own deep simply swear loss and the appreciation of the service of your children and your children and your families sacrificed -- her family's upper price. it is the case in the 1970's extent a to a limited more, shall we say, modern face and afghanistan. it was a country and number of people travel to. afghanistan was then and is today one of the world. it is in th >> join this conversation and find this discussion in its entirety on c-span.org. we take you live to a forum on cell phones and location data privacy. police need lawrence to search cell phones.

, there arede context ,ome folks joining us remotely 10 days ago the supreme court issued its decision in carpenter versus the united states. the question was whether the government had to get a warrant to access historical cell site information. which cell towers are communicating with cell phones as users -- users move about. that yes, the government must get a war to obtain those records. you will hear a lot of observations regarding the case today but i wanted to open with a couple of reflections of my own. my interest is not just about my role as a privacy advocate. it is also personal. i was an analyst for the

manhattan district attorney's office. i helped prosecutors understand how information could be useful in their investigations. i helped them order it and provided analysis. you will hear a lot today about what it is, what it does and can be used to do. how it has been used by law enforcement, but what i want to tell you about, what it was like to work with these records when prosecutors were just beginning to make widespread use of the cell phone information. the recordsdering but analyzing and plotting was complicated. the office didn't have a coordinated way to show support once the records came in. individualooking up cell sides one by one -- cell one, printing them

out and going into court with those. , was a freshfaced college grad and someone came to me with multiple days of information pertaining to multiple phones and asked me not only to analyze the records but to produce video exhibits highlighting them over time. i did that. they were prosecution gold. celle video a defendant phone was shown in the middle of the night connecting to a cell site a short drive of the parkway where the body had been found a few days later. that evidence was tremendously important. i had doneot around this others started asking for it. not just prosecutors but other bureaus as well. this office has 500 prosecutors.

i had people working for their cases. it was overwhelming. the demand was huge. it made it difficult to work on siteing other than cell location. the rest of my time at the manhattan v.a.'s office i looked at all kinds of investigations. in retrospect, i have a couple setbservations to share, to the table for the day. i will not belabor them. i'm standing between you and a series of amazing experts who make these points better than me. experience, the way it so quickly came to be in extreme demand happened because this type of evidence really did world of options for

prosecutors. as stated in the opinion, it enabled the government to travel back in time to retrace a person's whereabouts, subject only to their attention policies which maintain records for up to five years. the equilibrium adjustment theory, it expanded police power in a truly significant way throwing off the equilibrium we were used to. , location observation information has been used not only to discover information about an individual already suspected of a crime, in circumstances in which it might ,e possible to get a warrant but also as part of broad investigations to amass vast

amounts of information of unknown value in the hopes of uncovering something valuable. can recall using information to attempt to locate witnesses or find out if any of the close hadacts of the defendant been in the vicinity when a crime took place. broadf these uses, these investigative uses will no longer be possible. these are two quick observations i am sure we will be able to poke at with a lineup of speakers. we are going to begin with the , a primer of sorts to ground the day and help us understand the context for this case. after that we will have speakers understand the big picture implications. then we will break for lunch. anothernch we will have

series of speakers understand the practical implications. for those of you watching on c-span or the livestream you can find the program with the agenda and speaker bios at bit .ly/carpenterprogram the bathrooms are out by the elevator. ok three to start is off, we are very fortunate to have a computer science professor from loyola, maryland. he has done a lot of important work modeling human mobility patterns. i am very pleased to welcome him here to georgetown law. welcome.

[applause] >> thank you for having me here today. sharea fun thing to something i have been working on for almost a decade with people who are not just academics. i started doing this almost 10 years ago, poking at cellular data records to see what would fall out. there is a lot of things you can find. just about how people move individually and in groups. obviously they have been incredibly useful for law enforcement. i would've to provide an opportunity to see what the data looks like, what can be done, and what can't be done. --t this data has limited what the limitations of the data are. first, an observation.

medication is 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 games predicated on the fact that if you communicate you are giving something away. obvious in the case of snail mail, i have to put an address that ties a to where i'm going to be. with less obvious telephones. you think this is a phone number. it doesn't say anything about where i am. but that is not true. 301, tohe dentist was pick a number i've given you a lot of information about where i grew up. i told you it was 301. that is an area code for the western half of maryland.

you know i come from maryland. a lot of exchanges. two of them are 262 or 404. i come from 262. so i grew up in billy. i even told you we had verizon. 262 is a verizon phone number. you know i grew up in billy. from there on the last four digits tell you the rest of the information. number i a telephone have a location. these things are linked. now we don't use land lines. we don't use land lines anymore. we use cell phones. they are not tied to anything. i am not connected by a wire. the paradigm hasn't shifted even a little bit. to place a call or

receive a text your carrier has to know where you are. we are not connected by wires. we are connected to cellular antennas. once you make that connection everything proceeds exactly the same as it always has. , my cell phone connects to a particular tower and it goes to the network. , i need to bek reachable. i have to be found. my cell provider needs to know this particular phone is connected to this cell tower. we are going to talk about what the records of this look like. any particular moment. call detail records.

sometimes it is called cell location information. i'm going to talk about what they are and then what we can do with them. we can do a lot of things. not.i'm what they are maybe a little bit about how that is changing as technology continues to advance. record.lls require a anybody who has had a teenager knows you can take a look and see who they are calling, and for how long. my parents were aghast at how long i would spend on the phone in the mid-1990's. you can see there are two phones involved. the two endpoints. you can see when the call started, how long it was, whether it was in going or outgoing.

everybody in this room should have some familiarity with this. this is a thing that can happen. what you may not be quite as experienced with is the information that is hidden, that doesn't show up but the carriers need to have because in the case of cell phones, when you connect to a tower you need to know about the tower. there is additional information that is added in. which antenna you are connected sector ofically which the antenna. the details don't matter. tower andhe starting the ending tower. whatever tower you connected. then you need to do maintenance work on the tower. you need to know where the towers are located.

we getut this together data that looks like this. there is nothing real about this except for the general pattern. synthetic data here. there are some random looking numbers. number. a phone there is the date and time. there is a duration. , is it voice or is it text? this goes on and on. this is fake data for a short time. but this is fairly representative. it is reasonable. particular.in the date and the time.

then the cell you are connected to gives you information. we can take this. before putting it on to a slide i made more extra fake data to make it fill out a little bit. mapill put that on the next. what is the power of this data. we can put it on a map. i created to fake users. i spent time on this. i wanted to have one talkative user. the pink one, i just picked a few points. this is common. then we get a map that looks like this. this is interesting already. mapives us information on a

of where somebody has made calls. where they have moved around. it concentrates more in the north. about did questions these users ever meet each other , or they in similar locations? for a talk,he data obviously. user in theellow same cell as the pink user. we can get information, was this user in the same place as this other user? , onehing else we can see of these locations, the yellow user hit this location twice. that is going to become important in a minute. people are repetitive.

people are predictable. everyone is unique but predictable. is anto the same place important future. map butut people on a we can ask to go further than that. were they there at the same time? we need to add that third dimension. i have a video of our users moving around. a second.is roughly you will see some pink and yellow flashes as users move around on the map. this time i have some timestamps see you can see where they were in particular locations.

this is a person moving through a city. you can imagine this would be a real person moving through a city. this time we see those people were in the same place. never at the same place and the same time. probably did not run into that. once we can see where people are, we can with this idea people go to the same place over and over again. start to find these patterns. maps of somee volunteer locations. these circles where the places we went and decided were important locations. we can find important locations. these are pretty close.

it doesn't matter how far they commute. we can find these important locations in their lives. ,ou are defined by where you go in short. if you choose random points from a data set that is enough to identify 95% of users. everyone travels uniquely. locations, only visit code is enough to identify half of the people. just a little bit of outside or facebookter feed profile is enough to go from locations to person. that with a less obvious fact that laura hinted at, we can get the social network of who called

who. if we are tracking a particular user we can identify who their friends are looking at who their -- who they are calling. their friends can be d e-anonymized. extrapolate and take this out, this is an interesting piece of research in belgium. they ended up grouping everybody. you have all of the blue dots, people who speak french, and the purple dots, people who speak dutch. find that just from these cell phone location information's. it has significant weaknesses. these locations are towers. not phones. they may have a range of a mile.

we could have 10 square miles of uncertainty. how many locations do you go to? there is a bar but also a church. a horseshoeley and place. there's lots of things. it could have a range of a mile, or a couple hundred yards. or you have bad cell phone service in your house. you call verizon and say you need and network extender. that tool is 10 meters. we don't really know. another thing is these ranges are funny shaped. this map is not clear. sometimes you are in big ones. it is complicated. the picture i showed you is like the one on the left were we have

fromapproximated coverage the towers but we get this coverage area that all overlaps. if i make two calls back to back him and maybe it goes to this cell one time and that sell another time. from a research perspective making a lot of calls, it pinpoints between those two cells. it can be hard to say a call means you are in a particular place. it records data only when called and sms is happening. invisible.s our records, because we use data for records, are completed separately. i rarely see them. when i do, they are almost

always inaccurate. calls are becoming less frequent depending on your status. as people in higher socioeconomic status use more and more data. before i put up a conclusion, location is not a gps trace. moving withomebody a trace they may go through their day with a movement pattern that looks something like this. park,o up to cliffside they make a loop through manhattan. they are incredibly fine-grained. they are giving you everything you need to know about how a person moves. and a cellular world it gets divided into cells. associate my phone to these cells, it may look something more like this where i

going to associate tower to tower. i am losing some of that granularity. the problem is exacerbated when we look at clsi. now we are only getting those information's when people make calls. maybe i don't make a call to that when iming cliffside park. , i have four phone calls. there he sporadic. then we get to the real world. the idea stands. butill get those for calls two of them are at the same tower.

so, i want to leave you with conclusions before i take some questions. you areave a phone giving away your location. physics dictates it. if you want to communicate you have to give away your location. this.are major caveats to we only see the information when you make a call or receive a call. data notwithstanding. only to the granularity of nearby towers. it might be a mile. cell.ght be in a fence you do not know. somebody knows. this location is incredibly powerful. we can use it to get a track of activity.

we can make a video of where you have gone. we can find things that are important to you. there were studies that everyone has 25 locations. halfop three will identify of everybody. you can extract those social networks. even if you are using a burner phone. you are calling the same people. if you're going to places that you go, a little bit of twitter feed can the anonymized that. -- can de-anonymize that. >> on what as a couple of questions. first of all, thank you. that was tremendously useful.

anythingphone users do to prevent their phone provider from collecting location information about them? >> i think not. the network providers need this for re-teen -- routine business purposes. >> what do you mean? >> they needed to bill you. are you roaming? they need to know how many minutes you are making calls. if you have a and, do you pay by the minute? they want to track your text messages. routine business purposes for that. they want to maintain their own network. if you look at a map of where verizon has coverage, verizon puts up towers strategically.

they put up towers in d.c.. they don't put them up in montana. they need to know where the people are because that is where they have the surface. they need to perform maintenance on that. they need the information about where users are making calls. you need to be connected. you have to turn off your phone's, not make calls or texts. airplane mode will do it. meaningful are no alternatives. >> unfortunately not. if you want to be connected you have to be connected. airplane mode is being disconnected. you could use wi-fi. you only talk through google

voice. yourself on provider will never know about that. you could do that. >> how many days of data do you need? for the average user, about how many days of data do you need to identify important places in their life? how much do you need to identify them? >> an interesting question. the more data you have, the better. the more data you have, the more you can show their location. we can have that up for debate. the important locations i put up, a few weeks of data is all

you need to get a rough estimate . the more data you have, visiting locations, the more the algorithm can find some of that ping-pong between cells and pull you away from the actual tower location and to a more immediate location, the more accurately can be. a couple weeks of data is really sufficient to find the big locations. home and work. home in particular sticks out like a sore thumb. work is not hard. getting third, fourth, fifth, sixth, those get more difficult and you need more data or. iti know i said i would turn over to the audience, but have you seen that change over time? csli,sly doing work with cdr. have you noticed a change in the density of the data?

you mentioned consumers are using more data. sibren: i certainly noticed the less sms, i stated -- text. in terms of the density of the towers, have not paid attention to it. i don't actually know. they are putting up more towers are the time -- all the time so it has to be getting more dense but the density of text messages and voice calls has gone down. you also see these splits of people who really text all the time, people making phone calls all the time. that has been shifting, too. laura: we have a question from the audience. i know somebody had raised their hand. gentleman in the picture. -- pink shirt. >> could 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 onto the scene, sees this case and says i'm going to be the privacy provider. 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 onto the data for billing. whether that is just you are on my network or somebody else's. you don't need which tower the person is on. seems like there is a lot of data being collected on necessarily. is there a bare minimum amount that is actually necessary for the business to do its work? i'm a researcher. i don't actually work in telecoms, so i don't want to speculate on all of the uses of

why they would want to keep their data. 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, make routing tables for calls, that sort of thing. there are reasons that you may ,ant to keep some of that data at least in the short term, to detect network problems, network failures, figure out, if there is a sporting event, where do i need to put myself on wheels -- my cell on wheels. you can limit that, bill yourself as we will not keep more than x. this pointare at where there is a lot of data coming in and not necessarily

enough space to store it all. i think there are reasons that a provider might want to limit the .mount of data that they store does that answer your question, partly? laura: let me ask this question. do you as a researcher notice the difference from provider to provider in the amount of data they store and make available? if you can answer that question. sibren: some of that is protected information. [laughter] accesssearcher, getting like, gettings, access to a gold vein. you get it,nd when everybody wants to talk to you, you are a rock star for a second. within the u.s., i've only had access to one provider.

they are getting more and more skittish. it is much easier as a researcher to get this information from foreign countries. , their willingness to share the data, the types of data they collect -- some of the things i didn't put up were what network these are from. vistar gets a lot of calls from this network -- this kind of research. different providers will provide different amounts of quality and data. it is really difficult to speak about what's happening in the united states right now. laura: another question from the audience. gentleman in the blue shirt. mention data is only recording when a call is made, sms received. my understanding is your own registers within a network.

is that not accurate, is that data not recorded in the same way? sibren: it is the second one. yes, your phone will occasionally scan, associate with a better tower. you are always try to get the best service. your phone currently has a record of a number of towers in area. you probably have a record of two or three towers on your phone but that is not stored on the network itself. when you associate with the network, often times it will have a rough idea where you are until somebody calls you. it is just expensive to maintain the location of every user at all points in time. the gain from a performance standpoint is not necessarily noticeable to the end-user. some of that might be stored on your phone but not the network. the associations that the network knows about are often not recorded in the same way, not stored for the same duration.

-- stored forshow a short amount of time that will show you every time you hit during a call but those intermediate towers are generally thrown away even after a month, to just get what i showed you, the start and end tower for performance reasons. right here on my right. middle of the crowd. is the granularity of the individual towers trending more toward precision, so within five years every cell tower will be able to do within five feet? things likeher topography and remoteness that make it as he or -- fuzzier? sibren: some of it is dictated by remoteness. if you were to walk around

georgetown, d.c., you see lots of buildings with these funny squares. the fake antennas that look like trees everybody sees. walk around dcm would get the roots of the buildings. e verizon building obviously has a lot of towers on them. you can only fit so many people contacting a particular cell. as areas get more dense, you need more towers. as i mentioned, people who are unhappy with the service in their particular area, you can get get more dense, you need more towers. something where it connect your cell phone to the internet. if you have a femto cell, the range of that is 10 feet. meters -- i was saying, i don't know if i'm in a church or a bar. if you are in a femto cell, you are in that femto cell. in your house or whatever that is.

certainly as we want better coverage, demand 5g, we are going to keep increasing the , and thend precision amount of data we have to store. we have time for one more question. gentleman in the structure. -- striped shirt. >> i had a question based on may of cell site location. do you see in the future businesses developing for pay to play privacy? you have a second order of people who own cell phones, they have the p.m. private satellite communications versus cell phone towers. what does that imply in terms of making privacy affordable and accessible to the public consumer? question is sort of

reminiscent of the question before -- the first question i was asked. end, communication requires location. web browser,e tour it rots your i.t. through this proxy, through this proxy. ultimately, the data has to get to you. it is just a matter of how far do you want to obfuscate this. conceivable that you start coming up with these proxies, but a lot of that will happen over the internet. like i was answering before, if you don't want to be tracked, go on wi-fi. voice.t's up, google

that is a question for a whole different group of people. but there are already ways to do it. i'm don't know that it will definitely -- if it will necessarily be a value add to route you all over the place, if you can do it over wi-fi on the internet already. laura: we are out of questions, but thank you very much. it was fantastic. the firsts us to panel of sorts of the day. the next three speakers will offer reflections, comments, and analysis on the big picture implications of the carpenter case. i will ask you to hold your questions for the next three speakers until all three have spoken and then after we will have time for q&a for all three. first up is a person who, more than anyone else in this room, you should bank or blame,

depending on your perspective for the blockbuster carpenter case we are here to discuss today. please join me in welcoming nate wexler, who represented timothy carpenter before the supreme court and argued the case on his behalf. [applause] >> thank you so much, laura. very pleased to be here. for decades ago the supreme court decided two cases, united states versus miller and smith versus maryland, that set up what has become the third-party doctrine. cases were about tank records held by banks for a two and half day period of phone numbers, those numbers stored by the phone company. a person has voluntarily turned over those to a company in order

to make a call and have therefore given up their privacy interests. they have waived the reasonable expectations of privacy. that was a really controversial outcome at the time. both those holdings were made over strong dissents in the supreme court. but whatever the wisdom or logic of it was for decades ago before the digital age, those cases have not held up well in the intervening decades as we move into this fully digital reality that we live in now. those decisions have worked a lot of mischief as lower courts have held down by what they interpreted to be a bright line rule. if a third company hold your data or data about you no matter how tentative it is, you have lost your ability to invoke the protections of the fourth amendment if please go to that company to get this stuff about you. meaning the police don't need a search warrant, they can use a subpoena. if there is a statue that require something else, court

order on a higher standard. principle, third-party doctrine has created a lot of for a wholeef, too, panoply of digital records such as medical information to information about communication, our documents, information about what we do online, and so much more. the court's decision in some way aas in decision about cell site location records but i really think it's an earthshaking reevaluation, the first time in decade, of this third-party doctrine and creates a tremendous base moving forward to more adequately protect the kinds of sensitive information we can avoid creating about ourselves today. the court in the carpenter case declined to extend smith and miller. rejecting the government's claim

that this is just a bright line rule, that was the company has the data, that is it. the court was very cognitive of the need to change and update and at that hour of -- understanding of fourth member protections to take into account changing technologies. they talk about the novel circumstances, the unique nature of these records. quantitatively different from the records from the 1970's. they talk about the seismic shift in digital technology leading to the point we are at now where we need to find a better way to protect our information. the court understood how important this case was. chief justice roberts did the unusual thing at the outset, without either party asking for it, extending the length of the argument on both sides by 10 minutes. the questions were deeply whated to understanding

are the changes in technology, how does technology work, what kind of data is being collected, and what are the implications of the governments rule going forward for location data but also for the other kinds of digital age records that we care about. rejecting the extension of this doctrine to this new context, this pervasive record of every where a person goes, the court avoided what i think by adopting the government's position would have led to a real ibis or ration of our practical ability to maintain our privacy and control over our data in the digital age because it's really impossible as a modern human to go about our lives without leaving a trail of digital breadcrumbs about our location but also the internet connected technologies that we use. important not

only because it recognizes the access to this location data as a search but is the kind of search that requires a warrant. that was not a foregone conclusion going into the decision. the government's position was eaten and if this implicates a property interest of the people carrying cell phones come it would still be reasonable to get access to these records without a warrant. the government pointed to the subpoena doctrine, what it when theized as government chooses to use a subpoena or similar kind of compulsory process not based on probable cause, the choice to use this subpoena instead of a warrant dictates what the fourth amendment says, a process, form of receptive to argument. if we use a subpoena, it has to be reasonable, not wildly over burdensome on the recipient, the phone company, to comply with. of course, they comply with tens

of thousands of these requests every year. the court rejected that view and said no. we have never encountered data held by a third party in which a person has a reasonable expectation of privacy. only theew situation, protections of a warrant will suffice. that is important for these location records but also going forward for so much more. there were some strong dissents in the case. justice kennedy, justice alito, and justice thomas dissented. justice gorsuch also dissented, although his was really a up until the last few paragraphs. we can talk about that more. i do agree with justice alito about one thing. he was quite concerned about what he portended would be a as lowerof litigations courts and criminal defendants

tried to test and figure out the boundaries of this new interpretation, new context under the fourth amendment. i agree and i think that is a good ring. let that litigation come. we are overdue to figure out how to adequately protect americans privacy rights in a meaningful way in the digital age and we will see lower courts tarting to grapple immediately with the boundaries of the decision in terms of location data and in terms of many other kinds of sensitive information. maybe i will talk about some of those questions that are yet to be answered. the supreme court reported to be , onlysing the majority one question when it characterized as a near a question, although i don't think it is narrow at all, which is whether people have a reasonable expectation of privacy in their historical cell site location records held by the provider. to request bylves

law enforcement for two different chunks of mr. carpenter's data. his privacy provider -- primary provider was metro pcs. daysovernment received 120 . it just so happened the account terminated just before this month of data. they turn over what they had within that range. that was about 13,000 location points. 101 points per day. also a second request to sprint or a seven-day chunk of data covering the period when the thernment he was in northeastern ohio, which was not served by metro pcs, roaming on the sprint network. that was a request for a weeks worth of data. the court 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.

the court said we need not address whether there is a smaller printer of data that will not need a warrant. here at the very least, seven days of data requested is enough to cross a line into violating expectations of privacy. i have no doubt in future cases government will argue there is a day,rt of period -- six hours that it does not require a warrant. looking to the reasoning of the court's opinion, one or a few individual location points probably falls outside the logic. once we get to any aggregation of hours, it can really start to chart a person's life, then we're into the territory of needing protections of a warrant. the court also said it was not deciding the rules were real-time tracking but everything it said about the danger of unfettered government access locations of where we go would reply to a request by a cell phone company.

maybe there is an exemption for a few individual points. certainly, for any kind of aggregation of that data, the privacy harms are at least as great for real-time data. the court also said it was not deciding about tower dumps. request by a phone company to look at all the phones connected to a particular tower in during a certain time. if there was a bank robbery, all the phones that showed up near this point at this time. that may not walk into the territory of this kind of aggregation of data that reveals a person's private activities but it does point in another direction of necessary protection. it looks a lot like the general warrant that the framers of the fourth amendment were worried about. request for a ton of people's data. virtually everyone of them will be unconnected to the crime so courts need to grapple with what protections should look like

inferring a lot of things about a lot of people without probable cause. then there are other types of location records. we are not just talking about cell phones. courtsecords in the constitute a person's movement, show the whole of a person's movement over time. these could be gps records collected by apps on our phones, information from wearable devices, uploading records to apple or fitbit. automated license plate readers who charts where everyone is going. facial recognition capabilities. look likes starts to fertile ground for new types of fourth amended challenges. but that is not all. the kinds of lines being drawn by the court contemplate there

will be other categories of highly sensitive data that are going to need to be protected in the digital age. that includes things like our browsing histories online or our search query histories. in some sense, that information is voluntarily given to find where we want to go online but tremendously sensitive in the aggregate. lower courts will be looking at those questions soon. information from the apps on our phones. whether it is a record of every article that i read over the past two months, information on apps that chart medical information, communications, political persuasion, and so much more. your heart rate, uploaded from a smart watch. information about the interior of our home, moving into this era of the internet of things devices. a thermometer that knows when a homeowner is at home, what rooms

they are in. a smart meter provided by the power company that does not just per hourrage kilowatt usage but a granular accounting of how much power is being used, which can infer when a person is home and what appliances they are using. all of this data under the governments of you would have been accessible under a warrant are not opened up to a whole set of challenges and i hope protections. i also think there is a new appetite potentially in the courts to look at both collection of the kinds of older ina that were talked about miller and smith, those 1970 cases. there has recently been a lot of debate over the government's capability to collect bulk metadata about telephony. the nsa program altered by congress not long ago, the government argument there was

these are just phone numbers of people are dialing. an expectationve of privacy in a little, you don't have that expectation in a lot either. the courts recognition that the pervasiveness and the nature of the data changes the analysis, provides new space for those challenges. i'm out of time, so i will leave it there. i look over to talking more in the question period. [applause] nate. thank you so much, keep those questions in your head. we will have time for q&a. next it is my honor to welcome professor laura donohue of georgetown law. professor donahue is one of the nations foremost fourth amendment scholars. her own work was cited five times in the defense in this case. she is also an esteemed faculty director. among many things -- her bio is big to summarize.

please welcome professor donahoe. >> thank you very much. thank you for putting this terrific event together today. toan think of no better way spend today than debriefing on carpenter, with nate and the others here today. it's a great pleasure to talk shop. i would like to say i'm extremely happy about this opinion. i am not very happy about it. gorsuch'sstice disdain for miller and smith as ern. as justice thomas' conc i think this is the right result. i think of it as the dames and more of fourth amendment law. that case was fought over an executive order, whether the carter administration could deprive u.s. companies of their property rights interests. it was generally agreed that it was the right decision to reach,

although it had very dubious reasoning and getting to that conclusion. while i think the case reach the right conclusion, that there is a fourth amendment interest in cell site location information, i'm deeply concerned about the way in which this decision was reached. we are left with tons of questions, never mind and added 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 they laid out. you are left with the question, what makes something a distinct category of information? how do you determine which side of the line you are on? how do you understand if you're on the wrong side of the line? how much information is too much or not? how much weight you give each of the factors? which factors count more than the others? in short, this is one big mess. although it reaches the right conclusion, it is the reasoning. let me talk about that. the court in the opinion,

justice roberts -- there are two parts. the search and then a warrant required. looks particularly at miller and smith and says the digital data in question lies at the intersection of location data. on the one hand, third-party data on the other. the reasoning that goes on here, kennedy says the kind of information at issue is different in kind than the kind of information at issue in miller and smith, namely banking records, financial records, or telephone numbers. specifically, he highlights seven factors that go into the determination of how this is different. first, you have near-perfect recalls, unlike a nosy neighbor who looks out their neighbor and sees what you're doing, here you have perfect recall. this isn't so different from these other records.

you have perfect recall of your financial records over time. second he says it is retroactive. you don't have to get a worn at the outset. it is all collected and then you retroactively go back and collect it. this is not different from financial records. these also go back in time and potentially for years. third, he says they are extensive. cell phone companies right now by their own admission decide to keep it for five years, could be more or less. your banking records also go back for many years. the precision is rapidly improving. that is no different than what we have on the other side of the equation. then he says it is deeply revealing. he doesn't go into great detail but says these records are deeply revealing. then he says it is easy, cheap, and efficient to do this, so the role of resources is playing a

limiting role in what the government can do to you, and that limitation is dropping away. and there is not voluntary sharing going on. when we walk a run with a cell phone, we are not specifically revealing to the phone company, i'm going to starbucks, the office, and then this amazing discussion of carpenter. it just happens to be collected along the way. he looks at this and says this is a distinct category of information. theproblem with this -- on one hand, this takes on the traditional understanding of smith and miller, which is zero plus zero is still zero. this is what judge egan in the patriot act was looking at. the privacy right does not just arise. if you have no privacy interest in your telephony data, the fact that we collect metadata for a

decade does not make a privacy right arise. what is different here is kennedy is taking on the view that zero plus zero is 0 -- not kennedy, roberts. a terabyte islus a much deeper privacy interest at stake. that is what has changed in fourth amendment doctrine. the court is recognizing it is not just zero plus zero. it is a lot of very important personal information. these factors being offered are not sufficient grounds alone on which to distinguish between financial records on the one hand and telephony metadata, phone numbers you dial, and purely location information. it is not satisfying in that regard. kennedy goes on to offer three critiques. cell records are no different than any other records. he is also concerned about

things in miller and smith. he says we are on hinging fourth amendment document. of course, i think the horse is already left the barn. there was an effort to wrench katz from constitutional grounding. fourth amendment doctrine has remained very much grounded in the terrestrial world in many ways. comes along and says the issue is whose property is being searched? this is not carpenter's property, it is the cell phone companies. therefore a subpoena should be sufficient. subpoena is the right device to use to get somebody else's information. katzys on these grounds, itself was really upending the history and meaning of the fourth amendment. here, justice thomas is unsecure ground. the right of the people to be , protects against

unreasonable searches and seizures. that means against the reason of the common law. the british crown could not enter anybody's home without a warrant. a general warrant was insufficient in order to use as a basis to go into somebody's home. a warral warrant being that does not specify the individual before hand, no specific crime. it sickly gives the government to go into somebody's home. katz comes along and says we are going to understand reasonable buy more or less this relativistic defense. if there is more of an expectation of privacy ,bjectivity and subjectively then we are going to give you fourth amendment protections. this has no resemblance to how the founding generation would have thought about the fourth amendment.

i'm in complete accord with justice thomas and justice gorsuch. justice thomas further points out -- and this is where i disagree -- he says this reading renders person's houses, papers, affects out of existence. this is not persons houses, papers, affects. if you see a privacy interest in csli, you are reading those textual words in the constitution as if they don't exist. i don't think that's right. all of us on the one hand have a personal doppelganger that follows us around that looks like us, talks like us, goes to the same places we go, that is our person. you can understand persons in that sense. you can also understand affects in this sense, going back to the original constitution. fx included business records. business records containing to your business were your fx.

justice thomas misses an important opportunity to ground that right in the original understanding of the fourth amendment. that you are now claiming ownership over the cell phone companies records, that you have -- you no longer have any interest, any right to those records. gorsuch'sstice critique of this is actually -- the concern here is when you create a record, you don't lose your right to that record. justice gorsuch gives a very suggestul response to that you can own something and share that something with somebody else in a way that you don't lose your property rights in that information. that is a much firmer basis on which to move forward. justice alito's critique, he says the court of the distinction between an actual search and order merely requiring a party to look

through its own records and produce information. this is the traditional distinction between a warrant and subpoena. he says this anniversary is the subpoena power. the court replies that justice would eviscerate the fourth amendment, so there is a back-and-forth between the chief justices hear. the chief justice also says that the senate should also record highs csli is a different species of business record, something that implicates fourth amendment concerns about arbitrary power much more pacts orthan corporate payroll ledgers. the point of the fourth amendment was to protect against overbearing government power and intrusion into individual lives. opinionsone of these do we see a careful discussion , and why youorks translated into protection of

one personal houses, papers, affects. that is a promising way to move forward with the doctrine to address some of the problems we see in the majority of opinion. for me the most interesting opinion is just as gorsuch -- justice gorsuch. he says katz came out of nowhere. a lawyer decided to argue the reasonableness test from another law. the first time it appears is in oral arguments in katz. then the court just adopts this as a rule moving forward. they are right. this came out of nowhere and their is almost no result was to the original understanding of the fourth amendment. he then looks to smith and miller, apply to telephone and banking records. that is sense in those records are prescient in pointing out the problem that you have no interest in who you call and who

calls you. of course you have a privacy interest in that. the frequency reveals what type of relationship those are. the people were real with whom you have those relationships. of course the information is private. in many ways, miller and smith were the first steps along the way. gorsuch says there are three possible courses of action you can take. the first amounts to suck it up. he doesn't put it like that -- i do. just accept your loss of privacy. he looks at the third-party data explanations and why this was acceptable, that there were three explanations. first, 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. that is what is behind third-party data, this basic idea. knowing there is a risk that they might use this in other ways, doesn't shift the

responsibility for buried at risk. if i walk out of this building today, i know i could get hit by a car. does that mean if a car hits me i bear the risk of that car hitting me? and that car is unsolved of any responsibility? of course the answer is no. there is a distinction between knowing that somebody can break face with you and then bearing the risk that somebody will. third-party party doctrine could be because of consent, that we consented. as long as we know we are disclosing information to a third party, that choice is voluntary and the consent is valid. gorsuch rejects this. consenting to give third-party access to private party papers remains your property, is not the same thing as consenting to search for the government to search the same papers. none of the opinions or

defense go into detail on informing doctrine. i'm very surprised by this. informing doctrine is actually what led to the third-party doctrine in the first place. .he stool is not complete they have only looked at two of the lax, locational information and third-party data. they have not looked at enforcement doctrine and how that has evolved. i will say one more word about that before i conclude. the third critique that gorsuch raises is clarity. this idea that we have third-party doctrine because it is clear who has ownership over those records and whether you have lost privacy or not as a keeps us from falling into this factorial trap that the opinion lays out in this precisely factorial trap their justice gorsuch says it would be just as clear to say you have a fourth amendment interest in all third-party data. clarity alone is not enough to get us past the post. if we are not going to apply

third-party doctrine, then we have two other options. we can set miller and smith aside and reapply katz. he says the problem with katz in the first place -- and i think he is right -- it is unclear whether there is an empirical understanding. many scholars have argued. judges are not the right people to make this call. it risks undermining the court. as justice gorsuch points out, it also leads to inconsistent and incredible results. a helicopter flying 400 feet above your home, you have no privacy interest in your backyard, even though you have six feet of fence, another 12 feet, inside which is your marijuana garden, in this case. justice gorsuch says that makes no sense. of course you have a privacy interest. sorry, this was a cessna. the helicopter was above a green

house where there was a panel missing. then he goes to greenwood, where you put the garbage out on the curb. don'tludicrous that you have a privacy interest, if your neighbor started going through your garbage, you would say stop going through my garbage, that is private information. he says these cases are really inconsistent. katz is the problem here. he is left with the conclusion that you have to look elsewhere for answers. in some ways, this is a roadmap of how to get things moving forward. he chastises counsel in the case by saying we raised it in jones come he goes through the litany of cases. carpenter should have raised this in the first instance. here, the fact that a third party has access to possession

of your papers and effects does not necessarily a limit your interest in them. i think that makes sense, i think that's right. second complete ownership and exclusive control of property is not always an necessary condition for fourth amendment rights. i think that is right. third he says positive law may help to provide guidance. he looks at state law rights were they create rights in tangible and intangible things. a digital asset, which is created. california passed a new law looking at state laws that have created these rights and intangible properties. there coulds that be a constitutional floor that cannot be overridden by legislation. while you may look to legislation or common law as creating certain types of digital rights, at some level to have to be a floor beyond which congress cannot go in waving the rights of individuals.

creating a subpoena like power to go after cell site records like section 215 of the patriot act. there is a constitutional floor below which you cannot go. at the same time, that constitutional floor can actually intrude upon the subpoena power. that is his fifth proposition. to conclude, i would say this opinion, there are a number of different strains that are not whichsed in this opinion we open a lot of questions about how to reconcile these different streams in the doctrine. the majority mrs., kennedy also misses, this concept behind locational data which is that when you go out in public what you say and do can be seen and heard by others. what would be forced the police to close their eyes or cover their ears? there is something weird about that. you assume the risk. part of that assumption is if i do a jig on the street, if somebody sees me do it, why should i or so my brother a

police sergeant to close his eyes and not watch what i'm doing? they don't grapple with that. that goes back to hester and alled states in 2007, versus u.s. in 1984. this underlying public space doctrine, i think, matters. the second is it does not address this informant doctrine. this comes from a long line of doctrine. prior to katz, leaves doctrine untouched. following that we have two more cases that enforce the informant doctrine. finally, the evidence rule. they don't adequately investigate the relationship 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. to conclude, i have to say i think this is the right result

to reach in this case because of the privacy interests entailed in this. my concern is the reasoning the court uses actually creates so many more issues than it resolves and i'm concerned about what this will look like moving forward. [applause] thank you so much, professor donahue. next we have professor stephanie powell of west point army cyber institute. professor powell is a location privacy expert and she also served as majority counsel to the house judiciary committee under then chairman john conyers , in which capacity she served as lead counsel on electronic indication privacy act reform and future act reauthorization. she was also a prosecutor for over 14 years. please join me in welcoming her. [applause]

stephanie: thank you for including me in this really fantastic event. because i'm a professor at west point, i'm 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. , location,t location, location. the three things that matter in real estate are no longer just about property value today, where you were, who was there with you, and when you left, especially when all are aggregated over time, can combine to reveal an intimate portrait of life and self. all of these things are discernible through the aggregation and analysis of location data.

the court recognized historical location data allows the government to achieve "near-perfect surveillance traveling back in time to access a category of information otherwise unknowable. themately as we have heard court held that we have a reasonable expectation of our busy in the whole of our movement. at least with respect to seven days or more of those movements. this decision was a 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 three quarts are not the only branch of government that have been grappling with law enforcement -- the inappropriate law enforcement access standards for location data. the house judiciary committee began to look at the subject

back in 2010, approximately one year before the police arrested four men suspected of robbing a series of radioshacks, and ironically, t-mobile stores, in the carpenter case. as laura mentioned, in 2010, i was lead counsel on electronic communications privacy act for the then democratic majority of the house judiciary committee. i am also a former federal prosecutor. while some states like california have passed legislation to govern law enforcement access to location data, historical and perspective, we have been talking mostly about historical data at issue in carpenter, but there is also an ability for law enforcement to ping your phone or use gps to track to prospectively.

there is also technology that some of you may be familiar with which are essentially fix else hours that can reach out to your phone and force it to reveal its identification number and also its location. it is probably a useful question to ask, why has our congress failed to do so? based on my experience back in 2010, i like to offer some ideas as to why legislating in this area has been difficult, with the caveat that i'm not suggesting it will be any easier now.re during -- doable in all candor, it seems to be quite difficult to get anything done. rather, i want to describe and interpret some of what i saw in 2010 with the hopes of providing some more useful insight for when the opportunity may be

right for legislation again. 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 a search occurred when the government attached a gps tracking device to a car with the intent to gather information. course, the riley case has occurred, which allow the court to say when you sees a phone, upon arrest, you have to have a occurred, which allow the court to warrant. it cannot fall under the search incident to arrest exception. anover, in 2010, we had extremely inconsistent legal landscape, where even judges in the same district, magistrate, district court judges, were required law enforcement to meet different standards with respect

to compelling location data. part of the problem was that the electronic communications indication gave no about the appropriate standard for law enforcement access to prospective or real-time csli. government at the time argued if it combined two particular authorities, neither of which ,equire probable cause showing that was appropriate for purposes of collecting perspective csli. some magistrate judges agreed with the government. some did not. some that agreed with government were reported to have actually ofned up and examined maps 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. , it isse, as we know possible -- in fact it happens -- carers can put new cell sites, whether they be new towers on buildings, or whether they be pico cells, femtocells. the relative precision of location data can change as the carriers expand the network. those thatcles, disagreed with the governments the area about election -- collection of respective data and required a warrant were referred to as part of a magistrates revolt. slowly but surely you had a few magistrate hedges that required a warrant or even historical csli.

all the while the government argued that it authorized the collection of historical csli of order that the government used in the carpenter case. precise and very that a simple application of the third-party doctrine controlled. experts come a specifically professor matt blade explained to congress in 2010 that, for example, with the advent of pico cells, micro cells, femtocell's, csli would be rapidly approaching the precision of gps data. in fact, there could be instances where it could even surpass its precision. 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 are 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 join together to propose a warrant standard for any and all location data, historical or perspective, and any amount, even an hour or a day, it was more or less a lawn starter -- nonstarter for law enforcement. putting on my former prosecutor hat, i might ask, what if law enforcement wants an hour or day's worth of location data to rule somebody out of an investigation? is that evidence of a crime? e, when weially quot say probable cause, we have to ask question, probable cause of

what? normally under federal rule of criminal procedure 41 we are 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 cannot 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 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. i is speaking again from 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. jones, nore was no riley, but we know now that the government lost big. 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. talk aboutrd nate many areas that will probably be litigated post carpenter. is,that i would like to add using machine learning algorithms to analyze big data. the government, after carpenter, can no longer say it is just metadata. that traditional content not content distinction in the law where the government has

generally argued that while content may have more to level protection, metadata does not. they can no longer say just as a the decision, as 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 with jim baker, former general counsel of the fbi. as i heard him talking, i basically heard him say, the writing was on the wall. i might suggest that you could even hear markings of that writing in the jones oral arguments. scaliample, when justice explained, don't we have any legislatures out there that can top this stuff?

that statement in the context of the argument should have served notice upon doj about what a future case and interpretations of fourth amendment doctrine , if doj had gone to court that morning in jones expecting a pro-law enforcement majority that would endorse the knowledge of not, justice scalia's message echoed the force of hamlets words of rejection to ofelia, another expectant but disappointed suitor. thee to a legislature. -- there still enough are still great many areas to legislate in. perhaps when the time is right both sides can work constructively. isould suggest that privacy

not all about law enforcement access standards. minimization, notice, transparency reports, those are all parts of privacy protection. if the sides can constructively come together, even while, quite appropriately, the post carpenter issues will be litigated in court. thank you. [applause] great. thank you so much. nate would like to welcome and professor donahue to join is back on stage along with the founding executive director of the center on private technology and prior to founding the center he served as chief counsel to the u.s. senate judiciary subcommittee on privacy technology and the law. is an expert on all things digital technology

and will be moderating questions for our first group of speakers. welcome. >> can you hear me? >> just a note on logistics, we will break for lunch at 12:30 rather than 12:15. i feel like a kid in an intellectual candy store and i know you do, too. i just want three questions for our amazing panelists and then i will open it up to the audience and we will have a broader discussion. to give you,d love nate, the chance to respond to laura, your rich critique of this opinion and you're being persuaded bunch more by justice gorsuch's arguments. nate, you did say there will be a lot of litigation, but is it that is -- that it is a mess or should courts look to justice

gorsuch? what do you agree with and what laura said and what you disagree with? >> yes and yes and yes. there will be a lot of litigation. there has been a dearth of litigation in the decade since miller. appealfive u.s. court of ruling on this generating 20 majority concurring and dissenting opinions. i'm trying to grapple with how you make sense of these now outmoded precedents applied to new forms of digital data. the courts were doing their best. they were going to do their best going forward. i think there's a lot to seek guidance from an chief justices roberts opinions, but i do not disagree that it is going to require a lot of interpretation and we are at sea as courts work this out. i think there is a lot of value in justice gorsuch's dissent.

he was concurrent except for the last couple paragraphs where he -- mr. carpenter's counsel for forfeiting the arguments. i think what was going on his justice gorsuch was comfortable enough sketching out the direction he wanted to go but did not feel ready to put a period at the end of the sentence and said i need not definitively decide and that was as counsel for mr. carpenter because we have five votes. but there is a lot of guidance going forward and i think it is guidance that will help litigants flesh out more clear arguments looking at federal statutory and state statutory protections for different kinds of data. looking at terms of service and

contractual arrangements, looking at what kinds of rights people retain. i think you'll also provide companies to what kind of legislature protections are appropriate. statute thatderal requires customer consent before a telecom can sell or disclose their information which we thought provide enough of a justicer the theory and gorsuch discussed it a little and did not include other way, but those kinds of protections and other areas are going to be very important. last note on legislatures, i want to turn to you, laura and stephanie, i love thyselfmpt, doj, get to a legislature. let's do that.

given the logic you find, laura, injustice gorsuch -- in view ofgorsuch 's how the showdown, what should be the rule? if someone calls you up, what should the ru -- what should the rule be? >> for legislation, not for the supreme court? combine this with my journal research. -- with my drone research. have drone states legislation that deals with locations that has privacy built into them. the next case

will be california because they have the most progressive legislation in terms of protecting digital rights and individual digital rights in their own information. i would guess that is going to be where they're wanting to bring a case next in order to move forward, both on the side of kennedy but also on gorsuch's side. they have created property rights that deal with location and information about where you are and what you are doing, even when you are spaces visible to the public. the drone on california, there's something called constructive trust and it comes out of the paparazzi laws. i would like to see legislation that takes account of constructive trust past. to see legislation that takes account of remaining property interest, especially in records you generate just by living. that is intensely personal information you have and you have a right to that information regardless of whether it is

generated by google or amazon or by verizon. that is a reflection of yourself and your being in this world and you have a property right interest in that. i would like to see legislation step up to create the broader context within which the court can then move forward, both the dissent, because i think of this i thinke plus one, and we can move forward with that understanding in a way that more members of the court and possibly five plus two could join eventually. >> i will give you an answer that looks at historical data and what i would do about that. is, at least it was then, maybe things have changed, in large part, many of the concerns that law enforcement has were probably less about getting a warrant for long

periods of data like the hundred days and theke 127 early stages of an investigation where they might not be able to meet the probable cause standard. what i would like, and i wrote a law review article about this shortly after i left the house judiciary committee, and what we compromise,hat as a we wanted to look at what a more standard.3 >> can you explain to folks what that is? 2703d is the standard used in

carpenter and the communications part of the electronics communications privacy act. law-enforcement must do is show to a court that there are specific facts that the information it -- the information sought is relevant to an ongoing investigation. what i found problematic, especially with respect to location data with that standard is that there is not any kind of particularly requirement. if you take that standard and added an element that required -- at this point we are looking -- andn days of data required the court to say is the amount of data being requested reasonable in light of the investigation? robberiese two bank

and you are trying to see if a particularly -- if a particular individual is present one hour before -- three hours worth, with the middle hour covering robbery, ifthe bank the court is making that kind of particularly finding i think that would go a long way to balancing the privacy and equities with law enforcement. at the same time, i would want -- minimization standards. obviously law-enforcement has to hold on to a certain amount of what they collect for discovery purposes because defendants they want to know who else was in the area. i would 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. the last question on my part, and then we will open up to the audience, i want to ask you about this one part of the opinion that i keep coming back to that i think his extraordinary. justice roberts -- the adjusting thing here is everyone was not before the court. 127 daysdid not have of location data pulled. nonetheless, chief justice roberts says, on page 13 of the opinion, because location information is continuously logged for all of the 400 million devices in the united just those belonging to persons under investigation, this newfound tracking capacity runs against everyone. pages later he says the government's position fails to

contend with seismic shifts in digital technology that make possible the tracking of carpenters location but everyone else's for years and years. this is remarkable because, again, those 330 million people have not had their location pulled, it is there and matters. that scenario exists across technology. i could be misremembering, but my recollection of how we resolved -- was that the phone companies would store everyone's data. isn't that another instance where everyone is in the database? face recognition technology, something professor donahue has written about, where you have everyone's face on video, once you do search, you can match and get the drivers license data, as may have happened in the case of indianapolis of the indianapolis shooter.

those drivers license databases have almost everyone. what does that mean? is it about the arbitrary power the chief justice roberts is noting about, is it about transmit tracking, what does it mean and why does it matter? >> this gets to something i wanted to respond to, it is the horse has left the barn argument. you importt if national security measures into ordinary criminal law that you concede a much broader -- your rights are eroding because what that does is it makes it more palatable to collect everything up front because the assumption is we will just dump it. there are exceptions to when you dump it and those exceptions become the rule. i think how we ask that question

matters and the question up front needs to be doing we want the government to have the information or not? that feeds back into the question you're asking. when i read that, i also made a note and went back to double check about that. i think this gets at the warrant requirement. you cannot get the information until you have probable cause that someone has committed or is about to commit a crime. until that point, you have the right not to be monitored. this goes to the underlying animation behind the fourth amendment. importants that it is in a free society to give individuals the right to be who they want to be and develop outside of government. the idea that if everything we see and do is being watched and recorded, people change what they say and what they do. the recording of this information matters in terms of social control. it matters in terms of self-actualization. beingatters in terms of

able to dispute government policies, political disagreement and disobedience. all of this, if that is recorded and you can just access it at any time, for something less than probable cause especially, but even with probable cause, it changes the relationship between citizens and the state and to me that gets at the heart of the fourth amendment and what the founders are trying to do, which is create a society in which people are free to it you vault, develop, question, challenge, and not have government so strong it knew what you were saying, doing, and thinking, and with whom 24 hours day. that is the point where reaching. that concern is partly why 70 people feel this is the right decision. it is how we got there that i think there is disagreement on. >> that was very well said. there are echoes of the same concern in the oral arguments of the jones case.

chief justice roberts asked the counsel for the government, can you clarify for me is the implication of your theory this is not a search under the fourth amendment? the inflammation -- the implication of your theory that you could attract -- attached gps trackers to all nine members of the supreme court -- and that is the implication. i think that is a common sense recognition that technology -- that changes in technology matter and unless the law keeps up, we will just be swamped by the categorical levels of and inncy and ease expensiveness of these kinds of tracking technologies and data capabilities. i think it is tremendously and one of these common sense recognitions that

the state of technology changes the game. >> the interesting thing for me is that this is a data argument. this is who is in the database and who can be searched. i have never seen it stated so squarely. there's a little bit in a dna opinion with justice scalia and there is something about this being so clear. stephanie? >> let me respond to laura's point. there are some technologies that overclocked. when you do a tower., -- when ump, you areer d getting a bunch of information that is not relevant to your investigation. it may be looking for a particular phone, but in the course of calling out to that phone, you may collect other

things. becausemply suggesting, congress certainly can create privacy protections, that the fourth amendment may not require that minimization is a good way to make sure the government, and this case law enforcement, is not storing the information that is incidentally collected, if you will. i would have to concur with nate's response about what carpenter, pulling from jones, is about. >> wonderful. .e have a question from bob who would like to ask after bob? bob, please go ahead. >> i want to remind people that after miller was decided, the congress overturned it in part

by passing the right to financial privacy act. the act said that if the federal government agency wanted to get your records, it had to give you notice and you had 10 days to go into court and show the records were not relevant to a legitimate law enforcement investigation. an incredibly low standard. congress exempted a bunch of agencies from this minimal requirement and over the years exempted a bunch of other activities. there is nothing left of the law. this was a democratically controlled activist congress in 1978. does anyone have any hope that congress can actually, effectively, do any of this in the future? i remind you that reform has been sitting around for a long time and they have not been able to pass that. i think the prospect of getting anything out of the congress anytime in the next five or 10 years is incredibly small. i'm not going to progress to

take about what congress may or may not do but what i will say is there something about the notice requirement you talk about in the right to financial privacy act which is critically related to the importance of a work requirement here. the government position is it does not have a constitutional obligation to provide notice for the subject of the investigation , otherwise the person whose phone records they are seeking. the send the requests to phone company, the phone company knows about it, they respond but maybe they challenge it in court. one reason it is so crucial that the court concluded a war to be a probable cause and presented to an independent magistrate judge is that if we continue to live in a world where notice is not being provided by the government to the subject of the investigation, at least now we have this high-level protection sitting in the middle. the judge has signed off, there is probable cause, limiting the

scope of the search to that which there is a particular need. beingf the person investigated does not have a right to challenge that search ahead of time because they do not know about it, we are in a world with greater protections. that is a piece of the puzzle that does not speak to our congress could or should do in addition. >> i want to add, one of the concerns i have persistently had is that when new technology becomes available, law enforcement uses it before congress has granted them any authority to use it. said you could use catchers to catch all of the telephones inside homes and find out who is talking in the neighborhood and emulate a cell phone tower, and yet they are using it. originally that was considered law-enforcement sensitive, no one was allowed to know how they work. remote access or hacking is another example.

inone affirmatively said congress, law enforcement, you can access computers or you can use child pornography to try to catch individuals engaged in child born activities, and yet -- in child pornography activities, and yet they are using the technology. forrked for hewlett-packard eight years and our lifecycle was very short for our product. i would like to see congress step up and say when new technologies come out -- this is the position number of states have taken with regard to drones -- unless they have affirmatively granted permission to use drones, they do not use them. there needs to be a toggle switch to force congress or the legislature to act before new technologies can be used. >> for folks curious about what that legislation looks like, you anddo a search for ccops

there are local ordinances that require that kind of approval before these technologies are adopted by police. now we will turn to a question. for the purposes of future technology, talking about 5g to employment, obviously it has enormous implications for the specificity of information data. we are going to have networks that will deploy tens of in a cityof microcell like new york. new possibleide platforms for attractive that will provide subsidization opportunities not

unlike the internet to suppress the cost of access and benefit some communities very much. on the other hand, it is a fairly urban centric deployment potential there is a for disparate impact on the use of such networks for surveillance and social control. i put it to all of you, what opportunity does carpenter offer isto analyze that issue and it more properly left to the courts or to the legislature because of its deep complexity? >> do you mean analyze the disparate impact as a result of that? >> that is my ultimate problem with this, but also -- at the same time, while allowing these networks to unleash the

commercial opportunities and the benefits i described to the precise communities that could be impacted by the surveillance element. part ofnk one important the majority's opinion in carpenter was that it did not prescribe there should be some analysis and each individual case to look at helping the cell phone towers were and how many cells there were, how precise it happen to be. we have to take account not only of the data in this case, from 2010 and 2011, but also the technology today and the trend of technology going forward. the rule is it is a search and a warrant is required to obtain this kind of cell phone location information that allows pervasive tracking. that is an important motive analysis and a good practical

protection that attempts to future proof that ruling, at least in the context of location data. >> just add to that, justice roberts says he is anticipating these networks become more , butitous and more precise he does not reach for the impact aspect of this, which strikes me as much more of a congressional question, even state legislative in terms of the policy states want to adopt in terms of these networks that are being created. >> one thing i'm wary about injustice gorsuch's opinion -- one thing i'm worried about in --tice gorsuch's opinion actual enactments by the legislator creating contractual protections and i think there is something that is attractive there but it also risks a differential privacy

availability. ablepeople are going to be to contract with a company that is offering the more extensive privacy protective service. other peoples that have a monthly plan may be subject to data retention. i do not think that is where we want to be great i think we want a consistent level of protection so that some communities are not left out in the cold. >> stephanie, any closing thoughts? worldmagine in a perfect that the best way to get at these issues is both through the courts and with congress's help. at times, the fourth amendment can be a blunt instrument. , when it is willing, and the stakeholders are willing , can get more nuances. , io not have a crystal ball do not know how it will play

out, but i think now that we have carpenter, it is a call for the nuance exercise that it is able to do for legislation. the 67orth saying wiretap act, is a regular dance that happens. it is imperfect but it is there. it is now 12:30, so it is time to wrap this panel. please join me in giving them a warm round of applause. [applause] >> thank you, everybody. now we will break until 1:00 and then we will reconvene for our afternoon session on the practical implications of the carpenter decision. help yourself to food in the back of the room and the bathrooms are out by the elevators.

[captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> today a break in this forum on cell phone location data privacy. expected back around 1:00 where they will give a panel on the public implications of the carpenter decision by the supreme court.

we will have the entire form available online later today at c-span.org. live coverage today on fighting crime and violence in el salvador, hosted by the inter-american dialogue and counterpart international starting at 3:30 p.m. eastern time. newsmakers this week is pleased to have congressman adam smith, democrat of washington. tacoma is home to the army's fort lewis and he is the ranking democrat on the armed services committee. we are talking to him on a thursday morning when the houses in the middle of a big decision about the pentagon. thanks for being with us this week, congressman. let me introduce the reporters that will be asking questions. andcovers capitol hill conor o'brien is the senior defense reporter for politico.