycle

is short for products. i would like to see congress step up and say when new technologies come out, and this is a position a number of states have taken, and local police departments with jones, unless they are granted permission to use drones, they do not use them. there needs to be some sort of a toggle switch to force congress or the legislator of the state to act, before this technology can be used in ways that have a deep impact on citizens rights. >> i am curious about that -- what that legislation looks like. local ordinances, i think the ecl view, require that kind of approvable -- approval before it is adopted by police. >> i am talking about 5g deployment, it has enormous

implications to the specificity and granularity of information data. we are going to have networks that will deploy maybe tens of thousands of microcell, in cell, fenton cell, whatever so in the city elect new york. they will provide new possible platforms for attractive services that will provide subsidization opportunities, not unlike the internet to suppress the cost of access, and benefits from communities very much. on the other hand, it is a fairly urban centric deployment scheme, so there is a potential for this to impact on the use of such networks for surveillance and social control.

i put it to all of you, what opportunity does carpenter offer us to analyze that issue, and is it more properly left to the courts or to the legislator because of its deep complexity question >> do you mean analyze the issue of the deep impact question >> yes, that is my ultimate problem with this. also i'll sit at the same time while allowing these networks to unleash the commercial opportunities and the benefits i described to the precise communities that can be impacted by the surveillance elements. >> i think you're one important part of the majority opinion in carpenter was that it cannot prescribe there should be some analysis and each individual case to look at how big the

sulfide sectors were, how in cells that were, how precise they happen to be. in the majority's opinion said we have to take account not only of the data in this case, from 2010-2011, but also the state of technology today, and the trend going forward. the rule is that it is a search, and warrant is required to obtain this kind of cell phone location information that allows pervasive tracking. but i think is an important mode of analysis, and good tactical protection, that attempts to future proof that ruling, at least in the context of location data. >> chief justice roberts specifically says he is anticipating these networks become more precise. so he is anticipating this result. he does not reach the certain impact of this, which strikes me as much more of a congressional question, if not

congressional is a congressional, maybe state legislators, in terms of the policies states want to adopt in terms of these networks. >> one thing i am wary about is a suggestion that we go to positive law, congressional, and -- that is an actual enactment by the legislator treating statutes, laws, creating various protections for data, but also look to terms of service and contractual protections. i think that there is something that is attractive clear, but it risks a kind of differential privacy availability, some people are going to be able to contract with a company that is operating the more expensive more privacy protecting services, other people that have monthly plans without a contract may be subject to data retention that is worse. i don't think that is where we want to be. i think we want a consistent level of protection, so that some communities are not left out in the call. >> stephanie, any closing

questions? >> i imagine, let's say in a perfect world, but the best way to get at these issues is both through the court, and with congress's help. at times, the fourth amendment can be a blunt instrument. congress when it is going, and the stakeholders when they are willing, can get up -- more nuances. again, i don't have a crystal ball, i don't know how it will all play out, but i think now that we have carpenter, it is a call for congress to exercise that the nuance that it is able to do through legislation. >> this is a regular dance that happens. it is in perfect, but it is there. it is now 12:30.

it is about time to wrap this panel. if you will please and join me in giving them a warm round of applause. for those of you in the room, help yourselves to fit on the back of the room. the bathrooms are out by the elevators. coming up wednesday morning, former senator judiciary

conforming a nominee. vote republican congressman francis rudy on president trump meeting with nato leaders this weekend in brussels. be sure to watch cspan's washington journals, live at 7:00 eastern, wednesday morning. join the discussion. president trump has landed in brussels belgium for the nato summit with foreign leaders. after that, he will travel to the united kingdom with meetings with british prime minister theresa may, and a visit with queen elizabeth. from there, the trip continues in finland, where president trump will meet with the head of state of that nation, and then hold former talks with russian president vladimir putin, including a one-on-one session with translators. president trump will return to washington once that concludes.

next, marks by the mexican ambassador to the u.s., on relations with his country. ambassador gutierrez fernandez spoke with the institute, this is 50 minutes. good morning, i am john walters, chief operating

officer of hudson institute. welcome to hudson's betsy wally stern policy center. welcome to those who are joining us on cspan and online. saturday, 1961, huston hudson institute is the leading voice of capitals around the world. and our thanks publicly, i want to make these to our many friends and supporters to allow this work to go on. we hope you can join us for some of our future programs, including july 13, the director of national intelligence will be at hudson to discuss intelligence community transportation efforts, and the possible impact of russia cyber influence on the elections in november. we also hope you will subscribe to our in-depth podcast, available now on itunes and google play. we have an important program today. on sunday, mexican voters

elected mr. lopez over to their country's new president in a landslide. he and his newly formed party have promised to address the violence in mexico, and equality. he will be sworn in on december 1. among other policy proposals, he has proposed to increase subsidies to those less fortunate in mexico, and review a pass policy that opens vesicles energy sector to private investment. while it may come to a surprise to americans, he did not campaign on issues related to the united states or president trump. instead he focused on domestic issues. nonetheless, mexico and the united states will remain deeply intertwined economically and culturally. we are eager to hear your mexican ambassadors thoughts on topics, and what mexicans and their neighbors to the north

can expect with the new president. let me introduce the investor from mexico gutierrez fernandez. he became mexico's ambassador in early 2017. he served as managing director for the north american development bank where he focused on infrastructure development and financing along the us-mexico border. mr. gutierrez had a diverse career and mexico government survey and prominent positions in the areas of trade, finance, diplomacy, passionate kiss security, and did so under for president. walter russell reed

who will lead this discussion with ambassador is a distinguished fellow at hudson institute, also the james clark chance professor for foreign affairs and humanities, and the golden review columnist for the wall street journal. >> he is an honest graduate of groton and yale. please join me in welcoming ambassador gutierrez and walter reed. you should have cards on your seeds which you can jot down questions so that we can do this quickly and smoothly, so we can get as many in as possible. someone will collect them during the program and pass them to walter. use the cards, and we will get everybody in as much as we can.

>> thank you john for the introduction, and thank you ambassador for joining us. i should say the ambassador has urgent business to do. when we finish the program, he will need to exit so he can get to the telephone, apparently this is a day where important calls are being made. this is a really interesting moment in mexican history, and the history of us-mexico relations. from your perspective, as a long-term participant in mexican politics and now as ambassador, how do you see things in this transformation now? >> let me thank you hudson for inviting me to be a part of this morning's event. thank you john walters, it is an honor to be in this dial up with you. it is a historic moment for mexico. for many people, mexico's

political decision has taken a long time. some will argue that it started in 68 with the student movement, some will argue that is started in 97 when for the first time we had a divided government. some will argue that a starter in 2000. i think it is true that mexico's transition has been somewhat in bulk, and the since it has taken a long time. for many, what we were spending, was having someone left to deal with. the most important thing i would point out in this respect, with respect to sunday's selection, is the fact that i think it reflects mexico's democracy, that we have a strong democratic institution. i think there was a very clear result in favor of the new

president, one that has been timely recognized that not only the other competing candidates, but by everybody else. i think it is extremely positive. i think they did so with a clear sign of patriotism. i think that is positive. people would have not expected perhaps a few years ago that somebody from -- it happened and it is taking place peacefully. despite of the many challenges we still face, sunday's result is extremely positive. it has certainly caught the attention of many people who are proud obviously those who are mexican. it is true that campaigns usually take place largely

centered on domestic issues. that was the case and mexico's past election. nevertheless, you cannot underestimate the importance of the relationship for mexico with the united states. i think by large, the candidate including mr. andres manuel lopez obrador , were more or less in the same place with respect to the united states. i think they recognized the importance of the relationship but, i did not see in any way an anti-american sentiment within the companion. i think that is also positive. i am pleased about the fact that we have, if i may use this expression that [null] bashing was used to gain political points.

as you know, mr. andres manuel lopez obrador has already spoken with president trump. they have expressed -- crossed their first impressions about the relationship. from what i know, that conversation was respectful and constructive, and that is important, and that is good. i think we can expect very soon that the transition team will be in contact, both with the mexican government, then with u.s. government, with respect to the us-mexico bilateral agenda. i'll just mention as an introduction, it is no secret that we have important tracks in the relationship. one has to do with trade, and one has to do with security, and the other with immigration. i do expect we could take advantage of the long-term

decision of mexico in five months, to make the most out of this period. >> this transition period, of five months, should we expect mexican policy to change gradually during that time, or does it stay on the same course, and then there is a change within a team comes in? >> quite frankly, enrique pena nieto is responsible for the governing of mexico until december 1. he intends to be -- assume fully that responsibility until that time. yet, he has very clear -- clearly expresses willingness and interest in working with a transition team with mr. andres manuel lopez obrador as closely as possible in order to address the many challenges that mexico does have. i think that is very positive. >> if you remember in previous

locations, one of the transition was marked by a post- electoral debate, in complications. these have not seems to be the case right now. as i mentioned, everybody has recognized the results. i think that allows mexico to make use of this five months, and i think that is positive. >> i should ask, is the new president-elect of mexico have a twitter feed? >> i think he does. >> that may be where the real diplomatic action starts to take place. one thing that has surprised observers in the u.s. is a sense that actually on nafta the new team in the old team don't seem to be that far apart, that there is a lot of continuity in the enrique pena nieto position and the andres manuel lopez obrador position. >> just this morning, i'm -- i read some paper clippings on the

part of the chief negotiator on the part of mr. andres manuel lopez obrador , expressing terms in support of what mexico's government has been doing as part of the negotiation, supporting the lead of the trade negotiation for mexico. i have seen some discussions on the part of andres manuel lopez obrador referring and recognizing the importance of international trade with nafta, and also his interest in wrapping up a new nafta 2.0 as soon as possible. we have made it very clear about it. we think that it is in the interest of the three

countries to wrap up a negotiation on nafta 2.0 as soon as possible. all of the countries have other challenges, and it is a very complex political environment and national trade environment. i think that the interest of mexico, the united states, and canada will be strong if we can get to and after 2.0, that is balanced acceptable and possible for the three countries. we are not there yet obviously. we started formal negotiations in august of last year. the three parties have been criticized for the fact we have been delaying a result. the first time was when we wanted to wrap up by december. that did not happen. then, we wanted to wrap up by march of this year, that did not happen. then we were stuck with an

agreement in principle of may of this year, and that did not happen. i would not be too worried about that. progress has been made to be as suggestive as possible. as compared to the 1990s, 91, 92, 93 when nafta was negotiated, this u.s. policy environment this time around around the nafta departments, and that makes negotiations more difficult. what i do believe going to mexico is the fact that mr. andres manuel lopez obrador has eight -- expressed an interest in proceeding with a new nafta, that it is most favorable to mexico. he has also very clearly mentioned that he understands the importance of foreign investment in mexico, and willingness to work with a

private sector, not only mexico, but in the united states. i think that is positive. >> what would you say are the main gaps, now, in the nafta position, where mexico -- the mexican and u.s. positions are the most difficult to reconcile? we have said that publicly but nevertheless we recognize that it is an important item for the u.s. administration. in addressing the deficit, in all candor, the auto sector is

really important because that's where you find an important part of the trade deficit. i think that there still -- i think we moved closer -- to an agreement on how we modify rules and all the provisions with respect to the water sector, that would allow higher regional on -- on the industry. it is not -- the industry is very much involved. the most important thing is that your industry, in fact the north american, therefore the mexican position has been okay, let's be careful about how do we go about modifying rule supporting and do anything else. we don't want to shoot ourselves in the feet. and then find out that that we ended up doing was sending investments abroad from north

america. that remains, i think there is progress made and that is certainly one of the important facets of issues. the other one has to do with the government. the different dispute mechanisms. that implies -- dumping, chapter 1911 and 20. and there is the sense that the united states want certain strengthen in those mechanisms in the way that nobody is a the u.s. courts. we tend to think that international rules and procedures that we have established our helpful for international trade but i think that those are issues that in my view should not derail the negotiation. i think there's ground to actually update and modernize those provisions in a way that everyone feels comfortable or

satisfied. there's another thing that is part of the discussions that i would put within the governing part of the governing -- which is the sunset clause. we talked about this which is the idea of a provision on ending the agreement automatically unless some action is taking -- taken. mexico is clear, we are not in favor of that clause. i expect a lot of obstruction to take place in that regard. we have talked about -- it makes sense to have a stronger review of the agreement every so often. the idea of a sunset clause in itself certainly is not something that we believe would be helpful. and our canadian friends to my knowledge have the same thing. finally, in all of that it has to deal with labor and environmental standards. on environment, what that's

when we did nafta, 25 years ago, and a lot has changed since then, first of all the environment was not front and center as it is today. i think that we can strengthen the provisions on the environment that are -- that the side agreements previously that now would come as part of the formal agreement. i think there's basically a good consensus on what needs to be done. labor standards. the concern is that we must have as a region better labor standards. the truth is that mexico is in favor of having better labor standards. we have serious discussions about their words a reform that was pushed by president pena nieto in 2014 at the

constitutional level. now there is a secondary legislation that needs to pass that will strengthen labor standards that will provide for more transparency -- elections of unions and procedures within the union. we don't oppose that principle. i think that my view is that it is a scenario will you find the next administration willing to work and i think that we will audibly get to an agreement. so those are the three facets. we can expect that nobody will be in my view, nobody will be perfectly happy. it takes compromise. to reach an agreement like this. it is likely that each party will be or gain some or lose some. the important point is that in balance, we are strongly believe a successful new nafta 2.0 is

fundamental for the competitive -- competitiveness of the region as a whole and certainly for mexico. and that is actually and appropriately modernized and is the right tool the will keep the north american reason competitive. that is the central argument we have been making. i think there are many people in the united states that believe and they are from congress, governors, private sector that believe this is the right approach. >> i know that anytime there is a political transition, there can be uncertainty in -- and this can play out in financial markets. there has been speculation that with at least more left-wing things that were said during the campaign, you combine that with generally nervousness in emerging markets, with rising interest rates in europe and the u.s., the minute you add onto that some of the concern

about nafta, the shadow of the future of nafta, the potentially mexico could face some financial difficulties. do you see the administration working together to prevent that. i do think that on the part of the lopez obrador regime, there is a clear understanding of the importance of keeping sound macro economics on the mantle. i do believe that. i think that is important. the second point that i would make is that -- there is an expression that you don't buy trust, you rent trust. markets are very cheap. they are demanding. therefore, we must continue i think, mexico should continue to be very careful about positioning itself as a place attractive to financial investment -- we are an open

economy and we should continue that regard. uncertainty about nafta is there. i think that -- we will continue to be there at some level until there is the second evolution. i will emphasize that the first -- very first reaction that we see from mexico's government elect if i can use that expression, is positive. i think it has reflective that. that is good. i do expect that the transition to -- as it has done over the past month, will be engaged with institutional investors. we should always be careful with that, we have over the last -- not very good experiences with some macroeconomics downturns in mexico, but that

goes with saying that something is important which is it took at least three decades for mexico to build a fairly good stable modern democratic institutions. so whoever -- once it is confirmed, legally confirmed, the new government as it happens in a democracy, will have to operate in a system of checks and balances within the different branches of government. more importantly, i think there will be a very demanding civil society in mexico. civil society in mexico will strengthen, taking a much more important role in defining quality to the different realms. i expect that will continue to be the case. that is always healthy. also we have in my view, we have a very independent and

free press. that are helped -- that helped authority keep and checked. we can expect that will continue to be the case in mexico. that is always useful. >> i seem to be bringing up problems here this morning which is not really my normal disposition but i know that a lot of people in the u.s. and mexico and the region have a concern with let's say a general deterioration in the economic and security and stability outlook for a number of countries within central america, going over to venezuela. where we see economic problems, political violence in more than one country. obviously in the u.s. we feel rising pressure of refugees fleeing chaotic conditions. is this a concern for mexico and do you see a future for u.s. mexican cooperation in working

on these issues. >> i do. i think that it is time for our friends from central america, especially northern triangle countries, the united states and mexico to have a serious conversation about developments and migration. and the linkage between those two. about security and migration. i have to say serious because not because we have non--- not done anything, but last year for example, the u.s. co- convened with mexico in an important conference in miami in june of last year. serious in the sense that we need to have an effort hopefully by the regional -- the whole region, that is permanent, systemic, stiff, and that involves resources.

we cannot, i think, be satisfied , any one of the countries in terms of what is going on and how we manage the migration. that is the truth. i don't think you the united states can be satisfied and i don't think we can be satisfied and i don't think central americans can either be satisfied. it is a very complication, you need to address the root causes of the migration and that is not easy. we must do everything we can, mexico coma central america, to make sure that immigration is not a forced decision. as it is happened in the vast majority of the cases. that is not the responsibility of the united states, that is on us. we certainly welcome the support of the united states in that regard. the measures that have been taken over the years to address prosperity and security in the region are welcome. i just think we should do -- we

have not done enough. i think it is appropriate to recognize that. i think that it is in the interest of the united states to work with central american, mexico in that regard. by sea and openness issues from the part of president trump in the administration. next week there will be a meeting with guatemala, a working meeting and we expect that -- either late in the summer or fall with central america. our self in the united states. and again, there is three important things to do. work together to do everything we can so people are not forced out of their countries. because of lack of opportunity or any other reason. the second thing is that we should think carefully about their will continue to be movement of people because

that's just a fact of the century that we live in. i think everybody wants for that movement to occur in a way that is legal, safe and orderly. do we have sufficient avenues for that. are we working among the countries and within the countries to make sure that that happens. then finally, we need to address very carefully -- the humans boggling. it is happening. if we do that, if we make a serious effort, i think that again it is not that it is a complex phenomenon but i think we have a fair chance of addressing it quickly. >> it does seem that with the u.s. moving aggressively, to try to close its border, its southern border, for some time the mics -- the migration to the u.s. has been a safety valve for the central american migration to mexico is like a pass-through phenomenon. if the u.s. border is

significantly harder to get across, does this mean that mexico now faces a greater issue with central american migration, or do you think it would slow the u.s. frontier. >> first of all, one of the very first elements of the sovereign of the country is to determine if migration -- who enters and how does it enter. >> it sound like something president trump says. if you don't have borders or not a country. >> i do believe that borders are there for a good reason. can we think about borders and the complex days in the context of -- it implies several things. it is a legitimate dashboard or security and border -- we have said that publicly. number two, mexico does not condone or promote illegal

immigration. we lose our best people. mexico loses one are people are forced out. having said that, if you look at the numbers, if you look at the numbers, in the year 2000, border apprehensions in the southern border of the united states, it was 1.6 million out of which around 98% of them came from mexico. according to cdp figures, in 2017, apprehensions on the southern border were 300,000. 311,000. 45% of the mexican. there has been a huge change. there were years when the number of apprehensions was 1.6 million. we are now to about -- last full year about 600,000.

there has been a change in the profile. more families, less solo mails. there are reasons for that. more asylum-seekers than not. there's a change. we have the possibility of addressing that in a way that does not confront our countries -- >> why have mexicans -- the numbers of mexicans reduced? in part certainly the tariffs. no question. that because we like to think that we have done her homework for the last several years. in spite of challenges that we face. their people are doing better. perhaps a little bit better. if people have access to hope,

these people have access to mortgages, and a car, if they have a little bit of health insurance or health. they will be less inclined. i think trying to be objective, mexico has done its work. the numbers will reflect that. we must continue to work in that regard. the other thing is yes, borders implies security. we can work together to make sure that we, the region knows who is entering, when are they entering, and in fact who. we work very closely with the united states in that regard. monitor flows of people that come into the region. a security strategy is only about identifying risk, assigning them a probability that they will materialize and then you see whatever resources you have available to reduce

that problem. by and large that is what we do with the united states. we can do more. and we can work with the central american friends and i think there is sufficient common ground in that respect. >> a question from the audience that leads into our discussion. concern about the drug cartels and wondering how policy might change vis-@-vis the narco trafficking with the new administration. what the state of play is, how will affect the have we been at limiting the rise of these cartels. >> if you look at what most people think, i think it is clear that we have been successful. or successful enough. security or security is something that vibrates in the election for good reason. i can only think that first of all, the last administration and mexico have confronted as

best as possible the organized crime. by many different methods, we are not doing a good enough job. it wouldn't be -- you have to recognize that. i think number one we need to take in account this is an issue that takes a long time to address. i think that experience in other areas of the world will point to the fact that -- there is no silver bullet to address this. number two, i think we need to do a better job and this is the sort of conversations that we have had with united states, we need to focus more on disrupting the is this model that going simply after the heads of the cartels. if you look at the number -- when the president pena nieto administration started, there were a lot 122 identified main

targets. i think 108 or a little more or behind bars or are dead. according to that matrix, a rather successful thing but that does not seem to be the case. we need to do is disrupt the business model because if you don't disrupt the distance model and you have a market as we do, and we don't consider the supply and demand of whether it is drugs, weapons, money, etc., we will not be successful. last year we had two high-level guys dashing dismantling organized crime. i think they were useful and i do think that corporation, cooperation between united states is very good. in spite of the difficult political moment.

we do that because it is in our own best interest. you cannot, nobody can tackle transnational organized crime if it does not work with your neighbors and partners. that's the truth. i hope that will be my opinion, that that cooperation continues. as i said, if the perception in mexico on the overall political environment and the relation continues to deteriorate, then the next government and any government will be less inclined to cooperate. not because they don't want to or not because we don't want to or not because we don't think it is important, because simply the political support for it will be far less. i think that needs to be taken into account. in that sense, the relationship is hopeful. we have to look at -- >> one of the audience members asked that considering, and this is both leaders of mexico

and the u.s. now are more nationalistic at least in some of their rhetoric. does this mean that some of these problems like the drug cartels may become harder to resolve. >> i think that what happened in mexico's -- what has been happening everywhere, there are two main elements. first there is a huge disappointment on traditional political parties everywhere around the world. secondly, there is the purge of disruption around the world. change is good. people need to be careful when taking quick changes. but, i don't think that and you can very well label and reince priebus as a nationalistic movement. i don't think that is directly related to with respect to security corp. -- cooperation. from what i have heard, the public expression during the

campaign and in the last few days, mr. lopez obrador has expressed an interest in having a relationship with united states. and with president trump in particular, respectful the hopefully functional and that has taken a constructive approach in that regard. based on what i have heard. that's a good opportunity. >> better relationships than say with germany. >> better relations with mexico than germany. >> for the u.s. >> [ laughter ] i thought you were talking about software. -- soccer. >> mexico is covering itself in glory. >> is maybe not everyone in the u.s. nose, mexican prosperity is regionally -- it is not region different, in jordan -- in general, northern mexico has been doing somewhat better than the southern, more rural parts

of mexico which is where the new president-elect has his political base and where he is from. how will it change the balance of government and political power in mexico. a little bit from north to south. will that affect mexican economic policy, external policy, how do you see that working? >> first of all, i think is base is pretty much everywhere. he did pretty well. he ran a good campaign and he convinced people to my knowledge, he won a majority of the votes and all but one or two states. that is quite something. irrespective of what anybody else thinks. mexico does have an important challenge in terms of the diverse it -- regional diversity. if you go to the north, and abusing a generalization, nor it seems to be more industrial, better linked to international

markets than the south. i think that is to some extent true. you see areas like -- in the middle that are doing extremely well. whose growth rates are way above the national average. you also see the south, some states and regions that are lagging behind in terms of economic growth. president in the natural -- present metro address that. legal reforms and i won't -- it is a way to address those disparities by providing certain incentives and certain institutional properties in a way that we can -- that certainly is needed. but i don't think that with respect -- i don't know about

diversity of opinions and whether that plays here. if you live in cities closer to the north, there are -- we could label 16 metropolitan areas from metamora's rounds bill to san diego and tijuana. if you see those regions, if you take the example of tijuana, and san diego, they are very much interdependent. the perfidy example is they have a shared international earthworks. between san diego and tijuana. they are increasingly thinking about ways to compete. my point and i don't want to expand, my point is that for many people along the border, i think the natural day to day interaction in terms of trade, in terms of tourism, and even

family ties, is just -- it is just part of the way of living. i think that is why sometimes the border or the border region, and i spent some time there about seven years, sometimes they are a bit skeptical about mexico city and washington because they say, you don't really understand what is going on. >> how large of an impact in mexico has the humanitarian border issue loomed lately. with the family separations and certainly a lot of publicity here in the >> there was a huge concern

about family separation as it happened here in the united states. even the numbers of the mexican national symbol is quite small,>> is it much more central american?>> actually the number of american, it changes from one day to the other. the number of places around the neighborhood of 25 at least. nevertheless, i think it created a huge concern. there had been conversations. it's taking its own stance on the matter to address it. part of next week's meeting will need to center on number one, what is being done to secure these funds. to address migration in a more

broader context. to address the issue of asylum, that is not an easy topic. it is also true that the numbers of asylum requests have gone in an important way. this has happened at a different level. that is why i think you know, we need to have this same conversation between the united states, mexico, and central america about what's going on. if we do not do that, we will find ourselves i think, just managing this rather than addressing this serious solution. at least for a while and i do not think that is in the benefit of anyone, >> when it comes to the mexico

relation consular officials on u.s. authorities with immigration cases, humanitarian cases, we find the cooperation is usually good and professional, do you think it's more professional or difficult?>> it varies from region to region or time to time. one of the central objectives here, it's to ensure that vesicle -- that mexico nationals irrespective, are subject to due process. and that their human rights are also asserted. and again, i do not mean to condone or promote illegality and it's not what we do certainly not as the government pot -- but we base our work on what it is in the sort of progression. and, we do work frequently with

the administration on these different accounts. there is no other way to solve this beyond having serious and at times difficult dialogues but that is what we do. and i think we sometimes have very good experiences and sometimes they are not so good. but it is the basis of what we do everyday. >> a final question because we are coming to the end. how would you characterize your relations with the trump administration? not simply at a political level but operationally, are you able to, when you've got questions, are you able to get good and quick answers? is the state department and other government agencies you work with communicating?

do you feel that the machinery of the government is a little or not necessarily working as smoothly? >> when i came here and i was at the bottom of my certification process in the senate, i mentioned something, i said to the effect that the us-mexico relation was at a critical point. it came up in the news. i said yes, we are at a critical point, understanding this critical moment upon the time at which we could either have work in spite of differences, have a much more mature relationship and one that works for both sides. >> we want a relation that works. or, we could, there could be a major setback within the relationship.>> the past year and a half, i think we are in better shape this last year and

a half. along with the team here at the embassy, i think that there are people on both sides, trying to come to the best possible solution. we do have that skill. i think many people in the united states have for the first time, have had to go out of their way to talk about the importance of this relationship. from a critical point of view, mexico, we have lessened our morals somewhat, we have a image problem that we need to address. we need to support to them to be present and work with governments at these different levels with congress in the business sector. in order to simply have the systematic presence, on what the relationship is about, but

we are in better shape. i do think that we have a chance still to construct a better relationship. the difference is that we have, known in public, having computed with the fluid communication with the ministration. i'm very clear about that. sometimes we are criticized. you could have differences and still fluid communication but if you do not have fluid communication, frank, open, continuously, it's sometimes harder to solve these differences. the differences are there. but we will continue to try to address them with clear medication here and in the united states.>> we are all very grateful to the ambassador for his time and the illuminating presentation. thank you so much.

thank you.>> thank you. >> coming up tonight on c-span 3, the shakespeare theater hold a mock trial with the supreme court justices. former first lady laura bush has a discussion about conservation. the judicial conference, then later, a discussion on the impact of the trump administration the regulations. >> supreme court justices took part in a mock trial as part of the regular series hosted by the shakespeare theater company in washington. it is the trial of the morgan insurrection in camelot. >>