Fundamentally different from a president ial election. Different people vote. I looked at the House National exit poll and i made this point on the news hour but i will make again. Paring the 2014 elected electorate to the 2010 electorate i know this comes as a shock but not everybody votes. Whats important to me as a handicapper is who votes and now with the National Public opinion is. 2014 to 2012 and the 2014 electorate was more older, more male, or republican, wealthier and more of them said the country is headed on the wrong track. Probably should not surprise you those voters voted or republican. But even more than that in 2012, the exit polls said do you disapprove of the job barack obama is doing . Approve, 53 , disapprove, 46 . It shocked a lot of us. Midtoed him in the upper 40s. When people voted, that is who voted. This time, do you approve or disapprove, 44 approve and 55 disapprove. It was a different electorate with a different mood and delivered a different opinion about the president of the stop tates will president of the united states. Election because the country wanted change. Are there people here who think the president is doing a good job in the country is headed in the right direction . This doesnt make you wrong, just makes you different than the people who voted. [laughter] its simply a matter of opinion, but it is important who votes and what their opinions are. Forward . It mean going i have rarely found a politician who won an election who didnt think it was some kind of mandate. Or an affirmation of that persons agenda or priorities. Ive heard so much cockamamie analysis i get press releases from every group claiming they are the reasons why the republicans one or, very Creative Press releases, or why they are the reason democrats did not do even worse. It is rare you get a politician who says this was not about us at all. We dont have a mandate to do anything. I expect coming out of this election, republicans will over read their mandate. Not all republicans will do that. Many in the leadership understand their negative their mandate was more like a aive mandate will stop negative mandate. House and Senate Republican leaders will have problems with the rank and file. The republican majority is bigger and that may give Speaker Boehner more freedom, but dont kid yourself. The establishment guys won the primaries, macconnell knocked off the tea party guy. Alexander defeated a tea party guy, so we have the establishment, but the chamber establishment did not fight as much in these individual races and the electorates are different. Broun is leaving from georgia a very libertarian antia tablet and republican congressman from georgia. Michele bachmann is leaving, that tom emmer, the male version of Michele Bachmann is coming in minnesota. Boehner is going to have to tread very carefully. , i have three Big Questions and their leg their names are dance open and alaska and tom cotton in arkansas. ,hey are smart and personable but im not exactly sure where ofy fit in this question what is your role as a legislator. This is an important question particularly on the republican side. See theirse people role . Do we need to compromise and compromises good or are we conservative republicans to elect president s or our own party and they tell us theyre going to shrink government and instead against your and we get Medicare Part d and we are tired of it and not compromising. So what are they going to do . All three were endorsed by the club for growth. The club is very enthusiastic and tends to support candidates who view principal over pragmatism. I met with all three and can see them going either way. I dont know how they are going to behave. Ted cruz orjoin a mike lee, this is a neutral term ive just come up with in the last eight seconds. Caucus in theing senate that the in the senate. That would make things very difficult for mitch mcconnell. I think there are lots of questions and im rather skeptical that the republicans will be able to be on the same page. Finally, then i will stop did the president get the message . Probably not. The message got after 94, i think and he made it clear he was upset people didnt like him and he wanted to be where people were. This president is on foot he knows where the country should go and is right about that. Brothers spent a lot of money and a lot of people didnt vote. I dont expect a lot of flexibility out of the white house will stop i think washington will continue to be a place where its difficult to get eggs done. Lord knows we havent not in a lot of things done but the economy is not going not growing fast enough to stop its still going to take a lot of effort to get things done and a lot of enthusiasm and good will. Im going to say lets keep our fingers crossed. Or now from the cq roll call review and the legislative ironies for the next congress will stop the next panel is about an hour long and focuses on the successes, failures and some of the surprises of campaign 2014 and what lies ahead. [applause] good morning, everybody. You should be here. Thanks very much for that nice introduction. Thank you everybody for being here. The cameras,ed this is going to be on cspan2. Rob cecild to have and rob collins here. Im very excited. I will keep the introductions brief because we are going to get into the meat of our conversations. Going to start with the executive director of the National Republican Senatorial Campaign committee. Purple strategies before that i created the successful Hispanic Leadership network and work with chuck hagel and is a veteran of 14 campaigns will stop guy cecil is socratictor of the Senatorial Campaign committee. He was chief of staff to Michael Bennet from colorado. He had been a National Political and field director for the Hillary Clinton for president campaign. A very Successful Team during 2005 at 2007 as political director and is chairman of the Charter School in my Old Neighborhood of at work and a former minister which might have come in handy over the last several days will stop im going the news. Ith weve got to outstanding senate races. Im curious about what you are hearing. Is a state with alex postmark collection they have 14 days to get five counting centers. They meet when they hit a threshold number of ballots in their possession. Senator stevens went in up over 300,000 votes 50,000 votes came in after that. We knew the polling was bouncing all over the place thomas so we prepositioned teams before the election with the theory that its hard to get into alaska, its always harder to get out of. And payter to be there an extra night of hotel rooms. Folks who help with the or whatever that is called. Then we have some really good smart legal minds making sure everything is where it is. I think we are up high a significant amount of arjun that we should when, but we are going to see how the process plays itself out. Our candidate is feeling good about its position and with such an aggressive gap with such bothssive ground game on sides, a lot of absentees were turned in early and a lot of early voting occurred. Unlike the ted stevens campaign it, he ran ak at more mild campaign. There should be a richer mix of votes as opposed to 2008 when senator begich got 60 plus percent of the votes that came in after election day. We feel pretty good in our position. In virginia, mark warner was with most0 votes precincts reporting there. What are you expecting in virginia . As the canvas started to happen in the counties, most of it would the complete today. We expect senator warner to hold the lead. It is difficult to turn 16,000 votes into a win for the other nextand we expect over the couple of days that ed will realize the same thing and not for a recount will stop bikes is that what you are hearing from mr. Gillespie . These are candidatedriven events. If after the recanvas, they determine they want to take a step toward, we will take that step toward with them. You might have heard Steve Rothenberg predict republicans will ultimately have nine seats because he thinks the louisiana runoff will go toward bill cassidy. How do you view that louisiana race . I think Mary Landrieu got what she got. Her early vote wasnt what it and that enthusiasm just was not there for her. Baton rouge is a good place to deep roots in that community. Campaign andgood he has the resources and he did that primary. F im sure guy would agree that Mary Landrieu is a tough politician. If the republicans think this is a long and gentle slide into victory, they are going to cool themselves and if they step if they dont start budgeting right now, we could wake up and say we blew it. A very activeas history and usually there are runoff elections after every general election in the state. 2002 is a great example of what can happen. Runoff, she was going to theany runoff will stop africanamerican registration level at elysee and it is as high as it has ever been, and colluding including threekatrina. Our challenge over the course of the next weeks is to do everything we can to inspire our base, African Americans young voters, women to turn out in the runoff election. Is one thing we can agree on Mary Landrieu is a tenacious and tough all addition and i think she will give it everything she has over the next few weeks. Spread a photo weve got so many photos of Mary Landrieu and shes really in her element which he is campaigning. She is super vibrant and happy. There are not many candidates doing line dances. Louisiana is its own magical and wonderful place. She fits right in. From a philosophical point of view, do voters look at this as theyve already won the majority so is turnout going to be an issue or are republicans going to have a bigger majority . You could look at and say the democrat base was depressed and i going to be more depressed. Think we have to run our own races and from a committee perspective, our ground game will be the number one thing we focus on. Will cover the tv and the other stuff that goes into the communication but getting our folks out and call it a 1em we a runoff, but it is a brandnew election. We have to have the mentality that just because they showed up six weeks ago doesnt mean they will show up. Important. Its not for the majority anymore. A senate seat is a terrible thing to raise to waste will powernvesting hours and and money to get there. We are going to talk a lot about this cycle in general. Weree we came on stage, we talking about how we have both been on the how you have both been on the losing side. Did you have a sense going in that was how is going to play you hear tom cotton wins in arkansas and realize its going to be a tough night which mark i was on the committee in 2006 when we reclaimed the majority running against an unpopular president. Ationalizing the election in 2008, i was there for the first half of the 2008 cycle. Aree are two things that true winning is better than losing, that is still true. But the second thing is we knew going into election weekend that over the course of the previous week, the numbers were marginally moving against us in a uniform fashion. We do about 500 interviews in night in every state am attracting every race, and it became very clear that in undecided and independent voters that had not withtheir decision, even 120 million of ads in North Carolina or 100 million in colorado or 60 million in alaska, you still had undecided voters who were making an assessment about the election and it became clear they were moving in one direction over the course of that week. Obviously hoped we could stem the tide, but it became clear to us as time went on that that was going to be difficult to do. Nate silver he did not come out and give his speech until he was sure he that you guys had the majority. Were you seeing these same things in the weekend polling . I dont think i would let it through the prism of one mcconnell spoke. Room full of a volunteers who want to see you, you want to respond to them. They just spend a day, a week, a , so working hard for you you want to be considerate to them. I would not frame it up as was he not confident he would get there. I think he was in front of his team and wanted to say thank you. I think we felt good. Kentucky moved quick and then New Hampshire moved bizarrely and very quick. It should not have been called so quickly, i think. It was a tight race all night. To say what kind of night are we going to have . Polls plus the information we were getting across the country from our teams midfield, we felt like we were having a good night. Kansas at about 2 00, we felt really good about where we were and that was a pivot point where we said kansas is good, colorado we felt good, the information we are getting all day long North Carolina felt really good. The way the state was shaping up and in georgia, polling had bounced all over the place. We knew we were close to 50 but we were not sure we were going to get there. That was the feeling that we were going to have a good night. You know a lot about colorado. Think its important as a democrat that we take time to make sure we are analyzing the election and we are not over learning elections were learning the wrong lessons. One of the dynamics that is interesting is the election was not won or lost based on turnout. I think the comments about the way they are is the most telling in that regard. Contrary to what most people would think, there was a better gap tween republican ballot returns a democratic out returns than in 2010 when we run the when we won the election. Votersere 70,000 more that returned ballots. Democratic counties turned out nine points higher than republican counties and we increased the africanamerican percentage of the population of the vote from 19 to 21 , a two point increase in africanamerican turnout from 2010. The two largest democratic counties, we increased turnout by 16 . The challenges it doesnt matter in a wave election. There will be lots written about technology, republicans could have carried a commodore 64 and a wagon behind him going door to door. Wedid not will stop did not. We made a decision early on to invest on the ground in the instances was not going to be a wave election. Whats important for me to communicate as we should not walk away from that commitment. Changing theone in dynamic of a Midterm Election and not the final step. Midterm will not be a wave election. We need to continue to build the groundwork in states where we are not engaged in the election. Ofle we increase turnout, the 13 states that increase turnout, 10 of those are senate races. Its important for us to pause and assess and make decisions about how we continue to build the ground game for future elections. The 2016 landscape looks better. Of the 10 races rob and i frequently talk about, the president lost 10 of those races. In nine of those races, he was defeated i doubledigit and lost by 20 or more points. Electorate for 2016 were we are talking about a lot of other states. The governors race in maryland by 10 points, one of the bluest states in the country, by a smaller margin than you lost purple states that are competitive, it reveals there is something larger going simply whether your technology was good or whether you knocked on 10. 2 million. That is why i think it is that we dontus give up on the door knocking and voter registration. In a close election, that focus will pay off. Make sure we are analyzing everything and not coming to an act coming to a reaction on what worked and what didnt work. What paid off for the republicans . Said, in theat guy [inaudible] i had been around raising money and and around campaigns that the recruiting, funding finding candidate second win a campaign and win a general, candidates curious enough to create a modern campaign and would go through training. There are two bars we had to get over. The low bar is we avoid saying super alienating things that scare folks to vote. The high bar was could we go and present a legitimate case to change horses . , thom tillis gets an hour of free debate time because kay hagan did not want to show up. Candidate, weaker other states, you saw the republican saying lets talk more, lets debate these issues. The National Environment favored them but its our feeling that we train them up and invested a lot of time. Change thatcultural started in 12 that i hope will continue that we invest heavily invest in theand Technology Behind the door knock and invest in the door not your knock. Team for to your continuing to grant interviews for the press and telling us how to be better. The Democratic Movement writ large. That was a huge sea change that i had seen. It felt like every election cycle we got further and further away from the grasp roots and i 12, led by the rnc and the work that they did host and the campaigns that are state parties said lets get back to what we do best, which is talking to voters and mobilizing our team. Candidates were very nimble issues, when Foreign Policy jumped to the fore of the american peoples minds in september and october, we were pleased and blessed to have so many x military and current military candidates who are comfortable explaining the benefits of American National security and projection of force overseas. With ebola and the veterans crisis, they werent nimble and how they spoke and said im going to put this in my stump speech. They create a plan in april and that is what they execute on i think you can miss opportunities and their campaigns are very nimble in that front. We were really please with that. Part of the challenge in this election is that there were multiple times where republicans were able to easily nationalize the election. At crisis of the children the border, the veterans administration, ebola, isil, there were multiple times when it was easier for them to nationalize election, to making it personal to the president , which again, in a lot of states did not work. The reality is that the states where this battle was played out were largely red states and a couple of purple states. Unlike governors races, where you were looking at illinois, thesehusetts, maryland are deep blue states. The reality is places like minnesota, oregon, where where could easily have become races did not come races. In New Hampshire, the in 2010, thehange, electorate in New Hampshire was republican by three points. This election, the electorate was democratic by one point. The entire change in the ne shaheens that jeane sha had made the electorate four points larger. Heenot, senator sha would have lost by four points. The factour franken, we avoided oregon, the factor that we changed the electorate in New Hampshire demonstrates it did not work, but in the red to talkcontinuing about nationalizing the election, but on isil, health care v. A. , website became too much for us to overcome. I want to get back to something you said about the candidates and recruitment. A do not materialize out of thin air. There is a real primary issue it the replicant party, and was mentioned the troublemaker caucus. Was on the team, did not get as involved in primaries as he could have, but how much of that is a factor ahead, or how worried are you about that about republican recruitment in the future . In the primaries, and particularly people who are encouraging primaries from the right when you talk to recruits, on both sides, the first thing a recruit says is can i make a difference. If i go to washington, to i step away from if youre talking about running for the senate, they are successful in some other venture in their life. Why would i step away from something im successful to go to this place . Canada make a difference . Can i make a difference . One of the questions is, what does the primary look like . I sometimes wish i could spend more time worrying about what the democrats were doing in 2013 14, because we spent a lot of energy getting our class did a process, beating incumbents or recruits, and a lot of money and brainpower. It made it tough for us as a committee so when we went into a fullblown election mode we were heartened by the process in a professional sense, not an ideological sense, but i think primary does bring out some good. I can point to campaigns that bettertter, definitely post primary, they were tougher, but the to the process, problem is when you have fringey candidates who stand by their ideology, who are easily picked apart by democrats, yet to spend hundreds, if not millions of dollars defeating them, it is frustrating. There were folks who were significantly flawed candidates, set aside ideology, and every primary night they were saying i cannot wait to get this guy. Politically speaking. As you look at 2008, 2010, that is how they won. Toe candidates were driven. Callly y im not a referee. That is a big issue. Stepping forward we have to analyze and say as a committee, we pushed and pulled and did certain things to get people across, was that successful, should we continue it, should we go back to a laissezfaire attitude on primaries . I would make a recommendation we never apply an ideological scale to everybody we met with, and we met with all of our candidates. We invited everyone in the primaries to come up. Everyone in georgia was invited because we figured better candidates some folks chose not to come. Litmus test on ideology, but on if they can win. What i would invest in. With regard to recruiting, there is always an evolving process. It started in the red states, but by the end you saw bluechip candidates in all states, and that is what allowed us to be successful. Is it a wave historically speaking . It was a waveued election. Jonias a good way when ernst won that primary. We were able to spread outside statessix bright red where obama got 42 or less and we are able to field these candidates based on the sense that the primary process was more in control than less under control. Also as a committee we were going to stand behind them and train them and help them get the funds they need to run a full campaign. When you look at a 2016 field, you might have a rematch. What are some of the races you might be excited were you to have this job in 2016 . At each other,ng because neither one of us will have this job. One of the interesting dynamics of the next election cycle is that it is the inverse of this election cycle in terms of the map. There are i believe seven republicanheld states in states that the president won, played out in an election that less like a Midterm Election. When you look at pennsylvania there will be several races where the in states democratic president ial candidate is likely to win and it will be a small handful of races in places where it will be a competitive race. It is just a fundamentally every senate map is not created equally. And you look at the three senate classes, in two of the classes, the president won the election. Unfortunately, it was not this set is class. In this senate class the president lost the election amongst the aggregates of states, which has to do with the map, that the president , just has to do with the makeup of this particular set of states. One of the interesting things about this election is that there were a number of blue states that went south in 2010 and did not in the selection. The good state of michigan, for example, where we eventually pulled out about 3 million because their candidate was the fifth or sixth choice to run. If they had had a better candidate in michigan, the race wouldve been different, much more competitive, we wouldve had to invest more resources there. Example of aother state where other races on the ballot were much closer than the senate race in part because the was subpar. Ere the key for us by the time we were going into the last 2, 3 weeks of the election, was not let what was happening in the red states and in a couple of purple states spread to the minnesotas,regons, and from our perspective New Hampshires. The reality of our polling in last three or four weeks of the election consistently had scott brown within two to four points of senator shaheen. The problem was in every one of was at 50 . Shaheen there was a hardcore 49. 85 of the voters that were voting for shaheen because they like to jeanne shaheen. It was making sure the wave was not a tsunami that capsized races that in a normal election cycle we would win, but in the 2010 election cycle for example, in michigan, where democrats lost everything, we ended up winning by double digits. Were there any surprises for you . You did not think we would get that close in the race or races where they ended up turning against her favorite at the last minute . I think you want to start and say where were we in february, january 2013, and where did we end up . Competitive and winning big in iowa, North Carolina, still states that are purple if not blue. Uph, the cotton race opening caught everyone off guard. And you look and say, what happened there . But also the fact we did so well in the blue and purple states as opposed to the red states makes doing, like what we were the investments we made made a lot of sense, but the Biggest Surprise was virginia. Plus Campaign Across the board. Your publication today, we always just wish that outside groups believe what we believe, and we were so stretched and following the signs behind our campaigns and what we made our investments in, because the dnc race a lot more money than we did. They were outspending us, 12, 31, and we came from a fundamental position that either it can be decided in or could be decided in october, and when it was not decided in june, we were trying to save our money for the back end. Our folks say labor day is the day when people start looking for elections. Columbus day was the day when people start to really focus. We were trying to forward our cash, but they were spending so much in the movement that forced us to move more money, more money, and so that was a challenge that left us with the commitd bare, indications it was double digits for warner, Single Digits the last couple weeks, and we were able to put a small investment in there, that we never had the wrought dollars we wanted to. We had to move some dollars into sticks that were pretty bright red for some folks that we just had to make sure we were safe. But that was a surprise. If theres somebody who you look and say, pitched a perfect game as a candidate, it was ed. Ed ran an unbelievable campaign. 2016w do you view the map . Instability is one word because you have some incredibly talented politicians who will win the senate seat if they are in the senate seat. Talkinge some folks about doing things when they grow up, so i will leave it to them. If you read the papers, there are folks in key states saying they may run for president. That is the one thing i would have a question about. You look at the places where we are going to have to compete, and we have great candidates. Ohio, i would not want to go against him, rubio, ayotte, ron johnson, people who really are at the top of their operation. N a good i can already tell you at the nrc we have already met with those incumbents and started putting together their battle plan, and they are interested in how we set up our incumbents and challengers budgets, and we had sessions with them come saying, is this working . Wow, you are investing that much in the grand games . We did not do that last time. In talking to your campaigns, the tv budget is this big, your amending the you are mandate ing they put that much in there. You can say tough states, but you can look at them and say you cannot do it. U of already met with the you have already met with the class . Pretty early on both sides. Are you worried about primaries in those cases . Thinks theho republican primary is a carnation is in trouble. Candidly, i looked at those people who came out the weekend before the election, and there was all these messaging questions. If i was a democrat income month, i would get ready for a primary because in this Campaign Finance system, a very dedicated liberal or conservative and spend a few Million Dollars in a primary and create havoc. If you are at the white house, you have more control of the process. I saw a movement that is getting restless when i see the weekend before a whole battery of message questions. If they are serving we are not liberal enough. We will see. I am saying there is a restlessness in the wings of the party and now they can be funded. As a journalist, i am prohavoc. You see any of your senators having problems . You never take anything for granted. This is my fourth cycle recruiting candidates. Divisiveostly avoided primaries. We have avoided primaries that cost us in the general election. Er take anything for granted, but there might be Wishful Thinking on the other side about pat leahy or patty murray getting challenge because they are not progressive enough. You look at the class itself, because there are so few democratic seat this is the flipside side of 2010 that is coming in. Which survived in 2010, was a tough Election Year for democrats, is because you have strong operations. You are in touch with your state, i would not predict there are going to be too many primaries on that side. Do you regret coming back to the sdns . No. I did not take the job because it was a sure thing we were going to win. I took the job because there was a reasonable chance we were not. I think that anybody who is in this profession only doing it because you want to be assured success probably is in the wrong line of business. My disappointment is not although i would rather win. My disappointment is for the 21yearold organizer who is knocking on doors for the first home, arkansas. My disappointment is for the care fervently and believe strongly in our party. My disappointment is that the race was not close enough at the for theuse of the wave Success Stories that i think will be told over the course of the next year maybe this is my ministerial side shining through, but, no, i am very happy that i stayed. Im unhappy about the outcome. But our senior staff will be over to my house for chinese and and i could not have asked for a better group of people to work with. I could not have asked for it better slate of candidates to work for. And i have no regrets about coming back. Questionll save the about what you are doing next for the very end. We have not talked about obama and that was and it almost influence. I remember covering him in 2008 where you had every marry your role may your role candidate wanting to be the one to introduce him at the rally wherever you work because they knew he would help them. And this ended up being the complete opposite six years later. Was that turnaround surprising to you or was it inevitable in january 2013 . You saw the same thing with bush, and some of the comments, whether purposeful or not, i will let reporters figure that out. It struck the that they were not ilpful to the guys cause, would say it helped us more, and you wonder how these things, october,up gtmo in what are we doing here . And i sit at a previous session that are best story was president obama on president obama reminding folks what they did not like about this administration. Getting in front of these stories, they did not. That helps us, and it set aside my opinions, i would say poll wise, the president in october, you saw his approvals dip just enough that it made us feel good that this midterm was going to be about the president and our messaging that we set up, which was bumper stickerized in the coverage because we just use these voting stats. The voting stats were tied with how this impacts you, not just that isincumbent hard to do those in hum dents incumbents were tied to the candidates, and if you want to talk about obamacare, economy, Foreign Policy, whatever. That was always that we put these campaigns and messaging through. I think that was an important factor in this campaign. Not the onlyt was thing because if you look at our campaigns, we actually, our how we wereand coordinating them, was talk about what our candidates word going to do. Cory gardner talking about wind power, national gas increasing teachers salaries. Federalon talking about issues like Social Security, but it was not a National Debate say how they were going to honor their commitments to the seniors. So we were finding issues that were local and very timely and relevant for people in those states and talking about them. There was this overarching National Conversation going on about isis and other things that helped feed into the election. Is that what you did . A slightly different perspective on the advertising itself. Over 2 3 of all senate adds that aboutpublicans ran were the president , which is a remarkable statistics meeting hundreds of millions of dollars were spent on this election. When you are doing that in states in this map, it has an outsized effect. It did not have any effect in minnesota or organ. It did not have an effect in michigan. It cannot have an effect in New Hampshire. It had an effect in large part, not girly, but in red states that the president lost why double digits. The president did everything we asked of him. 2. 4 million letters from the president to obama voters in the last week of the election. We did radio scripts, robo calls, mail, we tried to efficiently utilize what the white house was offering, and i have no qualms with what the president did for us. He traveled around the country. They raised about 25 million for senate democrats, which was a historic number for the committee. Lists available, data available, but the reality is a map is a map is a map is a map, and it is not the sexiest part of election because it is a story that has been told for two years. The other thing that is often discussed is about the president possible travel, and president s travel, and the election will not be won or lost if the president visits a hotel when you are spending hundreds of Million Dollars on television. We polled in colorado, one of the most important points rob has make, people assume in washington that is impossible for someone to be undecided in october. The thing you always hear, how is somebody undecided in october . The reality is people are living their lives, right . Single moms are taking their kids to school, parents are taking care of their children, and their parents. People are worried about making the doctors appointments, eating their kids to little league, they are worried about getting to work on time and fighting traffic. Americas not as is not coming to a ballroom at the Liaison Hotel at 8 00 a. M. To listen to the two guys talk about elections. Or watching on cspan. That is not the way that most of america processes information. There are an enormous number of undecided voters who decided the election, and this is the important point that i want to make. First, in colorado in july when we pulled, amongst undecided voters, the people that were going to decide the election in colorado the president s favorability rating was 40. We are constantly striking the balance of how do we efficiently use it. It is not reflective, and this is the thing, not reflective personally of the president. Is reflective of a midterm electorate, of a map that is dotted by arkansas, louisiana, alaska. These are not democratic bastions. In a good number of states, besides the democratic senator, there is no statewide democrat on the ballot. There hasnt been no infrastructure bill. We dealing with a very lopsided map. Keeping that in mind is important. The second thing is, going back areurn out, whether you looking at colorado, iowa, or North Carolina, which is where a lot of our time was spent over the last three weeks, the electorate got more democratic from 2010. Gistration think about that. It got more democratic in 2010. In North Carolina, in 2010, democrats lost everything. It was historic losses in the state legislature for the first time going republican in decades. In republican of governor was elected in a race that was not close. Four years later, in an environment that is more hostile, kay hagan comes pretty close to winning a senate seat despite 125 million being spent, and she did that in large part because we turned out tens of thousands of more of the most this enfranchised people in the country in a state where republicans shortened the early period from two weeks to one week and eliminated a lot of the easily accessible voting sites for africanamericans and for young people. And so it goes back to trying to learn the right lessons. This was not a turnout election in the sense that another door knock would have mattered or another 500,000 whatever mattered, it was a wave election, and decided ultimately by the undecideds over the course of the last month, maybe two months of the election. I think having that perspective, it is cold comfort great does not make me feel any better about the election. Of success isrt win, it isg when you about trying to learn from when you do not, and that is the lesson that democrats have to take. There is no question there are a lot of disappointed democrats. My message to them is take a few days, average wrinkle or two, did a little bit of rest, have a little chinese, assess what up, dustpick yourself yourself off, because there is an election in two years. That is what i think we should be focused on over the course of the next couple months as we gear up for what is going to definitely be another election cycle. Is always happening. I will point out the one candidate the president did go to a ballroom to campaign with, gary peters, is now senatorelect gary peters. Rob, what is next for you . You know, i think i have four kids, and they are all very young. Is a toughitics business, so i think my wife is assessing my next move. [laughter] weighing a number of thoughts, mostly of me being home for bedtimes and helping on dropoffs, pickups. Which im glad to do. That is kind of the focus, just trying to get the family together. And disney world. And disneyland. Timeit was announced last we were together that we would go to disney world. In california, disneyland is better. That is the arrangement we had before the election. [laughter] you got to get to the voters when they are young. Four little democrats [laughter] that would be a trick. Well, my parents are college professors, scratching their heads from newy family is york, more radicalized than i am. Washe early 1980s when i so that is the short term plan. We have an orientation and we have these races that are going to close out. Peoplemazing how focused can get and then you have election day and we have to herey mind our knitting and go in. Guy, you been asked this question many times. Hillary clinton has been known to call winning and losing candidates to check in on election night. When was the last time you talk to her . What i am going to be doing after the election [laughter] first, im going to disney world with rob and taking care of his kids. I will your question. One of the great things about the last year in particular, separate from senate races, is the rapid expansion of Marriage Equality around the country, which has been remarkable to watch. My husband and i got married last september, and i o him a honeymoon, yes, thank you. [applause] we are going to go on a honeymoon. That is going to be my first decision to make. I saw secretary clinton in colorado when she was there. It was a great event and she actually do a fundraiser for us as well in california, and we got a chance to talk about races. She gave you the full debrief. Theres no question that i want Hillary Clinton to run. That is not a breaking news alert. Running for office is a personal decision. One of the things that rob said which is to come when after four cycles of recruiting candidates, the candidates do not really ask about winning and losing cause if we are recruiting them, is because we think they can win. What they are asking about is what impact is this having on my family . How does my life look different if i win . Rarely is there a conversation about what happens if i lose. It is about talking to spouses and kids about what life will be like during a campaign. It is about unfortunately we are in a modern era of research where everything about your life is exposed, which i think makes it much harder for recruiting, because i think candidates look at what is happening and say why do i want to put myself through that. A lot of our senate candidates, that is what we talk about, about why despite all the reasons not to do it you still should . I think for secretary clinton it will be a personal decision, and i hope she does it. Regardless of whether i am involved in the campaign, i will be a fervent and vocal supporter of her efforts. For that. Stay tuned thank you both for this enlightening discussion. A great panel for you today. Next, tom davis and ted strickland. Thank you. [applause] the American Enterprise institute also held a discussion today on the Midterm Elections. Looks think mainly on the republican takeover of the senate. The senate did not surprise me very much. I missed two senate races compared to my preelection perdition. Epicas kansas which was an polling fail. The other was North Carolina, which was pretty close and went down to the wire i did some bad math and underestimate little bit the republican wave. It was clear going in that both on the state polls and the National Polls that this is going to be yet another election where senate seats were dependent, not independent variables, which is to say people across the board were not considering whether person x or whether was better, but was better. There are some interesting things i think we want to take a look at, and that relates in part to the polling fail question, and i want to spend a little but of time on what does this mean for 2016. With respect to the polling l, my mean for this immigrants, it is the old Clint Eastwood spaghetti western, the good, the bad, and the ugly. There were only a couple races you put in the good category, most in the ugly category. And the republican perspective, the city that mouse the city mouse versus the country now straight if you look at the polls on the margin, whether the was ahead, and compared it to the actual march, the polls were not that bad in a lot of states. You have sure, the final politics margin was in favor of shaheen by. 8 . It was actually 3. 2 . In georgia, the margin was pretty right. Winning by three points. In alaska, they are still counting votes that will likely to tilt democratic. ven virginia was not an epic fail, even though the margin was a layoff. The final percentage, warning was 48 point 5 as far as the polls prediction. The margin was 49. 2 . By guesses what happened there were a lot of of people that had never heard of ed gillespie who voted for republican because that would have counted for the accuracy of the warner prediction. Where you find big errors are four states, in seaview can figure out what the difference is and why i might have put it in that category. Difference, 2. 3 in the final poll, ernst wins by 8. 5 . Kansas we talked about, roberts won by nearly 11 . Mcconnell ended up winning by 15. 5 , and cotton one by 17 . City mouse versus country mouse. The states where you have the biggest polling errors also have incredibly small populations in what we would consider metropolitan areas. Take a look at colorado, where the polling fail was virtually none. Up by 2. 5 , more democratic votes are still coming in does even though are not california ask them if they are slow in democratic counties. Almost a complete peg. Colorado waste in cast in metropolitan areas. Contrast that with kansas, where less than 50 of the vote is cast in metropolitan areas. That is including topeka as a much apology eric, which was considered to be a small area outside of kansas. Iowa, 50 of the road, including a lot of places that we would not consider metropolitan areas, dubuque. Ux city, arkansas, the total if you count the counties that have 50,000 votes or more, less than 30 of the vote is cast there. Kentucky, if you include cincinnati suburbs, it is around 33 of the road, 34 of the vote. Where there were significant rural populations, the pollsters completely failed. That raises a question of whether or not the differential d, butse is not r versus city versus country. Some of the discussion hosted earlier today by the American Enterprise institute. You can watch the entire discussion at 6 30 or watch at any time online at www. Cspan. Org. The midtermed about elections today. He held a briefing on capitol hill reporters and spoke about several issues, including efforts to repeal the health care law. How do you walk this balance without getting sucked back into the dominant issue, and is it the predominant issue when you have new freshmen coming in who never had a chance to vote no . Obamacare is hurting our economy. It is hurting middleclass families. It is hurting the ability for employers to create more job. And so the house i am sure at some point next year, we will move to repeal a obamacare, because it should be repealed, it should be replaced with commonsense reforms that respect patient relationship. Whether that can pass the senate, i do not know. I know in the house it will pass. We will pass it. That does not mean that we. Hould not do others things there are bipartisan bills that have passed the house, sitting in the senate, that would make changes to obamacare. There is a bipartisan majority in the house and senate for repealing the medical device tax. I think there is a bipartisan majority in the house and senate for getting rid of the paying and advisory board. How about the individual mandate . There are democrats and republicans who believe this is unfair. It does not mean we should not try to get what we can. You mentioned three or four different sensitive issues. Doesnt that siphon this congress right back into this of obamacare, and the numbers get 70 s . To the 60 s and there are bipartisan majorities to take these issues out of obamacare. Need to ask the president to let him choose. Some of the comments from boehner. He will show the entire briefing tonight at 8 00 eastern right here on cspan. Both the house and Senate Return eastern,esday at 2 00 awaiting action in the house. Radel spending for the remainder of fiscal 2015. The government is operating on temporary spending through december. The senate will be voting on judicial nominations and Childcare Development block grant programs. Also leadership elections for the 114th congress which begins in january. Weekend friday at 8 00, more reaction to the Midterm Elections. Saturday night at 8 00, a debate on the future of the internet. Sunday evening at 8 00, tavis smiley on his latest book. Friday night at 8 00 on cspan [applause] cspan2, gentlemanoccupied paris during world war ii. Saturday night at 10 00, the idea of racial progress in america. Sunday night at 10 00, Edward Wilson on what makes us human and different other species. Friday at 8 00, medal of honor recipients reflect on their experience. Saturday at 8 00, the social prejudice immigrant face during the 1800s. Sunday night, the 25th anniversary of the fall of the berlin wall. Find your Television Schedule at www. Cspan. Org and let us know what you think about what you are watching. Call us, email us, or send us a tweet. Join the cspan conversation. Like us on facebook. All of us on twitter. On twitter. The congressional Internet Advisory Committee met earlier today to consider sexual privacy concerns and the legal ramifications of hacking into peoples private photos and socalled revenge born. This is an hour and 10 minutes. This topic is on your program, the twitter information is on there as well, as is the information of the speakers and their twitter accounts. You can contact them on twitter or any way you would like. By theosting this event congressional internet caucus Advisory Committee in conjunction with the can junction desk with the internet caucus. He house side, rob good latte. We are in their death for hosting and supporting this we are in their debt for hosting and supporting this program. We agreed internet should have a place where we can debate these issues with expert speakers like we have today. I want to thank them and our moderator today is with politico, with the Cyber Security reporter, and she has covered this over the past couple years, and she is situated to moderate our panel today. Her twitter account information is on the program as well. Take it away. Thank you, and thank you to the net caucus for having me here today. A very interesting topic which we will be diving into headfirst. Panel, from our here down on, we have marianne franks. To her left is the director of the Free Expression project. Hoo tech. Umnist at ya have a lotine people of expertise in this topic from a lot of different angles, which is where i wanted to start off today. One of the most interesting things about this hack of the celeb photos is it raised a different issues for a lot of different people. As a Cyber Security reporter, i covered in terms of the Password Security on the cloud and what the technical aspects of that but itght have been, raises a number of conversations from misogyny on the internet to what actually is the nature of the crime that occurred, whether you look at it from the perceptive of a sex crime, a crime, a First Amendment issue here, and we will touch on all those different takeaways today. How i would like to begin is he to the panelists could go down and say what for them was the one or two big takeaways from in hack occurred and how they solve the most important friend from how to look at this from. Starthink a good place to as any is with Jennifer Lawrence calling what happened to her is a sex. A lot of people were taken aback by the Church Relations because as a matter of law that is true. What it highlights is an invitation to what we think what a crime is, what we think a sex crime in particular is, and thinking about ways we can recognize it as being such. I think it is interesting to hear from such a high profile victim of this particular the hater that her own sense of one was this violation of sexual autonomy, humiliation and exposure that she would present five for herself as a sex crime. What i think would be the perspective that i would take on this is to consider why we criminalize certain types of behavior, when we start awing the line between bad behavior and behavior that we think needs a response from criminal law. Not a narrow focus, but a social expression, a condemnation of certain types of harms that are so serious that one of the only ways we can express it as a community is to say this should be against the law, and think about the particular nature of what happened to lawrence and other victims in terms of the daily suffering and humiliation thathave to experience, they can never get back, there is no way to undo what has been done, that the harm in these cases really is irreversible and ongoing. What i hope we can do to frame the conversation by looking to a perspective of the victim is think about why we might care rail e fact that such sexual humiliation has become an industry and what is our response validity as society, and if people are concerned about having a free and equal an open internet, what we should be doing in response to that. Itthank you, and i thought professorting how per franks was talking about expressions about this behavior, because that me was one of the major differences i saw in the response around this most recent exposure of celebrity photos appear to how this issue and how the nonconsensual disclosure of these images has been treated over the years. Five years ago or several years ago, when many of us seated at this table first started talking about this issue, it was difficult to get people engaged on the question. There was not a public conversation about how is this being used as a way to try to go after women, to harass them, to silence them, and to see that shift in the public conversation about there is much more major mediafor outlets and for people engaging on social media to be talking about the other side of the story, to talk about, no, people should not be going and following these links. The information might be out there on the internet, that we do not have to see it and to treat what has happened to the people whose photos have been exposed as a real harm that has happened to them. I think it is a good thing that we are having much more of that conversation happen in public and society to appreciate the real harm that is happening to women when they are targeted and this way. Of course, the concern that i a firstng from amendment and open internet background is wanting to see if there are proposals on how to take a stronger response to this, insuring that whatever these proposals are are not so broadly crafted that they end up pulling in a lot of protected expression as well. There is a way it is very difficult to craft a law that goes after, that makes a crime of disclosing information in a way that only gets after a bad or a malicious disclosure of information and does not also sweep in a lot of real and vital importance speech. I hope one of things we can focus today is looking on what are the existing laws that identify the kinds of horns that happen here, whether it is a person trying to inflict distress on another person, a person launching a campaign of harassment against someone, whether the federal Computer Fraud and abuse act to cover the hacking aspect of the spirit there are ways we have addressed the harms that can come from this kind of behavior in existing law that do not entail focusing specifically on the speech aspect of it. Was theret reaction was this it is a bunch of celebrities in trouble response, which is unhelpful and stupid because im sure no one in this room has pictures they do not want your with the entire some of those people on facebook, and that is i to get better way to look at it, because just calling celebgate was one of the words put around. If you want to keep your information safe, do that to , do they help, and an apples case, they do not print they had a weak implementation of twostep verification. If you had done it, they did not protect icloud backups. I am not clear on what is getting backed up and how to control it. It is an opaque system. You have this case where these people did not think they were putting their pictures on the internet, and it is not only clear in a lot of cloud services, where did your data go . There is a story in the Washington Post earlier this week where a photographer from Johns Hopkins he thought this was only on his computer. We have laws against unauthorized access for peter assistance. It does an effective sort of thing. We also need to not everyone is going to go through the factor of two step verification, but it should be there, it should work him and you should know what is protecting and what it is not. I guess i have less to say about the specifics of the lawrence incident. One of the other things that is on this purview of this panel is a related question, a broader guess,n about, as, i professor franks, called it sites onmic of sexual the internet, photo sites, those kinds of things, which is a serious social issues. Emma tohts turn with the First Amendment, first of said,hich, as she crafting, even if we think this prohibitioncrafting that would survive First Amendment scrutiny with respect to much of this material, it would be quite difficult, probably not impossible, but difficult and would require some care to make sure it does not good deal of protected material. I got involved in this i had a student who is working on actually a project on copyright, possible copyright remedies around these revenge foreign sites, can you take down photographs based on copyright claims, and i spent half an hour, 45 minutes poking around at those sites about a year or so ago. Theres a good deal of material on there that is clearly protected speech. Theres some material that may not be. Drawing that line would be challenging to my thing. That is one thought i had. And the discussion about these issues, and there has been a good deal of discussion in the Legal Academy at least, about what to do about this, what kinds of remedies we can provide. Conversation and debate has moved often quickly to the operatorof website liability for hosting these photographs. There are existing we can get into the more the rest of this session, there are existing remedies that may provide relief to people who have been harmed against the individual up loaders of the private photographs that are being posted. But section 230 of the can indications act has of the two medications act has been can shoot and protects the website operator from being drawn into that tort liability paid it immunizes the operator against a broad range of tort liability, including this. So much of this discussion has come around to people arguing about whether to 30 230 should be repealed completely, modify to allow actions against website operators. It is a very important law problem because many issues have this feature where the intermediaries, the website operators typically, are helping to spread this harmful information and yet federal law immunizes them against liability. I hope we can get into those 230 issues. Great. As we can all see, there is quite a bit at play here. Her haps we can start with and it is difficult in this case because we are sort of going from a very specific instance. This was Jennifer Lawler ands Jennifer Lawrence had private photos it was gotten into and her photos got onto the internet. Those are a lot of different situation,e porn and after that something went south, where the photo was initially given with consent. That is very different than someone hacking into a private computer that you may not have stored something on the web. It is different if someone gets the password because you used your dogs name is a password versus a sophisticated phishing are a lot so there of Different Cases that raise these issues. Generally speaking, what are the remedies who people feel that there are private images and private data in the Digital World has been exposed to the internet, what can they do now under the law to get relief, although they may never be able to get it back . I think it is important to focus on the fact that jennifer theence situation, and other celebrities come are different from these other types of context. It is important to not make too much difference out of these differences. A moreook at it from privacy perspective, it should not be a difficult intuition when people disclose internet information one party they also do not expect it will given to another party. Isher that will this disclosing that to your partner, or the cloud, it the obvious way to look at it is dont we have some kind of contextual sense of privacy . When you tell your doctor about your symptoms, you spec your doctor will not tell anybody else about your symptoms or share the pictures of your medical exam. You have plenty of situations where we can think about it not related to the charged issue of womens naked bodies, but think about all the ways we expect our information our information should be kept confidential relationship even though we have given it voluntarily. When we consider it that way, it is helpful did think about what we do in other contexts. Do we protect peoples credit card information, Social Security information, home addresses, do we protect companies trade secrets . I think its useful to think about why we should or should not apply those remedies here because it certainly is true that we can come up with ways for victims to talk about copyright remedies, for them to likeabout england suing suing for emotional distress, but i think most evil can see that with these types of behaviors, its difficult to talk after the fact about any type of remedy i think most people can see with these types of behaviors. Will workinfringement for Jennifer Lawrence, but it will not work for most people. Many private citizens will simply not have that kind of clout, and even when you get it removed from one site, it will pop up on 20 others, so copyright is not an effective solution for the vast majority of victims, and we also have to think about the fact that this will not just a situations of relationships gone sour, but ongoing and mystic violent relationships that are being used to trap people in these relationships, used as extortion to keep them from reporting is a good abuse to the police or exiting a relationship. Weve also seen that we have had plenty of sexual assaults via recorded in being broadcast. This is a big category of devastating intimate material getting out there, and the idea that there is any kind of lawsuit or copyright remedy that going to be responsive to that particular harm, i think its a bit naive or at least somewhat abstract, given what actual victims experiences had then. I also think it is important, again, as we try to think about adequacy of legal remedies, to think completely about First Amendment values and to think about the goals of section 230. In that thinking, consider how much of an effect i would say it disciplinary affect these types of harms are having on womens speech. How many women are now afraid of ever being intimate with anyone or having their webcam hacked or having someone have a hidden camera somewhere recording them having sex and maybe taking pictures at their skirt . How many women are afraid to commit themselves truly to their careers or to online discourse because they are afraid that this is what will happen to them . This is the punishment that will begin to them, and the laws best response will be, maybe we can clean up the response afterward, but we probably cannot unless you have tons of money and time, which many of these victims will not have because they have just been fired from their jobs or kicked out of their schools. We have to take seriously how much this is affecting of course, not only women because there are male victims, too, but using the threat of this type of the hager, using the actual use of this behavior as a way to shut women up and drive them offline, and as a freespeech matter, as a section 230 matter in the interest of offering open discourse and equality, we really all should be hearing about that. Bit may disrupt the orderly so we mix this up, david, if you could go in depth a little bit more into what are some of the ways that the law as it stands has tried to grapple with some of these issues, and what are the ways people have looked at adapting laws that were crafted long before the internet was. Hat it is today yes, and i think the hacking there is the hacking side of the problem, the Computer Fraud this mayt is 1 well have been in this specific instance a violation of the Computer Fraud and abuse act. Accessing a protected computer without authorization gives rise to both civil and criminal liability under the federal criminal code, and it could be applicable obviously, im not giving anybody legal advice or taking a position on whether or not it is, but that is certainly one avenue. Also i guess on the both, as there are several people have mentioned there are a number of state law remedies for some of this behavior. As recognized in one state for outrageous conduct, outrageous activity. I guess in response to what marianne said, i completely agree. To think of copyright as a solution to this problem is bute and not very sensible, let me just say that the copyright act is one place in the federal code where a grieved parties can quickly arrange without a lawsuit to have materials taken down from the internet. There is notice and takedown in the copyright act, which is a very powerful thing. Smallrobably covers a subset of the problem, but i think it is not a trivial subset of the problem where people can in fact at least there is a remedy that is useful in terms of removing material that for one reason or another they believe they have a claim on. Notice of takedown procedure most websites operate on automatically. Send them a message, and i have to more or less give you some. Rocedures to follow if you want to claim copyright immunity, they must do so. Speaking, millions of times a day, this operates to actually remove the material from the site. One very quick comment i want to again,out the notion does the law have to wait until something happens something before providing a remedy . I think in this context, the answer may well be yes most of the time. This is a lot of what we are talking about falls into the category of detected speech or speech, theres a very with a priorem restraint doctrine that says you cannot put it up in the first place. That would avoid much of the more but that raises even serious First Amendment problems than ex post regulation of this, raises its own problems. I think that has to be taken that has to be thought about more carefully. A little could talk bit we mentioned the Computer Fraud and abuse act. And hacking. Im sort of reminded of several sarah palins email address was also hacks, instance. Ar notith hers, it was guessed, it was Password Recovery questions. Hopefully, we will all be in a position to make that mistake at some point. The point being that we put a lot of information on the internet and do not always think about the levels of security. What are the levels of security for information on the internet, and how does the law protect those right now . A a lot of peoples complaint is that it is so overbroad. If you read the text of it, it basically says this computer might be on the internet, and you use it in a way that was not specifically authorized by the people who own or control it, and you can be charged under this, which leads to it can criminalize a lot of basic Security Research that needs to solve the problems we are talking about right now. If a webpage is coughing up data because you into the right cfaat, that could be a crime, even the you have to do that to prove to the owner of the page that they have a problem. I would say in this case the problem is not that the existing , but theyt protect us also put in a bunch of other stuff that criminalizes activity that the people in white hats need to do to stop the people wearing the black hats. Becauseinly as well there are some in cases it can be hard for prosecutors to figure out which ones to bring. How many tax dollars do we waste on persecuting aaron swartz, who was you could say he was being not very nice with harvards i. T. Systems. This was a fellow who put a laptop in a closet to download Academic Research to make a berkeley available taxpayerfunded research, i believe. It was a cfaa prosecution, i believe, and he committed suicide. Now that we have some sense of the lay of the land, moving into what can be done to change the laws and address the issues. If you can talk about you mentioned a little bit when laws are being crafted, its very important to understand what you are sucking in unintentionally. At some point, im sure you could weigh in as well. There has been a lot of effort not necessarily at the federal level but the state level to try to figure out ways to write laws to criminalize some of this behavior with Different Levels of success. If you could sort of give a rundown on what has been tried and where the pitfalls have come up. Sure. A professor at the university of Maryland School of law has been working very hard to figure out if there is a way to craft model legislation that would allow going after, you know, only the identified criminal activities that they want to target with preventt of law and not a whole host of other speech. There are key categories you have to think about. What kind of content is covered . The content we are talking about is generally content that is protected under the First Amendment, you know, when it is created. A person taking a photo of themselves or of a partner of theirs, the nude image of a person is constitutionally protected speech, and there is certainly no crime involved in the creation of the image at the outset. Of ising to define a set it sexually explicit imagery, imagery that reveals different types of nudity or Sexual Activity without nudity . Theres a lot of activity a lot of debate over what exactly is the nature of this content, and it is difficult to define because there is a fair range of this the sort of photos we could all think of of ourselves getting exposed to others that we would see as a harassing sort of effort. So trying to define the category of content that would he protected so its not so broad to include rings like, you know, a photo of a woman breastfeeding or some other kind of nudity that you might very well be able to capture taking photos in Public Places and really try to focus it in on images that are in this kind of this sphere of intimate that professor franks is talking about. Its also who is potentially liable under these bills, which is a big question. It seems clear that you want to be looking at the person who uploads the photo out of the consent that they have or have not received from the person depicted in the photo, but theres also a question of how thee laws are drafted syria website where the photo is updated, does it include any person who looks at the photo who may or may not know that the photo was uploaded without consent . To give aud just couple example, there is a Virginia State statute that was passed within i think it went into effect this summer, and the first prosecution under that law is under way, and it is a thatively narrow law includes a requirement that there is an intent to coerce, harass, and intimidate a person and,splaying their image, you know, tries to define what the content of this sort of image would we. Draft a attempt to fairly narrow law, and i do not know if it has been challenged yet under the First Amendment by any group. On the other hand, the state of arizona also passed a law that, again, was the nude photo law, trying to restrict the ability for people to share nude photos of other people without their consent, but it basically it would make the display or publication or sale of nude images without the consent of the person depicted a felony. That was sort of it to the law. There were no exceptions for newsworthiness. No real acknowledgment that if somebody poses for a photo for an art exhibit, and they have clearly given their consent to the person taken taking the photograph to be included in the exhibit, if someone else then hosts that exhibit online, they have not gotten consent directly from the model depicted, it is implied. Its the process of being a model in an art exhibit, but under the letter of the law as it currently is in arizona, that website that is just hosting stills from the gallery show could he in violation of the law. It is done with the best intentions of wanting to get the consent of people depicted in photos before those photos are shared, but not really done with a view to just how much sharing of images happens in a way that does not violate an initial consent but also does not involve direct, explicit consent. This is getting a little bit into the weeds of the law here, but these are the kinds of things that we have to think through if we are looking at is it possible to craft something that really is very narrowly tailored and sort of anticipates all of these unintended consequences . If you could pick up on that and talk about what some of the efforts have been to change law at a state level and if any of that could be translated, you know, on a federal level. This is a difficult task, of course, because never drafting is always difficult. Im sure everyone ins room knows that. You could start out with the best of intentions, and you might end up with something that is not that great. That is certainly true. The organization or which i serve as the Vice President , the Cyber Civil Rights Initiative we have published a guide for legislators trying to make clear what elements we think really are constitutionally sound and protective for victims and what the pitfalls are we think these legislators should avoid. We havethe points made been making for quite some time. There needs to be a narrow definition of what is considered sexually explicit material. We need to be clear about who it is that is responsible for this type of criminal conduct. We need to have certain exceptions, including exceptions for the Public Interest, which is a pretty broad exception but can include if like Law Enforcement or newsworthiness, but there are a couple of things on which we might do verge. As much as i agree that arizonas law has problems, and that has made the news recently because the aclu is now suing it we can look at what some of those problems are. There is no Public Interest exception in the arizona law. That was a mistake, and when they are probably going to fix, but as for the rest of it, it is not at all clear that there would be as many problems as the aclu and many others are trying to make it out to be. Exceptions include exceptions for images that were disclosed in public or commercial settings, so really, anything we are talking about is a model issue, photography exhibit none of that will be a problem. War over, the question of whether or not you have to get consent from every Single Person every time is also not true because the law says it is when you knew or should have known that the image in question was posted without consent, which is a pretty good standard to consider when we start inking about revenge pouring sites revenge porn sites. You have a pretty good sense that this is a nonconsensual image, and thats exactly the type of behavior we are discussing. As to the question of who should be responsible, as many of you probably know because of section 230, which allows for a lot of immunity for online intermediaries, as far as state criminal law goes, 230 will always trump, so none of these state criminal laws actually 230 immunity. T to it cannot actually preempt. That is obviously not going to be true if there is a federal criminal law that gets passed. As many of you know, section 230 is not absolute. It does not apply to copyright. It does not apply to electronic privacy communications, but it also does not apply to violations of admiral criminal law, which is like google, facebook, twitter all have to care about child pornography laws because section 230 does not write them a blank check for that. I think we can all agree that is probably a good thing. What i want to emphasize here is that while it is true that we unintendede about consequences, sweeping into much speech, we always have to worry about that. That is true with every single law. There is no such thing as a law that does not sweep in something that we are probably not going to like sleeping in. The question always has been not just in the First Amendment context but also in criminal law generally, on balance, are we accomplishing more good with this law than bad . For us to suggest or to have a any of response that says time you suggest to someone that they might not be able to disclose whatever they want to a disasterhat means for us as a democracy, or the internet that has not proven to be true in many contexts, and this one that we can take that we have discussed already is the notice and takedown has been going on for some time. Many people were convinced when it was passed that it would check the internet down. It looks like the internet is doing ok, even in light of the fact that it is a very powerful tool to get people to stop saying certain things in expressing themselves. Same thing is true of child put out with the laws. Same thing is true about gambling laws, and, frankly, the same thing, ill say again, is true about trade secret is, Identity Theft, voyeurism, all kinds of situations in which we have for quite some time accepted the fact that disclosures of lawful information can be criminalized. If we think about the Identity Theft context, none of us want to be criminalized for having a Social Security number or a credit card number, and were not, but if someone takes that information and uses it in an unauthorized way, we do say that is criminal, and the same thing happens with trade secrets. This is not novel. Maybe the only thing that is novel is we are now dealing with the type of conduct primarily directed at women and trying to treat that the same as we would treat other types of sensitive information, and perhaps we are resistant as a society to giving those same rights, but that maybe should not be the way we would approach this. We really need to think about what we count as privacy, what we consider to be the social value of saying you cannot actually disclose certain information unless we want to live in a world where there are no Identity Theft protections, texans, norecord for confidentiality protections at all in other words, we are living in a world in which we restrict speech at all. The question really is when is it with it on balance to restrict that speech or not . Some people will say that is not what the First Amendment does, but effectively it is what it does. There are plenty of situations not only when the Supreme Court has said on balance we have to consider these tubs of harms and consequences, but also many times where people do not even bring up First Amendment questions. How many people really think that spam is a First Amendment issue . How many of you think that other than david, thinking that spam is a first amended issue is kind of a rare thing. Its a question generally speaking about criminal law, copyright, about our law generally. Do we think that what is going to happen, the people we are able to protect and the types of values we are able to support are more important than the few things that might happen otherwise . That said, i do not want to trivialize or underestimate the fact that we do need to think as much as we can about unintended consequences, so lets remind ourselves that no law can ever accommodate every single unintended consequence. There will always be some measure in which we will be depriving people of some measure of their liberty because thats the way that laws were, and unfortunately, most of the time, when we have to pass new laws, its because our society has come up with poor if it ways to hurt other people. We cannot just say were going to let that happen because we are all full up on laws and we do not want any new ones. Again, its a question of trying to figure out how we traditionally treat privacy, confidentiality, intimacy, and why we are holding off on doing that here. Question is a very quick response. Aviously, this is contentious, i guess, difference of opinion that will not be resolved in a 50minute program, but just to focus on what was said about looking for ways to craft a law that has more benefits does more benefit i would think this is an issue supported by lots of authority that that is precisely what the First Amendment does not ask. It does not say to weigh the benefits against the harm. It has a higher threshold in cases involving the suppression of speech. Ely showing that harm is you know, that the good outweighs the bad is sort of what the First Amendment is on the scales of that determination, and i think it does make it more difficult. It is not simply enough to say that this is present preventing harm when the harm is speech related. We require more. We require more precision in the drafting of those statutes to do Everything Possible to ensure that Everything Possible to ensure that protected speech is not swept in. Once we do that, if it is an economic crime, we do not have to be that precise. Marianne is of course right no law is perfectly precise and gets 100 of the bad guys and 0 of everybody else, but in the First Amendment context, we require efforts to at least move that, i think,on would be difficult in this context. Not impossible, but very difficult. Section 230 came up again. I dont know if you want to pick up that conversation again as well as how that applies here. Just to say that section 230 is one of Congress Great legislative achievements. I am prepared to say that. I think it is in large measure. You know, we are all in congressbashing mode all the time. Other than those who are sitting in this room, i suppose, but section 230 was of critical importance and helping the internet become the internet. Community you could not have facebook, tumbler, twitter, you name it. Explosion of usergenerated content was unthinkable. There are many reasons to think this is an active debate, of course, about whether broad immunity for intermediaries is a good thing or bad thing. I guess one thing to consider is as part of that debate, is tweaking that law a little bit an exception for this, exception for that, additional exception for Something Else probably makes it go away and rapid order. The immunity would disappear. There are a lot of claimants who would like to see section 230 who of people people have been defamed, people whose privacy has been invaded, people who have been scammed, people who have been defrauded all sorts of things who would like to see an exception for their harm, as it were, caused carved out of 230. They have a good argument. Why can we not just make sure there is a remedy in this case . I think once Congress Goes down that road and starts carving out exceptions, the floodgates will willd 230 will be largely disappear. I think that would be a dreadful thing for the internet. Inour wellconnected friends the Entertainment Industry have suggested all kinds of tweaks to would pose a kinds of liability issues for websites. Yes, they have tried, and it has not worked. In a little more interested how we can use laws already on the books, the prosecutors can with to make court life is painful and expensive as possible for the people who went after these ipod users and other likeminded creeps. I just wanted to build out a little bit on the section 230 point, to give an example of why, you know, those of us who are such staunch defenders of that law what role it really plays. A person orake website operator who knows or should have known this website this photo was shared without consent. If we had a law that said, you know, imagine i run my own photo hosting website. A created what i hope will be the next instagram. I get something way better than filters for photos. I dont know what it is, but im running my own site. A law on the book says i can be taken to court if summit he is claims that i know or should have known that a photo that was an imageto my site was of another person shared without consent. Currently, i can immediately get out of any lawsuit that somebody tries to come thousands of photos are uploaded to my site a day. Its doing very well, and somebody says, a photo of me is on your site, and you should have known that i did not consent to it under 230, i do not even get dragged into the court case. Is very clear i cannot be held liable for this, and i can go back to my business of running a photo hosting website. If the law changed and there was this question of should i have known that this photo was shared without consent, then we are in the case where i as the operator of the website have to go to court. I have two or three employees for my business, and now i got to hire a lawyer. Im operating on thin margins, and now i have a few legal fees because i have got to go and defend theres no way i could have known. A even we are talking of goodfaith operators who really had no knowledge and could not be considered to should have known that these kinds of photos were on their site, they will still have to go to court and defend that, and that is one of the real burdens that this kind of liability framework would put on operators of not even thinking about these giant internet platforms that deal with millions of pieces of content a day and what knowledge standard they have about tens of millions of voters hosted on their website, even just thinking about small companies, two or threeperson operations it will be vastly more complicated. The flipside, copyright lawsuits are not something that lawyers on retainer normally do. I guess it is a larger issue that we have made the law something that people who can afford to hire lawyers can be good at. To respond to that specifically, we want to balance the harm. It may be true that especially the Supreme Court has gotten into the mode of saying we do concernslancing tests, of overly broad laws must not be. Eal basically saying exactly that there are harms out there i can be addressed by this law, and you cannot complete say there could be all these things that might happen. There could. Thats true, but they have to be real harms, and they have to be the legitimacy of any statute. The case ofoking at a poor site owner, its true. Theres no reason to say that will not create issues. Of course there will be, but we also know that there are actual current harms, thousands of people who are actually being affected by this, whose lives are literally being ruined. Thats a real harm as well to say that we are not sure what will happen to these particular site operators it is a concern, but it cannot be the only concern. As far as section 230, people waving their hands saying that they want carveouts as well it already has carveouts. It has already been made clear that we are going to say it does not apply. That has always been a matter of interpretation, always a question of who we are going to say gets protection and who does not, which interests are so. Aluable we have to think about why that is the case. As long as we are going to talk about section 230, just one final note the goals of section 230, written in the statute itself, include to ensure vigorous enforcement of federal them and a lot to deter and punish trafficking and obscenity, stalking and harassment by means of computer. That is in section 230 itself, and thats what a lot of people seem to forget. Its not just about letting intermediaries do whatever they want. There are certain values and goals embedded in the idea that we would do well to ask if they are being served today. I would love to keep asking questions, and i will, but i want to ask a chance
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