exploit free speech, immigration uclaeducation -- of exploring free speech, immigration and education. >> hello, everybody. welcome back. thank you again for joining us. we are discussing the implications of the recent blockbuster supreme court decision, carpenter v. united states. had ar this morning, we excellent discussion of the big picture implications of the decision and now we would like to spend the afternoon drilling down a little bit to talk about the practical implications of the decision. how the issues at stake affect cell phone users and members of police communities, as well as prosecutors and defense attorneys and their work. as we did in the first half of

the day, we will ask you to hold questions until the speakers have all deliver the remarks, after which we will have time for q 7 a. -- & a. we have a human rights attorney and justice activist. she is the director of the fourth amendment center at the national association of criminal defense lawyers, the cosponsor of this event, along with the privacy and technology at georgetown law. and she'll introduce the remaining speakers, as well as moderate the questions for them. so please welcome her. [applause] thank you. thank you to georgetown law, my, modern. -- my oma modern, forell as the center privacy, we are very happy to participate in this. ar the second panel, it was

fascinating conversation this morning, but then comes the question of the very practical impacts of what happens now. we could talk about it, look at the history, look at the arguments that could be made, but what happens if you are a prosecutor in you are trying to disrupt the network. what happens right now when you think about how to do this in terms of what is being used, you know, if we are talking about breaking and entering, is that different from sexual assault in what the government should or not should be able to do, or should it be able to do. what happens when the other person who is charged of defending people's liberty. they are trying to protect them from government overreach. how does this change our practice and what does it mean for those in the most marginalized communities moving forward. so what we're hoping the panel will be able to do is give us a look at where do we go from here in the very everyday sense, whether you are law enforcement, defense attorney, technologist, a hacker, community member, how does this impact your work and

life going forward. so we are going to start with our first speaker, todd hessel, from my state of maryland. the is currently, um, assistant attorney general, it is important not to get the titles wrong. in the attorney general's office. he argues appeals to appellate courts, provide legal guidance, he has also served as a supreme court fellow. at which time he received intense exposure in the supreme court of the united states. so please welcome todd hessel to think about this perspective. [applause] todd: good afternoon. i'm an assistant attorney general in the kamal appeals division, maryland's attorney

general's office. and i wanted to thank laura and a georgetown for inviting me. i will start with the disclaimer that any opinions i offer are my own, and not the official policy of the state of maryland or the attorney general's office. with that out of the way, from a law-enforcement perspective, i would agree with what nate and laura said earlier in that the decision one creates a lot of uncertainty over what was formally settled, that being the third-party doctrine, and it will lead to a lot more litigation. and that is somewhat of an issue for law enforcement going forward with respect to third-party records, because what was previously understood as being a categorical rule that if you shared information with a third party that law enforcement could acquire that information

without a warrant, now that is no longer the case. but it is not entirely clear beyond the location information at issue in this particular opinion, how far that goes. the opinion appears to acquire -- require some sort of qualitative assessment of the data, but there is not a lot of clear guidance going forward as far as what other types of records to which this decision might apply. i thought it was interesting, actually, the kennedy dissent seems to tease out some factors in the more clearly than the majority opinion itself. justice kennedy notes some of the factors the majority opinion considers is imminently, comprehensiveness, expense, retrospectively and voluntariness. that is from the dissenting

opinion, so certainly it is not controlling, so going forward prosecutors are going to have to make an assessment, if you are looking for the third-party records, is this the type of information to which the decision might apply? and you might say, well, just go ahead and get a warrant and protect yourselves. i would agree with that, that is the thing to do going for, but in some cases that may not be an option. what if you do not have probable cause yet and you are looking to acquire this information to make your case and getting a warrant is not an option, so now, are you putting yourself at risk of getting evidence suppressed if you acquire it without a warrant . and even beyond, i think there is, you know, we are going to

test this decision with new and different types of evidence, as morey as you know, technology allows us to collect more data, but i think even the types of records that are under the third-party doctrine, that they previously understood not to require a warrant like banking records, the decision is still gooder law, but consider if you are someone like me that, you know, you make all of your purchases with a debit or credit card and consider how invasive those banking records might be. i think, notwithstanding that the opinion says it is narrow in smith and miller still applies, i think creative and talented defense attorneys are going to challenge those presidents as

applying the modern records going forward. locationwithin information itself, you have to ask yourself, are you dealing with less than seven days of data, do you need a warrant then? certainly i can say from my perspective, handling state and criminal prosecutions, the typical case that i have seen does not involve more than seven days of data. in fact, it might only involve a couple of hours of data. you might just want to know, you know, where was this the dealer suspect around the time of whatever the criminal event was, and maybe a few hours before or after. that might be all you really need to make your case. so -- and it is not clear, they opinion says we are only dealing with the seven days. and i think there are arguments on both sides. the opinion refers to the

comprehensiveness of the record, so are a few hours copper heads of record of physical movement. i think you could argue it does not apply in that type of situation. so that is sort of the big picture affect of the decision on criminal prosecutions going forward. i want to talk a little bit about what the decision means right now for cases involving tsli evidence acquired without warrant. there are a couple different ways of preserving that evidence. maybe to your dismay or satisfaction, depending on what perspective you come from. so, the first thing you can do is, if you can establish probable cause with evidence that is independent of that unlawfully, now unlawfully acquired tsli evidence, you can

reacquire the same evidence with a warrant. and that will fall within what is called the independent source doctrine, so you have acquired that same evidence by lawful means, independent of the previously unlawfully required tsli evidence. if you cannot acquire a warrant based on probable cause to get the same information, another option is to argue the good , there are aon couple different permutations of this, it should be the exclusionary role. -- rule. a couple exceptions that would apply. in maryland, we have a state version of the comedic haitians act, -- communications act, so you could argue that the police

obtained this information in good faith reliance on a subsequently invalid statute. at the time the police acquire the information, they believed there was a statute that allowed them to acquire this information through lawful means. they relied on that statute in good faith, and so that is one method of preserving this evidence. the other, the different version the policeat acquired the information in good faith reliance on finding a pellet -- a pellet hesitance -- so in maryland like smith and miller, in the state cases, applying that decision. we've actually, our office has had some success making good-faith arguments to that effect, following both the jones

and riley decisions. so those are other options for not -- for preserving the evidence and not having it suppressed. short of that, as we talked about, if you have a case less thandata with seven days worth of data, you can argue that potentially the carpenter decision does not apply to that data. and so those are your options going forward. of course, on appeal, so i anticipate that as we did with both the jones and o'reilly decision, we are going to get -- and riley decision, we're going to get cases where this is preserved. at that point you do not have the option, those pending on appeal, you cannot go back and acquire the information lawfully at that point. so the only real options available to you there are going to be arguing a version of, one

of the versions of the good-faith exception to the warrant requirement, or arguing that this is the information to which of the carpenter decision does not apply, that would be cases involving less than seven days of data. which i imagine it is going to be most cases, most state prosecutions in maryland. so -- i do not have anything further. [applause] jumana: thank you. todd brought a wealth of information, and our next speaker will bring that some kind of wealth of experience in a career of being a defense lawyer. he was part of the litigation team that investigated and settle the freddie gray civil matter a couple of years back. the police killing in baltimore. he was also counsel to sterling

ndc in dc. he has been a public defender for almost a decade. and he is also faculty at harvard law school. for the trial advocacy workshop. and also an adjunct professor at the university of maryland, school of law. please help me welcome jason to the podium. [applause] full disclosure, as a defense attorney i am naturally extremely skeptical. intellectuallyd that the carpenter decision should reflect the shift in how prosecutors gather data, prearrest. it should. the question is, will it? from experience, i do not think the government will be able to move quickly enough to just make a drastic shift overnight, facts we see unless the

fit within the narrow scope of carpenter, prosecutors will continue to rely on orders, they will continue to seek those orders because they are still available. and because they are still available, they can still site the third-party doctrine if they are challenged, and that is what i suspect will happen, unless we are talking about those cell site location data. we are not talking about the narrow data that exceeds seven days, we will probably be in the same boat we were before carpenter. the good thing about carpenter is it gives defense attorneys a new tool to argue. before carpenter, we all thought that the third-party doctrine was just a bright line rule. if you gave your data to a third party, you forfeited your privacy interests. you were not going to be able to assert a fourth amendment claim there. now, every defense attorney should realize that anytime the

government sites the third-party doctrine, we should respond it is not a bright line rule any longer, and we can point to the language of carpenter for that proposition. the opposition being the cell site location data, the fact that you give it to a third-party by itself, that is in the court's opinion, that does not exclude it, it does not take it out of the realm of a fourth amendment analysis. that is huge. we never had that before. what will happen now? what do i expect will happen? i suspect we will see the same in of them -- same run-of-the-mill examinations where they are looking for orders for things like browsing data. that happens in all kinds of cases, whether it is a blue-collar case, white-collar case, child pornography case, it happens all across the board. importantly, excuse me, browsing data is arguably more intrusive was ate csdl data that issue in carpenter.

in carpenter, we are only looking at location. when you look at browsing data, you can figure out what somebody has been searching, where they have been searching from, whether they are looking at sensitive illnesses, sensitive medications, if they are on a dating website -- these things are even more intrusive than issues in carpenter when we are just talking about where somebody goes on a daily basis. when it's the -- when you see things like browsing data, we should be chomping at the bit and challenge under carper -- challenging it under carpenter. the same sort of challenge which amounts when we ce males. if you have ever handled it white-collar case, emails are the being of your existence. clients will say all kinds of birds that ridiculous things over emails and the government gets a hold of it, and they say it is a joke, or was allegedly a joke, they will come up. emails are always coming up and the government -- them under a

2703 b order. we should make the same and that argument that emails are arguably more intrusive than the data at issue in carpenter. the emails not only show location. ip address, right? you can look at the emails, extract the ip address, and you can go even further. you can then get the recipient ip address, which can give you the recipient's approximate location. so we are getting even more data, even more sensitive data, we are looking at emails. oranytime you have emails, any time that we have browsing data, we should be chomping at the bit and making challenges under carpenter. and what is the government going to do? we know they are not just going to fold up shop. they will not give up. the good-faith exception is actually going to show up, and that will be something that we

really have to grapple with. so when you look at the davis case, davis v. united states, davis relied on appellate presidents, but when there was that, it was directly on point. i think the davis case was not looking at, for example, statutory, it was appellate. so we will look in your particulars or section as to whether there is a pellet for whatever the government is seeking. that will be a sensitive inquiry into any case that you have. as much as i appreciate the carpenter decision come i have to say as a defense attorney and makes me a little nervous, because we are often times investigating the government's case. especially in federal cases. we do not get a letter of discovery in federal cases. that is nearly closed in federal court. based on discovery, we are firing off subpoenas early in the process, why?

because we want to figure out who the complainant knows. do they have any bias with other witnesses? the best way to do this is to investigate social media. people put all kinds of crazy things on social media. if you issue a subpoena to facebook, you would be shocked at how much of a trevor trove of information you get back -- treasure trove of information you get that. now, when you submit a subpoena to facebook, snapchat, instagram, they are challenging saying that you need a court order, which is obnoxious, because that statute only applies to when the government is conducting an investigation, not when the defense is conducting an investigation, so it should not apply, but now we have to be prepared to make that document. -- argument. so a good defense attorney should take this cause up. and we can all come together and make a formal complaint, formal pleading, because we will have to issue it time and time again. we should be prepared to argue

that we are seeking this information not under 2703, but under the confrontation clause, and rule 17, the rule that authorizes a subpoena. the governor decision is exciting, but -- carpenter decision is exciting, but i am a bit skeptical and we have to realize it will also impact the way we investigate cases. thank you very much. [applause] ok, so we have heard a little bit about how it might impact practice, whether you are a prosecutor or defense lawyer. what does it mean going forward, what can be argued, what may be argued back, but to bring it out in little bit broader to talk about maybe, what is the technology, what does it do, and how many contain the premises of life -- privacy of life, and how does it impact communities -- we will hear from matt mitchell, who is a data journalist, the

director of digital security and privacy, and the founder of crypto harlem. it is impromptu, he claims, to teach -- in upper manhattan. in his free time, which i'm surprised he has. he trains activists and informational securities. please help me welcome matt mitchell. [applause] matt: hey. when i was on my way to washington dc, i drove into a wall. that did not really happen. i drove over a speed bump. you see the difference? my talk is about the difference. that is what carpenter represents to me. i want to jump into things we can do to protect her data. the first thing you can do is use data instead of using cell towers. a lot of his youth imessage, some of us use signal, those

things do not have the beginning of a call, end a call, there is no location data shared when we can make it using circumvention technology that uses encryption. that is a smart thing to do. and you can communicate using a vpn when you are on wifi. and you can, this is for you, friends and family, other people in your law firm, the people you might know, clients, etc. you could also not bring your phone with you, which also might be turning your phone off for putting it in some kind of blocking case, or a device that will change it up. and the last thing, we are creatures of habit, but if you have your phone on and change your location that you go to, we learned about locations and 95% identifying you as a user or a human being -- yeah, switch up where you go. so let's live in. -- dive in.

we have been talking about location data and privacy. we have an assumption this is totally normal that everywhere we go should be, that we have these tracking devices on is constantly known as cell phones, so everywhere we go the information should be collected. so i think we should probably begin by thinking critically about that and challenging at. there is no reason why that information is not destroyed immediately. there is a quality of service argument for maybe a few hours, but then it does not need to be archived in any way. that is my perfect world. ro me, adding a warrant fo location data does not make the data request go away. so one example could be, if somebody in law enforcement says, we want information on this guy, and you would be talking directly to my cell service provider, maybe metro pcs, or sprint, and then they would just provide the location

data to you. now that we have the supreme court decision, the location data has to be -- a warrant has to be approved, then the location data can be given. that might be like, there is a super shady guy named matt, please wake up, we need this warrant. so i do not think that the speed bump is the same thing as blocking location data, which is my argument. so we should celebrate all of our victories, but let's not get too excited about this carpenter victory. we have a long way to go. now, private location data is in a stack of other data that tells me where you are. other things of value, including cell phone towers, simulators that are small devices that the cell phone connects to, gps traces, facial recognition and object recognition, we know about amazon recut mission program, and things like this, not to mention as disembodied,

social media -- that is a huge problem for everyone. everything we do, including some of our websites that we visit, give away our location. all those things, they will have the same location data and there is a warrant behind those things. i was try to tell you some stories about how that breaks down and how it does not protect us, like marginalized communities. that is black and brown folks, odbc, anybody seen as an other, you will be somebody who people are going to be suspicious of, where you are and what you're doing. location data is a key part of that. there is a huge impact of police surveillance on these over policed communities. by over policed, i mean you are in a place where existence and your behavior is criminalized to begin with. and by over police, i think it will have a higher percentage chance of having contact with law enforcement. we know from the british medical journal, injury prevention study

in 2016 command that african-americans and latinos, specifically males, are likely to be stopped and questioned more frequently. that usually leads to further police investigation, etc. and what we also know is that 2018s to the february study, most of americans have cell phones. congratulations, america. when you're looking at that group, 77% are smartphones. that is a huge amount of us on iphones and android's. when you look at people in america who are, according to the study, self identify as white, 94% of those folks have these cell phones. the interesting thing to me is black folks, 90% of black folks have cell phones, so it is over indexing but folks have more cell phones, right? have cellks, 97% phones. you have a group that is marginalized, criminalized, and

have these devices in more saturated areas, more commonly than they have the devices. so you will see location and privacy when you see that data. overata that is -- the index on black and latino folks, right? that ise have a group over policed, has high conduct with law enforcement, high level of traffic -- tracking data created. when you look at the privacy issue, we need to see at as a surveillance issue. and surveillance, we all agree is not a good thing. it would be great if we did not need to surveilling buddy, but not everybody is -- it is not even. and marginalized communities are under a huge level of surveillance. so one thing i want to get into a transparencys

report for a lot of these cell phone providers, like verizon and at&t, but when you look at the mobile network operators like metro pcs, boost, things like that, they offer lower cost connections and it is harder to find their transparency reports. i had a really hard time finding metro pcs's transparency report. i still have not found it. i want to see, at least by the end of 2017, we have to have that. so we can see how these things matchup. this weekend in dc, we had a lot of protests, people on different sides of the keep families together. and when you go to an event like this in georgetown, or you show up on the national mall with a cell phone/tracking device, it lets me know where you are and how long you were there. that tells me a lot about you. that presents a chilling effect

where people say i want to stand up for my rights, and i believe as an american there are certain things i want to protest against, but i am afraid to show up and have my location being there. right? one thing to have a photograph or a video, but to have this stored forever is another story. that creates a chilling effect and a negative effect on our democracy. there is also a negative effect on people of color and marginalized folks when they protest. the protest in grand central station in november 2014 and engine 15, protesting the death of eric garner and michael brown. ohe nypd, there was a case t get more information, freedom of information on what was going on during the pretest. it seems like they might have known about the protest before it even happened, during its inception. and it was like a die -in, peaceful protest. and because of the manhattan

supreme court, a justice's decision, they had to disclose information and what we found from the initial disclosure from the nypd, which was slow and not everything, is that police had access to group messaging of the organizers. black lives matter organizers. and i would say that, for public safety, do we need the content of people's group messaging and location data, and where does it end? boyle, a member of the national lawyers guild, his information was connected to cell phone tracking device, and because of freedom of information act we know about this and we know that he thought to get records from chicago -- fought to get records from chicago where this happened. there was another case in 2016, from 2014 from information act,

where freddy martinez sued the chicago police department because they got information on whether a cell phone was used in his community, in his vicinity, and it in the because of a decision in cook county by kathleen kennedy, the information had been given to freddie. it was have hardly put together -- haphazardly put together. this militarist were in use. and what we are seeing is even though a want is necessary to use this surveillance technology, it is used to for the slightest thing, the smallest infraction. and mostly, we see a lot of that used, the gathering of -- with the gatherings of people. you will collect everybody who is there, their cell phone and location. which tells you a lot about that individual. there is a lot of discussion about bank robberies. and i want to think, like, bank

robberies do not happen that frequently. i will go out on a limb there. the people protesting seems to happen more and more every day in this country. and we need to think about how to protect the civil rights and our political rights. and if i know where you are going every minute of the day, where you are moving to, i can have an idea of what your politics may be and who you're organizing with, and that is not what this country is about. two weeks ago i was in geneva at the u.n. speaking to the human rights commission, the 30th gathering. and the chinese government, that member nation had a statement about, we are protecting all my rights of human rights defenders through our real name policy. through that policy, the chinese government knows who you are, what your real name is, when you're on social media, when you are on a phone, where you are moving, and where you go.

we probably do not want to be in that same boat. i mean, just throwing that out there. that is not what we are about. perhaps, before we get excited about this speed bump on the collection of location data, maybe we should ask, is location data collection even a good idea? aren't there other investigative tactics and tools we could use, as well as tools the prosecution can use, right, to protect our communities? then we look at cases like in texas, rocking ella gone, who woke up to his door being smashed in. he was pulled out in his underwear into the night with his 15-year-old, in 2017, and he spent five months in prison because of facebook posts. right? some people say that it might be the first case of a black identity extremist as a

foreign-policy that leaked in 2017, a story by the fbi be concerned about people fighting for their civil rights. and i feel like it is a slippery slope and we have to be careful with that. in my community, we have young people who are caught up in getting conspiracy charges because of cell phone data and location data, your with and who you know. there is a case of -- henry, who lives around the corner from me, and julani spent 18 months in rikers because of association. and i think that through location data, we need to challenge that. i will wrap up. thank you, everyone. [applause] jumana: i will buy all three panelists back to the stage -- invite all three panelists back to the stage. i have been taking notes and i have some questions, and i know

the audience will have questions too. ok? so, i very much appreciate this discussion, because there is a very exciting speed bump of the carpenter case, which has opened up possibilities, as the previous panelists indicated, and some messy possibilities in terms of where do we go. and the question of the practical impact, not just in the day-to-day life of a prosecutor or defense attorney, but the person who is at the end of that prosecution and communities impacted by those investigations. so i want to dig into what i heard from all of you, if that is ok -- what time do we end, officially? i want to make sure that i leave some good time. yes, excellent. i do not want to cut anybody short. so i think there is a lot to dig

into, in terms of, do we think about this in the sort of micro case, or do we say we have cell phone information and anything over seven days, what can you look at? do we look more broadly at other types of information that could fit into that mold? do we look at the macro, in terms of what is the larger world we want to live in? what does it mean if we have all this information, before you get to the questions that the lawyers love to talk about, more than seven days, or less than seven days? so with that framing, todd, you are talking about, what do you do with cases already existing and how does the prosecution operate going forward. a couple of things came to mind when you were talking. one of the things you are saying is you would try to get the records to get a warrant to do a

bigger search, but if you look at the majority opinion, they are talking about how details on how invasive the information is, so should you even be able to ask for that kind of information in order to build probable cause, versus the court saying you actually need to have a higher standard before you can access this information -- that sort of change. and what do you do with it? because prosecutors are any position where you can look at this conservatively and say this is exactly what they said and it does not apply to anything else, or you can look at it more broadly and say this is where things are going and let's go get a warrant going forward. it is what the government has been doing generally. one circuit decided, if you want the content of emails, go get a warrant. other circuits said, we will just go get a warrant. i would love to hear perspective on how broadly you might approach in this as a prosecutor.

you have done training, so what advice do you give the prosecutors going forward, because we of cases that already exist, but we have more cases brought everyday. prosecutorof a child might come at this differently from an appellate attorney like myself, but for me -- tria prosecutor might come of different way from an appellate attorney like myself, but i love getting a case where on appeal they are challenging the validity of the warrant, because in that situation is so favorable to the government. and i do not know how familiar you are with how this works, but initially when you apply for the warrant, you have to show the magistrate or issuing judge you have probable cause. but when the warrant is challenged in a motion to suppress evidence, the reviewing makings not asking, not

an independent assessment, they'rethey're asking whether te was a basis for finding probable cause. even if the warrant does not meet the substantial basis test, you still have the good faith exception or the seclusion eric rule. the court might say it does not meet the substantial basis test, but we think there is enough there that the police could rely on this warrant in good faith, so we will not apply the exclusionary rule. that is to say, i mean if a prosecutor comes to me and there is some question about whether carpenter covers the type of records they seek and they have probable cause, go ahead and get a warrant. if we are dealing with a situation where you do not have probable cause yet and you need the information because you are

still in early stages and you need the information to build probable cause, then i think are aou have to -- if you prosecutor you have to take the decision on its face and it says it is narrow. to it says it only applies seven days or more, so if you feel like you need that information and you do not have datable cause and this is that is not fall within the scope of the decision. you go ahead and you do it and you litigate it and you see where it shakes out. so i think that this will be, we will find out very quickly going forward just how broad the reach of the decision is. jason on thel put spot. when it comes down to that, we are in a place where you are faced with you do not have

probable cause, should you still try to get a warrant, should you go with a narrow description, and all the messy litigation that might come? is there an assessment that says, let's look at the behavior, is this serious enough to fight over? to me it is a question of, are we talking about something broke into a house and hastily tablet, versus you are trying to solve a string of more personal assaults or something that has a heightened importance to the community, where you might have a stronger leg to stand on to say this is a critical investigation and obviously it is not fit in the narrow exception, so with or be a way of approaching this where you want to maybe use discretion and think about which fights you want to have, or do see this more as you is what you can use while you can use it approach? todd: from my experience, of course more serious and far ranging crimes, there will be

more resources devoted to that, but the extent that you are not somehow resource limited, i think prosecutors come if they feel like they need this information to prove a crime, i do not think, i do not think any prosecutor is going to say, can get this information for a particular crime, i do not think they will say it is not serious enough. we are not going to do that. to --k if they are going they are going to use the tools available to them. so i do not think in most instances they will make an assessment based on the severity of the offense. if that was your question. jumana: so, this is a nice segue to jason, because i think most lawyers would say that prosecutors are never -- [laughter] w, bearing that

in mind as you think about how to approach cases, you brought up a couple different things like ip addresses, social media, other things that -- you live in baltimore and baltimore seems to surveillance tools and technology together. so as i read this case, i know one of my colleagues was looking at the decision about all the things they are not deciding in this particular case, and he read it like a roadmap to all of the things that should be argued next. this one, this one, this one, pay attention. in that context, they said, we're not talking about security cameras, which i think for us, within about the camera in the corner of the story that is pointed at the register, making sure you are not stealing. but when i think about a place like baltimore, that likes to combine everything. they have cameras on the corners, they are feeding them

into a system, they are using planes over a protest, and many times altogether, what arguments do you see making going forward that if location information involves privacy or is very invasive, these things in combination are so invasive that it may -- it not only hits that speedbump, but maybe even hits the wall that matt referred to. where do you see yourself when encountering different technologies? jason: 20 start combining all these different -- once you start combining all these different technologies, the government can paint the picture of an innocent person, tracking their affiliations, tracking who they talk to, when they talk to that person, and just because they are using a different, just because they are using different pieces of technology does not make it any less subject to the fourth amendment. the point is, we are getting to

the exact same place that that the court was reluctant to go. we do not want the court to be able to paint that broad of a picture of sensitive data, so i would argue that that is why surveillance is -- of the fourth amendment. jumana: i think the other thing that is not, i have even seen an entire ride up where we felt like, what is this with the decision for a moment. do not get so excited, because the fourth amendment has artie been gutted -- has already been gutten and you will not get a lot of protection in court. do you see any kind of silver lining to this in terms of the fourth amendment protections? i think a lot of defense lawyers are ready to argue very successful cases, and that has been with the good faith exception, or maybe the evidence get suppressed and you have good language, but no real impact on your particular client or that

case. and so do you see this as opening up any more doors for changing that analysis at all? jason: full disclosure, i am inherently skeptical. types off the scariest prosecutors i have ever encountered are those like matt who say things like less just go get the warrant. we can solve all of these problems up front. what i have encountered, this is not widespread, but in my practice i do not find as many prosecutors who are as willing to take that extra step, so i think because i haven't seen many prosecutors do that, that is going to open the door to a lot more litigation, like you said. the the roadmap is already laid out in premature as to what we should be challenging next. i suspect my colleagues across the aisle will not seek the warrant, and it is shocking because warrants are so easy to

get, it is not like these are brain surgery. a lot of them are just rubberstamping them anyway. so if we see the shift that matt is describing, just go and get the warrant, then i think -- that is exactly where we were pre-carpenter. but i do not see that happening right now. i think a lot of my colleagues will be looking for these orders that will leave the door open to litigation for people like me. jumana: any response? i know you are not a brain surgeon, but still very smart. jason: my bad. i'm sorry about that. [laughter] todd: look, i encounter search, theyere a could've gotten a warrant and for whatever reason they didn't do it. i think sometimes it is maybe just a little bit of human nature. it might be, yeah getting one

might be easy, but if there is easier way to acquire information that you think is lawful, then that is what happens. but i will say that, at least in my experience, following the jo nes decision, excuse me, following the jones decision we saw a quick transition to police acquiring warrants for gps tracking. so i do not know. i think there will be a response to this. i am pretty certain. yeah, i think that there are going to be isolated cases where, you know, they could've gotten a warrant and they didn't and then they open themselves up to suppression challenges, but i certainly think there is going to be an adjustment. that said, i think that the

carpenter decision does leave a lot of room to argue that it is fairly narrow. it says it itself. justice roberts said this was a narrow decision. expecthink you can prosecutors to take it on its face. and if they cannot get a warrant , they will get the information without one. jumana: matt, i will switch over to you, because there is a question of information. yours,it property, is it is it rising to the level of something that needs to be protected? and the question of, if you read the decision, there is conversation about what the founders intended versus how we live, so if i could follow up on question, live how people have their information gathered and how

they are prosecuted on association, whether it is through social media or location. but there are some people who argue that just as the supreme court seems to be catching on to the idea of your cell phone is not like the phone that you had to dial, was on the wall, it carries a lot more information and they should not be able to search it just because they arrest you, they are sort of recognizing we are in this brave new world, but with millennials coming up, they are constantly on their phones, they are facebook live, putting their location on everything, photographing food, sharing every aspect of their life, there is the idea of privacy, the idea that privacy is completely different, so we need to evaluate that way. so being the person who fits with tech and what it can and cannot do, i would love to hear your perspective on. matt: we have this publication called "our data, our self." and when you turn on your phone,

whose phone is that? is it your phone? when you send a text to friends and loved ones, and your phone creates data, is that your data or does it belong to the state? i would argue that nobody in their right mind thinks that is tim cook's phone, and i would argue that nobody thinks that their data belongs to anybody but themselves. but as a technologist i can tell you all the different parties who have access to most of the data on your phone. that is why people want to find solutions to remain private. we are all complicated. the person we are in front of our loved ones is not the person, we are in front of our romantic partner, where people at work, or maybe even in this room. we are not hiding, but it is weird if you are acting like you are at the bar when you are in church. [laughter] your phone knows all of you and

cannot stop whispering as the inappropriate time to all parties. that is something we need to shut down, because nobody wants that. the supreme court, nine justices, nine smartphones. i do not know who has the android, but nine smartphones, correct? does not make sense to have what i see as wonder woman shows up, with the truth lasso, and you have to tell the truth, every location you were for the past seven days. one of those locations is going to seem shady to the right person. like, would you answer me if i said, tell me everywhere you are, you cannot lie, every minute for the past seven days. usa, that is really weird -- you would say, that is really weird. we need to catch up with reality, where people actually are. millennials might over share, but snapchat deletes itself, well for them, they think it deletes itself. [laughter] so even they like a femoral things. the concept of privacy will

need die, technology -- we to understand how it works, but we still have locks on our doors, so some things will never change. jumana: i know we are running low on time. i could ask questions for like three more hours, but i am not going to. i want to open it up for questions. for the audience, i know we have at least two people with microphones, so please raise your hand and they will bring a microphone to you. back there. >> hi. this is for the lawyers. what heard about how we do not have a bright line anymore. and you can answer based on which direction, but would you be happier with a bright line than you are with the current state of play, where do you think the kinds of factors that were laid out in the carbonate pace a -- carpenter case are a good thing, something you want

to weigh on when you have a case in front of you? would you rather it be one day or 14 days, or do you think it is hard to get that right in the abstract? jason: that is a tough question. it depends on the context in which you apply a bright line. applying a bright line to things like the good faith exception may be a good idea, because if you apply a bright line there, there needs to be binding appellate precedence in this particular jurisdiction. then that gives officers, theoretically, a very clear guidepost. idea,it may not be a bad because it gives everybody an idea as to what the law is. the problem is technology moves really quickly, so i do not know -- that may be where matt comes in. i'm much or how practical it is to have a bright line when it comes to how many days are

enough days to constitute a sufficient intrusion to warrant for a warrant. do not think we can apply a bright line there. but i mean, he may think otherwise. todd: i think from a law-enforcement perspective, you know, it is always good to have sort of clear rules. you know what the ground rules are. to that extent, if they had come out and said seven days or less, no warrant. seven days or more, warrant. at least you sort of know what you are dealing with. i am not sure how you get there way sort of principled under the fourth amendment. i think part of the problem that is happening here is just the existing fourth amendment rules sort ofit very well in

this new age with all of this data that is being generated by our new technology. and i think that is what you see with this decision, where you have all writing separate opinions, talk about their view of the fourth amendment. i didn't share some of the criticisms. now i'm starting to wonder. it certainly puts a lot of power in the hands of judges to decide what society considers a legitimate expectation of privacy. i don't see a lot of clear guidelines within that framework. so i guess the short answer to your question is, yes, clear rules are good.

sure how you decide under current fourth amendment , less than seven days good, more than seven days bad. jumana: i think it's an adjusting question. -- interesting question. we all learn as lawyers that it's whatever you can argue. talking about how this case seem to have flipped everything on its head, because it's usually the prosecution. this stuff is so specific, that we absolutely no this has happened. and the defense says come of there's no way you can place my client there. it seems like it's the exact those arguing on behalf of the defendant, the stuff was way too specific. with --y looks at it

and argue it is so broad or so narrow. they can be overturned or sidestepped. i know there was a man right there and glasses. >> thank you all for your comments. i'm interested in parallel construction, how the government conceal some of its new technology sources, especially from the defense in cases. and i wonder if carpenter changes -- whether conceal the use will be challenged in a case that they are still on appeal. jumana: underscoring to explain, parallel construction, meeting where maybe the government had discovered something on one technologyer using a they don't want to disclose on court.

so they can affect a re-created path to the same evidence through a more lawful or toward -- or more transparently -- more transparent mean. >> i don't see how carpenter could give any additional tools to challenge that. to the extent that the government needs a warrant, we are going to see things like emails, maybe text messages. that the government tries to conceal what they did prior. i would love to give it more thought. >> this may be another instance where being an attorney might differ from a trial prosecutor. cases involving

the use of the cell site simulator. there was this nondisclosure that the baltimore state attorney's office was this stuff it read is going to cap -- going to come out and you are going to have to deal with it. i would prefer they would be transparent. eventually -- be transparent, acquire the information in a lawful way, i how is prefer that. i don't know how much that gets at your question. you are not going to be able to hide the stuff forever. if you think it's going to stay a secret, it's probably not.

>> we used to use biometrics, like measuring your head. then we started using fingerprints to solve crimes and protect folks paid today we live in a world where the technology that is used is a secret. we only know things by accident, those who still on the strange things, or people sitting in prison wondering how did i get caught for something like this? there is no law that says there needs to be a town hall or conversation. how would you even know it was parallel construction? people just drop the case. i think that is kind of dangerous.

>> we have time for one more over here. >> i think this is a question for jason, maybe others. we have spoken about the applications of carpenter for similar and other types of data collection. theyou speak briefly to applications of defendant -- proceduralatershed case that will allow for tim carpenter to bring a petition for collateral review? jason: probably not. don't see us going back and looking at convictions where people were convicted of -- where prosecutors used data collected similarly. i don't see being it will go back and overturn those convictions. i have heard people ask whether or not we are going to be able to sue for a violation of the

fourth amendment. those types of cases because of qualified immunity. i don't see civil suits nor do i see us going back and overturning conviction. >> if you have already been sliicted based on the without a warrant,, let's say you made a motion and your cases that case is pending on appeal. if you have already had your have annd you don't argument that you didn't try to suppress this information in those are notkely

going to get released. not to put him back on the panel. the evidence will get tossed out. that doesn't necessarily mean they can potentially retry him if they have enough evidence to prosecute. carpenter, whoe succeeds -- and there may be good-faith arguments. the government may still be able to use the information going forward. the carpenter decision doesn't necessarily mean the evidence is going to get tossed out in every

case. >> that doesn't mean they don't have other evidence, right? how to handlen of this evidence going forward. i would like to join you and think me -- would like you to join me in thanking our panel. >> that concludes our program for the day. i would like to thank all of our speakers, not just our speakers but the entire support team here. we have a fantastic events team. the catering folks have kept this well caffeinated all day. our team that has been wirelessly miking all speaker seamlessly, the communications team that promoted this event, and all the staff and interns at privacy andn

technology. thanks to those folks and to our fantastic speakers and audience. another round of applause please. [applause] just a reminder for those of you , wehave not yet registered have a major conference coming up on july 19, the color of surveillance. we will be looking at religious minorities in america. we have a great lineup to the day. i hope everybody has a wonderful week and safe travels.

>> and live coverage on fighting crime and violence in el salvador. hosted by the inter-american dialogue and counterpart international, starting at 3:30 p.m. eastern.

>> on c-span, this we get 8 p.m. eastern, in prime time, tonight, from the atlantic's conference on the american idea -- >> if you look at the rhetoric, coastal elites are viewed as this little minority controlling valley, walllicon street, hollywood, the universities, who love minorities, who loves immigrants, they want to help the poor in africa but they don't care about real americans. >> what happening is that, in campuses and high schools for that matter. people get triggered by them and all that. people making these decisions are often the baby boomers out of the millennials. >> goldman sachs chair ceo lloyd blankfein. >> why couldn't you have a

consensus currency. i don't know bitcoin, goldman if it doeso bitcoin work out, i will give you why that could happen. >> thursday, racism in america. >> black people's fears of white are totally justified. why people's fears of black people are not. jeffd attorney general sessions and cory gardner talking at this years western summit in colorado. violentriminals and groups, especially ms 13, that vicious gang. it is one of the most violent and inhumane groups in the world. , "kill, rape, and control."

>> is part as are 50 capitals tour, and with the help of gci cable, the c-span bus visited .laska >> it provides a common understanding of. what going on, but it also provides a window into washington dc that those of us who are far distant way can see was occurring. it's really believe important to offer these to our customers, because we believe in the network's mission to be an unfiltered and trusted media source. informing on policy, politics, history, and current events. >> we will feature our visit to alaska. or listen on the c-span radio

app. >> book tv recently visited capitol hill's to ask congress what they are reading this summer. >> i just finished a book, it was very enjoyable. it's called dead lake, the last 20th -- of the with the it's fascinating. i like eric larson and his writing. about chicago's world fair. i'm not a big fiction fan, i like nonfiction. in my childhood i liked fiction. in my adult life i have enjoyed nonfiction. writing, andyle of i have enjoyed this and finishing this. i just started finishing another book, the general versus the

president. talking about president harry ,ruman and during world war ii the possibility of the nuclear war. i'm excited to read it. >> are there any books you recommend to your fellows in congress. >> my favorite book is great expectations. i love great expectations. it's one of my personal favorites. was a fascinating read and i enjoyed it quite a bit. >> book tv wants to know what you are reading. or at instagram, or posted to our facebook page.

--evision for stick television for serious readers. >> next, the of osama bin laden -- with the weekly standard's editor in chief stephen hayes. an hour.ust under >> i would like to introduce to gentlemen, one of them is a brilliant writer and incredibly keen thinker. one of the most important intellectuals in america. the other is steve hayes. >> i saw that coming the moment you start of the sentence. >> one of the great things about working at the weekly standard is you get to meet a lot of people with high influential power.