Transcripts For CSPAN Technology Privacy And Law Enforcement 20170705

Overall evenings discourse about a 50 minute podcast and also a radio broadcast, and because of that we will do bits of production in front of you. You will see me say things like that i will be right back, but i wont go anywhere. [laughter] i will still be here. The other part of it is we will take breaks and i will ask for your entirely spontaneous applause, for the atmospherics. I want to introduce the debaters, etc. I will let you know ahead of time i will be making that request. We dont have an applause sign. It is going like this. If you see that, play your hands together. Lets do that right now. Lets have one more round of applause. [applause] in a time when Companies Like amazon and google and facebook are piling up mountains of data about us, the one place left in our digital lives where true privacy can be found exist oddly enough on our smartphones, which are designed so when you put the phone on lock, no one can get past its encryption, not even apple with the iphone or google with its pixel. Which is great, right . But not if you are in Law Enforcement and you have reason to believe a bad persons phone contains secrets that can solve crimes and stop terrorist attacks. In that case, should apple or google healthy help the feds bust the encryption . Is it patriotic . Or is this sort of privacy that encryption represents something sacrosanct, and not to mention, something fragile . You put a backdoor into it, who knows who might come through it later . This sounds like the makings of a debate, so lets have it. Yes or no to this statement. Tech companies should be required to help Law Enforcement execute search warrants to access Customer Data . Thats our debate. We are at the San Francisco im sorry, were at the sf just center in San Francisco. Im going to say its cleanly. None of that just happened. Thats our debate. We are in San Francisco in the Sf Jazz Center partnership with the National Constitution center with four superbly qualified debaters who will argue for and against the motion. Our debate goes in three rounds. The audience here votes to choose the winner and only one side wins. What would like to have you do is vote european as you come off the street to tell us where you stand on this motion. Take a look at the language. Its a lot of words. Tech companies should be required to help Law Enforcement execute search warrants to access Customer Data. Go to the keypad under your seat. Press number one if you agree. The side argued by this team. Push number two if you disagree with the motion. This teams position. Push number three if you are undecided, which is a perfectly reasonable position to be in as the debate starts. I will just wait a moment for contactontact eye from everyone. Ok. We are going to move on. You have a few more seconds to finish up. I want to move on. Tonight, we are debating the responsibility of Tech Companies when the government comes asking for data, especially encrypted data. We have one team arguing in support of the idea. Please welcome stuart baker. [applause] stuart, you have served in government in important positions. You were general counsel for the nsa and you served under president george w. Bush on the department of Homeland Security as the First Assistant secretary for policy. You have long argued that people who oppose government access to the kind of data we will be talking about tonight under appreciate how access to that data can enhance our security. Where does that appreciation come from . What do you know that they dont . Mr. Baker its not what i know, its who i know. I have seen the people who are at the fbi, and nsa, at the age dhs trying to protect us. More than half of them joined after 9 11 because of 9 11. They are absolutely under resourced, overwhelmed. They need our help. Without our help, they will not succeed. Thats why i believe that everyone owes them a duty of providing assistance when they can. John and its why you are on the side. Can you tell us who your partner is . Mr. Baker he is my debating partner for the second time. John yoo, he is a pleasure. I would share a foxhole with him anytime. John ladies and gentlemen, john yoo. [applause] he is a professor of law at berkeley and a visiting scholar at the American Enterprise institute. Following september 11, you worked on National Security at the department of justice and wrote controversial memos, which will be in your obituary. [laughter] third time you have debated with us. The last time we actually did it in philadelphia, your hometown. Your mother was in the audience. You told us then then there was no way you could lose with her sitting there. Well, shes not here tonight. What does that do to your game . [laughter] mr. Yoo you keep inviting me, i keep losing, so you are the ones with the problem. [laughter] the second comes to mind mom , probably works at nsa now, so she is listening in the audience it away. John ladies and gentlemen, the team arguing for this motion. [applause] now lets meet the team arguing against the motion. Please welcome welcome Michael Chertoff. [applause] michael, you have debated with us a number of times before. Welcome back. You are the cofounder of the chertoff group. You were the second secretary of Homeland Security under george w. Bush. Before that, you headed the department of justices criminal division. Way back, you were a young prosecutor and helped to put quite a few mob figures behind bars. In those days, there was no digital data like we have today. Would it have made your job easier . Mr. Chertoff let me just say im delighted to be here, and john and stewart were colleagues when i was in government. You know we did it the , oldfashioned way. Guys used to be wiretapped or they would have electronic surveillance. They would leave the room, walk around the block, turn up the radio loud. We made our cases with witnesses, photographs, circumstantial evidence, and we were successful. I put a bunch of guys away for 100 years of peace. Chris did you have to ride a horse back and forth to work . It was not that long ago. John tell us your partner is. Mr. Chertoff Catherine Crump is my partner. She is a professor at berkeley. I have not had the pleasure of debating with her, but im looking forward to it. John ladies and gentlemen, Catherine Crump. [applause] as michael said, you are a professor of law also at berkeley and acting director of the samuelson law, technology, and Public Policy clinic. For nine years you were a staff , attorney for the aclu. You have been sounding alarms about the Staggering Amount of data that Law Enforcement can and does collect on peoples actual movements by tracing their cell phones, photographing license plates. Daytoday, what steps do you take to make yourself less digitally visible, or is it not even possible anymore . Ms. Crump today its pretty tough. Online, you have tools to help you retain some measure of privacy in your data, but sometimes in the physical space, it is hard to do much but smile for the cameras. [laughter] john thank you. The team arguing against the motion. [applause] now we move onto round one. Round one will be Opening Statements by each debater in turn. They will be six minutes each. Speaking first for the motion, Tech Companies should be required to help Law Enforcement execute search warrants to access Customer Data. Here is Stewart Baker, former general counsel for the National Security agency. Ladies and gentlemen, stuart baker. [applause] mr. Baker thank you. The way we have divided it, we decided to divide the argument. I will be talking about the obligations all citizens have to help Law Enforcement when necessary, which i believe leads to the obligation of Tech Companies to provide assistance. John will be talking about why particularly today we need help with Law Enforcement from Technology Companies. Let me start. I would like to start with the question, which is whether Tech Companies should be required to help Law Enforcement execute search warrants to gain Customer Data . I want to stress what that question doesnt require you to support in order to come out in the affirmative. We would love it if you concluded that the government can require companies to put backdoors in their products or break their crypto. If you believe that, you are obviously going to support this motion. But that is not what the proposition says. It says they should be required to help Law Enforcement. To my mind, that does not mean they are always required, but they are sometimes required to help Law Enforcement. Thats not really a surprise, because everybody is required to help Law Enforcement in the right circumstances. If you have a unique ability to help Law Enforcement, and Law Enforcement cant solve the problem on its own, you have an obligation to assist Law Enforcement. This has been true for hundreds of years well before the u. S. Was founded. There was a commonlaw obligation to assist Law Enforcement upon request, particularly when only you could provide that assistance. Since then actually, we all understand it. If you are witness to a crime, if you have evidence in a file cabinet behind your desk of a crime, you are going to get a subpoena from the government, and you have an obligation to assist the government by providing them with the evidence you already have. This is the rule for all of us. Youre going to get subpoenas, search warrants, requests for that data. If you are a landlord and your tenant is suspected of engaging in drug selling or some other crime, the government will come with a search word and ask for your help. They dont want to knock down the door, we would like for you to use the master key. That will allow us to get in without the subject knowing he is being investigated, and that may turn out to be important. You have an obligation as a landlord to provide that assistance. This is a requirement for all of us. Its not different for Tech Companies. Theres no Silicon Valley exceptionalism policy that applies. The Supreme Court has said exactly that. In a case against the united United States was asking for help from new york telephone, now verizon, saying we would like you to assist us in carrying out an intercept of Communications Data online, and was in the company that is now verizon said, no, we dont feel like it. Why dont you do it . You can run a line to the wiretap. And the government said, you are in a unique position to assist us in a way that will not be obvious to the criminal, and therefore you have an obligation , to provide that assistance. The Supreme Court said it was right. Theres no special exception for phone companies or Tech Companies. You need to provide that because its a part of your obligation as a citizen. I guess i shouldnt sit down without mentioning the elephant in the room, which of course is apple against the fbi. I want to make clear that while im pretty skeptical about apples arguments in that case, you dont have to be entirely skeptical to vote in the affirmative in this case. Theres no one who is arguing here that the obligation to help Law Enforcement is without boundary. If you can show it is too burdensome, that the government can do this without your help, that it is going to cost too much, hurt your customers, if you can make a persuasive argument under current law, you dont have to provide the assistance. But if you cant, you are required to provide that assistance. The difference the one place where i think apple made a statement, made an argument that is inconsistent with voting for this proposition, is when they said, we can help, we just dont want to. That is exactly a defiance of the obligation that every other citizen has to provide assistance to the government. There is no exception that says just because youre the worlds wealthiest company, you dont have to do this. If you agree with that proposition that there isnt a Silicon Valley exception from the obligations of citizenship, then you want to vote in support of this motion. Thank you. John thank you, Stewart Baker. [applause] that motion is Tech Companies should be required to help the government search Customer Data. The next argument against that motion is Catherine Crump, former staff attorney for the and settlement, ladies and gentlemen, catherine crumb. You dont need to believe there is a Silicon Valley obligation to help. This debate is not about whether Tech Companies should hand over evidence they are capable of accessing in response to improperly obtained warned. Of course they should. This debate is about whether the government, by controlling the use of encryption or other mandates, can obligate Companies Like apple to design devices like the iphone less securely in order to facilitate the governments access to data. The answer is no. In this era of profound cyber insecurity, the governments role should be to encourage companies to design devices more securely, not less securely. I am going to talk about the importance of encryptions to preserve free speech and commerce online, and my partner will talk about why encryption inhibits enhances our National Security rather than the tracks from it. Detracts from it. We use it communicate with friends and loved ones, to understand medical diagnosis, and to engage in banking. Proprietary have information online, in the government also stores vast troops of data digitally, including National Security information. As a result, the security of the internet is critical, if the systems on to store all this data are medically insecure. Radically insecure. Pew reported over half of americans are personally experienced the major data breach. The issue is urgent. Having the content of review account dont online can be devastating. Just as Hillary Clintons campaign manager, who not only found that personally embarrassing, but that well could have affected the course of a president ial election. Our data is leaking all the time in large volumes. Comedies have repeatedly failed to protect it. People increasingly realize their data can be vulnerable. If we want the internet to continue to the a place where speech and commerce flourish, we need to have people be able to share their thoughts and their credit card numbers or the internet. Strong encryption is the best defense available against the growing threat of cyber attacks. Timing forncryption, all intents and purposes unbreakable. When strong encryption is deployed users hold the keys to their own data. That means data is safe from prying eyes, including the eyes of Tech Companies. Some suggest we ought to build a backdoor in order to allow Law Enforcement access to data. The problem is you cannot build a backdoor that works only for the u. S. Government, good guys, or other people with good motives. If you build it for them, the encryptions will be weakened for everyone. No one can guarantee security of a backdoor. Learned in lesson the recent ransomware scandal. 150 200,000 computers in companies were taken hostage. Why and how . Using a tool, the vulnerability that the nsa lost control over. The capacity for securing these types of secrets to the extent it used to exist is no longer present today. Issueoser you look at the of the feasibility of creating a backdoor, the more compressible a solution becomes. Think about this. What phones would apply to . Older phones that may be grandfathered in . What about phones built overseas . When german traveler comes to the u. S. And their phone is noncompliant, will they have to surrender the phone at the border . If so, that is a massive inconvenience for everyone who wants to come here. If not, it is a huge loophole for any kind of requirement. Who should be able to recover data . If the answer is Tech Companies should the of the recover data, well, they will be just pressured by the United States government in order to make data available, but by every government around the world no matter how despotic or corrupt. If the answer is not the tech company should control this but rather u. S. Law enforcement, well, good luck ever selling at overseas. To me, the issue is not about protecting us from the government. We have a rule of law, the Fourth Amendment, due process, and a culture of compliance to help with that. The issue is protecting us from the bad guys. There are a lot more bad guys out there to Law Enforcement agents. Fore create an opportunity government agents to use a back door, that will be taken advantage of many times over by criminals. They are unconstrained by laws and norms and they dont get warrants. If they know there key or some other way to access data, they will do everything they can to obtain. That he will become a central failure point. That is exactly for the distributed structure of the internet was designed to prevent. In this age of radical in six ready we will radical insecurity we will be better if Companies Increase security for user data rather than weakening protection. Thank you. We are halfway through the opening round of this intelligence debate. On john dunn. We have two teams of two. Tech companies should be required to help Law Enforcement and execute search warrants to access Customer Data . You heard the first two Opening Statements. Knowledge of the third. John, you can make your way to the lecture. You are a professor of law at uc berkeley arguing for the motion. Please examine, john yoo. [applause] thank you. It is wonderful to be here. This is a great venue. Is the cleanest jazz club of ever been in. I dont understand what kind of jazz is played here, but it is safe for all ages. It is also wonderful to be back with iq squared. It is great to be here. My job stuck about my time. Actually they do. Then i will make them longer. This is the fourth time ive had the pleasure the third time about the pleasure of losing. I will do anything to win this time. I will not be done is a fourtime loser on these things. Stewart, my partner and i debated about a year and avenue in philadelphia. We lost. I told independent to the hightech audience as much as possible. That is pandering for people from washington, d. C. [applause] it is also my great pleasure to be debating against my friend, Mike Chertoff who are often , think of as the finest lawyer i have encountered, certainly in government service. I have never been an opponent of his. Now after many years of , friendship and working together, i will finally be able to say what the hell i think about him. So watch out. It is great to be here with my print, catherine even i should have made it a requirement of hiring her that she never debate me. Im glad she is here. Im going to get serious. I think i heard her condede on the question presented it it is a very simple one. Should Tech Companies help Law Enforcement . I think the catherine said, yes, of course they should. So nobody has to listen to anything we say after that point. She cleverly, and this is why she is so smart and we hired her at berkeley, is she cleverly changed the question into a debate about encryption. I dont know anything about encryption. I dont care about encryption. I care about the constitution. Thats why im ready to debate about impeachment at the next debate. The constitution doesnt say anything about encryption. What the constitution says, and let me hold up my prop i am going to win this time. I have the Fourth Amendment. You should all get one of these, it is a pocket constitution. If you write to the Supreme Court, they will send you a free one. They all have different versions, i am not sure which one you will get. [laughter] the Fourth Amendment says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures should not be violated. Notice it doesnt say against all searches and seizures or some come it says unreasonable searches and seizures. It says unreasonable. I hope everyone here tonight would at least agree that is the standard. What is reasonable. I am not going to tell you what is reasonable. Im a citizen and we all have our own views of what is unreasonable. I think it is for our elected representatives to vote on legislation to decide what is reasonable or not. That is how we handled other changes in technology from the telephone to money transfers to all kinds of things where at the beginning everyone said, it is so different. We should have no rules or new rules. What we did was we adapted the rules of the past to the new situation we had before us in a reasonable way. That is the way our society operates and what we should do with data held by Tech Companies. If you think it is reasonable to use reasonableness, this is how i would do the test. According to the Supreme Court, in many cases, the court has said when you judge reasonableness, you balance the benefits of pursuing a particular action in terms of whether it advances government interest versus the loss of privacy. It is not a categorical, everything is offlimits, or the government can do whatever it once. It calls on us to make a balancing choice. We have after peter leifer judges to do that for us asked repeatedly for judges to do that for us. In this case, the balance would be the reduction of the possibility of terrorist attacks, i think. Stewart mentioned it would be remiss not to tension apple versus fbi. I also think it would be remiss not to mention in the united kingdom, the nation probably most similar to us in the world, they have suffered two terrorist attacks in the week, and there have been a spate of terrorist attacks not just in the united kingdom, but terrible attacks in nice, paris, brussels and lets , not forget the United States. I think sometimes we have a short attention span. We are being led by a president who has an even shorter attention span, and i think we forget the things that happened in the last few years in our country. Just in 2013, 4 years ago, terrorists bombed the boston marathon, killed three people. Injured 260 people. Just two years ago in San Bernardino, 14 people were killed by terrorists. 22 injured. Just last year, a gay nightclub was attacked in orlando, 49 people killed. 53 people injured. The reason i mention these is not to raise the scare that there are terrorists all around but that the government interest is to try to reduce those attacks. The only way to do it in this kind of world we are living in with terrorists who organize themselves as networks for they share information and take advantage of global commerce, is to get data into information on them, if we are going to have any chance to stop the attacks from succeeding in the future. Thank you very much. [applause] thank you. And now making his statement against the motion, Michael Chertoff former secretary of , Homeland Security, Michael Chertoff. [applause] am not going to match you joke for joke, im going to need all of my time. I want to begin on a serious note. We obviously all deeply feel for the families who of lost loved ones in london and manchester and all of the world. We know it is important to the best we can to stop these kinds these things from happening. I will to you, and this is from experience of having been on duty on september 11, the kind of abilities Tech Companies provide to u. S. Government to detect and prevent terrorism is vastly greater than it has ever been. There is a treasure trove of information has developed not only through metadata, who is calling the sending messages to whom, but locational data, geo video data, although this enhanced with Artificial Intelligence and analytics. All of this is made available to the government. When it is in the possession of a Company Provided the , government has a subpoena or some legal process. When look at the resolution, it does not say that we resolved that the tech coming should comply with lawful process because nobody debates that. The question is should they be required to go beyond subpoenas and warrants and turn things over based on a voluntary basis, when there is not a basis for a warrant or the is no subpoena . Or even more significantly, should Tech Companies be required to take steps to weaken encryption or other measures that protect information simply because right now those Tech Companies dont have access to the information and therefore they cannot comply with the requirement it be turned over. Let me be clear. They are now many different kinds of applications you can use that to not give the Service Provider the ability to access the data. When they get a subpoena or a search warrant, they give over what they can, and that may be the identity of the owner of the phone or ip address, they turn over what may be available to them in terms of routing the messages from one point to another. That is the metadata. But they do not have the ability to turn over the messaging in an unencrypted form, or in some applications, the messages have disappeared like under whatsapp, and therefore there is nothing to turnover. What the government is arguing for and what this resolution is arguing for is that tech copies companies have to go further. They have to organize themselves so they have the ability to decrypt with a duplicate key all the data that gets transferred so that they have the ability to store things that you think you have deleted so they can turn it over if there is a request. The fact of the matter is under the constitution and the traditions of this country, we do not require people to organize their lives so they store everything they say and write so it can be available if somebody wants to come along later and investigate them. So what are we talking about . Not just values in the constitution, we are talking about National Security. If you open up the newspapers, what you see is you have foreign nations hacking into our political parties, criminals stealing financial data, terrorists trying to get information about where americans might be going, particularly american servicemen and women so they can target them. The way to protect that data is not to expect the government to do it because they dont. It is to expect each individual take the steps necessary to protect that information. Often that does require encryption. Or sometimes it requires using an application in which the message disappears once it has been read. Are there that people who can use these things . Absolutely. But more significantly are the number of good people who use these to protect themselves. I would say it is a matter of National Security, the ability to let the majority protect themselves. That has got to be the highest value. I would also tell you the world is not going to go dark and we are not going to be in mortal peril if in fact we have encrypted communications or disappearing messages that cannot be seized by the government. As i pointed out earlier, there are an enormous number of tools available through metadata, locational data and similar things that the government can get and routinely does get from Tech Companies. Even in the case of the San Bernardino folks, the data that had been uploaded to the cloud was turned over to the government. It was only the data on the phone that it not been uploaded that was inaccessible to the Tech Companies and allegedly to the government, although the government eventually did break into it. There is plenty out there to protect us. I would also say to you that even if there were a rule that said u. S. Tech Companies Must have the capability to decrypt any message or must have the ability to store and retrieve any message even if it disappears, that would not stop the bad guys. They would go to other parts of the world or onto the dark web and would simply by encryption buy encryption that could not be opened or would simply buy a tool that allows them to make messages disappeared. We would have reduced protection for lawabiding people and would not really have deterred the people who are not lawabiding. I believe the government and Tech Companies can work together, but in a way that does not sacrifice security of an innocent person who wants to protect his or her own financial data, private information and health information. Thank you very much. [applause] john thank you. That concludes round one of the debate. Now we move on to round two. The debaters take questions from me. They can address each other directly or they can take questions from you, our Live Audience in San Francisco. Have two teams arguing for and against this motion, Tech Companies should be required to help Law Enforcement execute search warrants. You have been arguing the law and history is clear, there is an obligation help Law Enforcement, especially if you have the unique ability to offer that help. You cannot say no, but within reasonable bounds, reasonableness is to be decided by the courts. They emphasize those boundaries are there. However, they point out that there is no Silicon Valley exception to that rule, making reference to the position that apple took in the case with the fbi that paraphrasing, apple said that we can but we wont. They say like a landlord with a master key, at the scene of a crime, they need to turnover the key. The other side is arguing that strong encryption and encryption is, to a significant degree, the crux of the matter as this issue moves forward. Strong encryption is the best defense against cyber attack. You cannot build a backdoor that only works for the good guys. They are also arguing that there are plenty of other ways for Law Enforcement to use data that is already available to them through search warrants that are not resisted by Tech Companies. They are saying the world will not go dark just because the fbi cannot get its hands on that master key. I want to stipulate that both teams recognize that Technology Companies have an obligation and have been meeting the obligation to hand over various kinds of data. They have been doing it a long time, particularly metadata, information in the cloud, and etc. We are here, whether a team needs to defend encryption or not, we are here in light of where this challenge has moved, which is into a world where, as illustrated by the appliques, apple case, the question of whether to help Law Enforcement is in contention. I want to go first to the team arguing against the motion. Catherine your opponents are , basically saying that if a company has a unique ability to help, there is an obligation, a citizens obligation to do what needs to be done to turn the key in the lock. What is your response . Catherine it is not an unlimited obligation. This came up in the apple case, where you have to give reasonable assistance. The real question was, at what point did it become an undue burden, what Law Enforcement is asking a company to do . Apple maintained that being required to, for example, create a master key would be an undue burden. Relying on a lot of the security arguments we talked about earlier. The ability to protect data if they had is key, which would then be the target the type of thing targeted by others. John what about the point that when there is a unique ability, that changes the standard . When there is only one agent that can help Law Enforcement, i think that is what he was implying by unique ability that , it changes the formula somewhat . I dont think it changes the formula. I think ultimately it comes down to burdensomeness. That still is in play. The capacity to help the certainly relevant but it does not mean they have to do everything at all. The issue was not burdensomeness in the sense it will be burdensome on the company. The argument they made was to create a master key essentially disables an operating system that shuts down after you try to , break it, it would compromise not just a phone, but all of the operating systems for all phones. Therefore, if somebody got hold of that capability, it would not just be a single phone broken, it would be everyones phone. That was the burden they were worried about. Stewart baker your response. , i feel the need to challenge the moderator as well as the other side, i apologize. Both of you and the other side suggested that no one is arguing that there is no obligation to help in these circumstances. But in fact, when i was preparing for this, i talked to a Manhattan District Attorney who told me the following story. He said, you know, we used to iphone 4 to apple and they had every ability in the world to decrypt that. Brought them in order, they brought them the phone, they give us the information on the film. We broke a lot of cases. Then one day, around the time fbi versus apple was heating up, they called and said, take back your phones. We are out of the business of providing assistance to Law Enforcement. They said was changed . They said basically, our minds have changed your we will not do it anymore. We still can, we choose not to. That is cold. Defying the obligation to help when you can. That is what we do need to say yes, companies are required to assist Law Enforcement when they can. That is my view of what the motion is, and it is not something that goes without saying in Silicon Valley because at least apple believes they can just decide for Public Relations reasons or because it does not fit their litigation strategy to stop providing help they can provide. John john . John i will take up the question of encryption. I think there is also a claim that encryption will make all of our data safe, and i dont think that is the case. I think that is overclaiming what technology can do. People mentioned John Podestas email being attacked by maybe the russians, who knows. How did they hack in . Did they break the strong encryption . Fishing think it is password turned out to be password. The other thing i would say about encryption is yes, government was asking apple to help it identifies a way to get into the phone itself. There are flaws and all of the operating systems, ways for people to hack in to samsung, over android phones or apple phones. I have to download a patch every other day it seems like. You repair the flaw. I think when mike says that to break all of the products simultaneously, i dont think that is accurate. A government is asking apple to help identify a way to get into this phone, held by someone who carried out a terrorist attack, and then obviously you can fix it after. It is not like youre going to publish the flaw and say, come on an intake John Podestas secret emails and 99 his password is password. John what i want to do moving forward is alternate voices from opposite ends of the stage. Michael, you took the initiative and turned your site into a double so i give them a double. But i would like to make it single. Which of you would like to respond . I do think it is important to understand what was at stake in the fbi case. First, let me point out they ultimately hired a company that managed to circumvent the operating system feature and discovered there was nothing of particular relevance on the phone. The also got from apple in compliance with the order all the stuff backed up in the cloud. The issue that was presented was, do you find a way to essentially create a vulnerability or a workaround that feature of the operating system . As stewart kind of points out, cyrus vance had stacked up a few hundred requests to have phones broken with that system. The reality is that once the vulnerability was created, it was going to be in constant demand for breaking things in the future. You might think, that is ok, because they could keep the vulnerability hidden and protected so the bad guy cannot get it. My exhibit a for that is wannacry. Shadow workers posted a vulnerability of microsoft systems and they shut down the National Health service. Even the u. S. Government cannot protect some of the tools and exploits they put together. Stewart baker . Stewart so what mike is sliding over is that what the government asked apple to do was to use a hole, a backdoor that apple had already built into its phones. How many people here got a u2 album you do not want on your phone . [laughter] that was apple using the back door into your phone. Their ability to update your phone anytime they want to run any code they want on your phone. That is a big security hole. We heard everybody on the other side of the debate saying it is a fatal hole, and yet apple uses build it into your phone. They said, on balance, we have to give you security updates, the only way we can do that is if we have this door. On balance, it is better to have the back door and protect it and then to have no back door and no ability to update your phone. It is the ability to update your phone that the fbi had asked apple to use, to make a change in the code that would allow you to continue trying combinations after the first 10. But that wasnt the secret that wouldve gotten somebody into a phone. The secret was how apple guarantees its updates reach you. That backdoor already exists and is being used for apple to do good with security updates and send you things. Catherine i want to get bogged down into a factual discussion, the key thing they wanted that apple did not want to do is create an exploit that would be updated that would change the operating system and remove the future that says after you try a certain number of times, everything gets shut down and you are done. That was the tool they wanted to have created. That tool, once created, what wouldve been something that wouldve been the target for everyone that wanted to break into phones. But think the resolution is broader than that. Again, nobody denies i have never heard anybody in the Tech Community say, we are not going to obey court orders or subpoenas. Has in this case, if they have access to data, they will turn it over. What is really at stake and been debated at the heart of this, is dont configure the systems systems that deny you the ability to access information. That means lets dumb down and lower protections. John i want a question to catherine. He was talking about a balance between privacy versus the need to pursue and gather National Guaranty National Security. Were at a time when the balance, we have to recognize the balance is shifting, the threat of National Security, particularly by terrorist groups that are exploiting this technology, encrypted or not, is on the rise and obviously dangerous. And therefore, we need to do a reconfiguration of the privacy issue. What is your take . Catherine i think that is to misunderstand this particular debate. It is more security versus less security debate. By using strong encryption, you both secure the privacy of the data and you also improve security across the board for vulnerable data for corporations, governments and individuals themselves. John i would say, again, the touchstone is reasonableness. I dont see where the constitution says it is up to apple to decide what is reasonable. It is up to us through our government to decide what the that reasonable balance is between privacy and having information to try to increase security of our country. I still think i hear the argument that stewart was arguing against, the idea that Tech Companies are somehow different. That they can willingly and intentionally design their systems to make it impossible for them to comply with these legal requests for information. I think everyone should be potentially subject. That is why we have a government and courts. I would much rather have a judge in washington, d. C. , or Congress Pass legislation making that balance, rather than let apple, facebook or google or samsung in korea decide the balance between security and privacy ought to be. John your opponent is saying it is the privacy and security issue that is of the real issue here is she is saying it is security versus more security. Her argument is for even greater security, which i think her implication is it would make it even more difficult for the government to get access. John that is possible. It is possible the consequence of more encryption is better security for our country. I just of why apple gets to decide that for the United States. I think if that is really a consequence of increasing encryption, our government should make that call. If it really is anything our government can do to increase National Security with no cost to anyone, it should do it and shouldve done it after 9 11. Tradeoffs exist in everything. There is no kind of policy we can have more of all the good stuff and no cost in bad stuff. Everything is a tradeoff. My question is, who determines the balance . It should not be Tech Companies. I dont disagree with you, the government should pass a law. That is a debate. The question about the resolution is, should the government pass a law that mandates Tech Companies or anybody else cannot configure products in such a way that will not allow you to comply with a court order to turn over information . And if the decision is you cant configure your products you are , going to wind up, i think this is an unwise decision youre , going to hurt the security of everybody else that is innocent. That is not the subject of the subpoena. It would be as if the government were to pass a law and say, you should not be able to delete any emails ever that you generate or you should not be able to use an application where the message disappears after it is red or , you should not be able to turn your phone off. You should keep it on to record everything you say all the time. That would make it very easy for Law Enforcement, when they targeted you, to find evidence against you. But it would also mean everybody else will be Walking Around being their own big brother. That would have privacy and security implications. John i also want to take that point that there is greater encryption of power for the sake of everybodys security. That there should be more. Again, that would imply less access for the government. I dont think so. I want to go back to the point that apple has a backdoor into our phones. They have balanced the value of having the backdoor john why dont you think so . They balance. They say, well, we give our customers more security make us a more Profitable Company in we can give them u2 albums. What they left out of the balance was the balance of all of us who suffer from crime. That is not on their balance sheet, and they did not take into account. What i am arguing is we need to take into account the consequences of encryption in deciding whether there are to be there ought to be access to the phone. And just as apple made the conclusion that we are better off on balance with a backdoor for them, but a very well protected backdoor, we should come to the conclusion that the backdoor Something Like it should be used to protect the rest of us and not just the profits of apple. John catherine . Catherine i dont think any of us disagree that we want to help people who are victims of crimes. The question is what is the best way to do that . The consensus of tech experts is that if you create these backdoors, you will increase the vulnerability of people across the board. And given the fact that the vast majority of people are innocent and we all have Sensitive Data stored on these systems, a backdoor is the wrong way to go. Can i just ask one question . If the consensus of everyone in the Tech Community is backdoors are a bad idea, why does apple have a backdoor . Why does microsoft give us automatic updates we cannot turn down . They have built a backdoor in. I am not a Computer Scientist to i am relying on people who have made this point. None of us on the stage of Computer Scientists, but their considered view is that by installing a backdoor that would allow you to override encryption, you will make the data less secure. They dont overwrite encryption. Im not worried about that guys taking my u2 album. [laughter] pleas. The backdoors we are talking about and what is being suggested is the back door that allows you to decrypt something encrypted. Im sorry. Apple can put anything on your phone to run anywhere, and make it do anything. You can record everything you do. That is a backdoor. If you have an encrypted app, and you have the key and the sender has the key, period. These apps are designed exactly so that only two people, the sender and recipient, can get it. That is the issue cyrus fans once changed. He wants to have the government or some meals have a second key or a vulnerability. That is not our view. Our view is Tech Companies should help with again. Apple has a backdoor they should use to help. If you have built a product that does not have a backdoor, nobody is saying you have to help, because you cant. John i want to go back to your Opening Statement and citing the Fourth Amendment. To understand where the value of reasonableness are your , opponents are arguing that the request to apple and we are using apple as an illustration , we are not really litigating the apple case, but they request that Tech Companies image essentially assist the feds in busting their encryption is unreasonable. In the end, we should recognize it is the israelis that are good at this good we couldnt do it ourselves. We cannot do it ourselves. Is it unreasonable . Again, reasonableness, there is no formula. Lets make you a judge. God, i think the senate would actually shut down and go on strike if i was nominated, which you should do. Then it will shut down. But then, who is going to oversee the impeachment trial . I think if you are a judge and you look at the games to our itnses to our security is going to get worse not , better. People say as we encounter more battlefield successes on the ground and we start to eliminate this caliphate, isis will try to send more people abroad and encourage more people to carry out the kinds of attacks we have been seeing in paris, london, and also in the United States. How do you balance against the law of privacy . I dont think there is going to admit there is no loss of privacy. Would you be on the issue of apple to crack security . The risk is to apples Business Model. Number two, it is the risk that the crack would get out to that guys. I dont have a problem with asking apple to do that, or the government compelling apple to do that. Given the circumstances of what happened in San Bernardino where youre trying to track down how come . This guy, apparently, we thought i wasnt in the government. The government thought there would be information on his phone that when lead to a broader conspiracy. Mikes right, it turned out it did not. But you dont know that beforehand. And thats an important you have to put yourself in the position of the people who are trying to protect their country at the time the are doing it. We dont know how big the conspiracy was. I think its going to become a bigger and broader problem, these series of attacks. The loss of privacy i think, on the other hand, is up to us as voters to decide. Again, i dont think we should say, oh, apple gets to decide whether the loss of privacy john donvan let me take let me take your justification for your position to Catherine Crump and how do you respond to everything that you just heard john say . We have not heard from you in a bit. I want to hear from you, catherine. Actually, neither of you have to answer. [applause] [laughter] Catherine Crump i think that the encryption, with users controlling the key, means that users are in control of their own data. It juxtaposes them between the companies and others. And overriding that creates security problems. John donvan but hes saying johns saying life and death. Life and death just trumps it all. Im going to change that word. [laughter] john yoo i never use the word trump. John donvan yeah. John yoo [unintelligible] will never its like to play bridge. John donvan the life and death issue is decisive and it in this case. Catherine crump and no one is denying that it can be a serious cost to Law Enforcement not to be able to access the content of someones phone. The question is, how do you balance that cost against the cost of not having encryption, and particularly in an era where Law Enforcement has lots of other information thats available to you. You every time you walk around the city, youre picked up on myriad surveillance cameras. Encryption doesnt change that. Automatic license plate readers blanket the streets. Encryption doesnt change that. Even when you cant access the content of communications, you will often be able to identify meta data about the communication, who sent the email, what time the phone calls took place. And many Law Enforcement and National Security officials believe that that meta data can actually be whats really important to solving crimes. John donvan so, interesting that opponents are saying, Stewart Baker, that you dont really need that. Theres too much other information yielding too much information, and also, as Michael Chertoff pointed out, when the feds actually finally cracked the apple phone, there was apparently nothing on it. So whats your response to that . You would be overstating the Stewart Baker theres never a guarantee when you go into a phone that youre going to find the evidence youre hoping for. But on average, you do. You know, the argument is sort of boiled down to, well, its a great time to be a cop because there is so much data. Technology is making life easier for you. And in some ways, thats true, but you know, technology is making life great for the criminals too. Prior to 2016, no one imagined that the russians could change the outcome of an election just by sitting in moscow and having fun with the files that they stole, or that isis could recruit teenagers in minneapolis without ever coming into the United States to carry out attacks. Technology is transforming crime in the same way its transforming crimebusting, but its not clear that on balance Law Enforcement ends up better. And when we can see a real criminal Law Enforcement problem arising from new technology, of course we ought to consider regulating it. I stress this is not the argument we have to make to win this. All we have to say is they have an obligation to help, and they are not doing it. John donvan id like to go to audience questions now. The way that works is if you just razor and, we have people Walking Around with microphones and they will come find you. I call on you, you can take the microphone and hold it about as far from your mouth is my mike is for me. Me. Ic is from make sure it is a question. Right here behind the bars, youre wearing a white shirt, if you can stand up, a microphone will come down from here, right on this side. Down in the front, please. On that side . C my misunderstanding. I will let you go first duty your aggressive new to grab the microphone. I am a lawyer. What do you expect . John whats your name, sir . Stephen maine, resident of work in San Francisco, resident marin county. Isnt the core issue of the Fourth Amendment the protection of the expectation of confidentiality and the right of privacy, right . John donvan great question. Isnt that the core . John donvan i think thats a challenge to john yoos side, so id like to take it to john yoo. John yoo yeah, im happy to hide behind the Supreme Court on this one. They dont say that the Fourth Amendment itself puts that value above all others. It says you balance it. You are quite right. The privacy interest, which we actually didnt talk about that much about the laws, so thanks for bringing it up, is the privacy is the reasonable expectation of society and privacy. And it could be phone calls, written letters, whatever. But you always balance that against security, right . I mean the Supreme Courts been very clear that we have to balance the two values. Its hard to actually figure out how do we measure what societys reasonable expectation of privacy is, and thats why when weve had this technological changes in the past with the telegraph, the telephones, money transfers, ultimately weve asked congress to step in and pass a law and make a judgment. In the beginning the courts have done it, eventually congress. And in no case did our elected representatives or any of the judges say privacy i was going to say trumps every privacy trumps all other values. Its whats reasonable to us as a society to balance the two. John donvan so i want to let Michael Chertoff actually follow up, if hed like to, or catherine, if youd like to. Catherine. Catherine crump yeah, well, i think we agree about what the applicable standard is, right . Its a balance between an individuals expectation of privacy and then the Public Safety means on the other side. I think we just disagree about how that comes out in this particular case. I want to move on to another question. That was pretty aggressive, getting that followup. [laughter] down near the front row here. I think he went to berkeley law. We train him in that way. My names raphael. Im actually going to berkeley law. [laughter] my question is directed to the panel against. You mentioned the user has the key, but in times of Artificial Intelligence there is no way the tech company or any companies are giving away the key because it is updating itself in constantly learning from the content being encrypted. In essence its not a cooking itself. Can you maintain the Tech Companies are throwing away the key in the age of Artificial Intelligence . Can you rephrase it so it goes to the issue of Tech Companies should help Law Enforcement . Its you want to take one more shot at it . Essentially youre saying , that Tech Companies dont have the ability to help because the because the datas encrypted and the user has the key. What im saying is, does the Company Still have the key because of Artificial Intelligence . To illustrate that, gmail now allows you to auto reply. But that is based on your content. Can you say that Tech Companies will do not have the key . Michael chertoff yeah. So, some companies do keep a key or some enterprises do keep a duplicate key because they want their employees, for example they want to be able to see what their employees are doing. No one is arguing on our side that Tech Companies should disobey court orders. If you have the capability if you have a key, a duplicate key, and a Court Ordered you to turn it over, game over. You turn it over. The question in the resolution is, is there an obligation to help . Meaning, do you have to configure your system in such a way that youll always have that duplicate key . Some companies dont maintain the duplicate key. And in that instance, they cant comply. And what the resolution would if congress were to adopt the principle in the resolution, congress would say, oh, when you design encryption, you must always have a duplicate key or a backdoor. They tried to do that about 20 years ago with respect to a something we call a chipper clip. And it kind of failed because there were problems with the way they were being executed in terms of being vulnerable. So, no ones arguing, dont comply with an order if you can. What were arguing is youre not obliged to arrange your life so its easy for the government to get a court order to have you turn this over. John donvan Stewart Baker to respond . Stewart baker so, i you made a good point, that for some companies, having that data is so important that they discourage encryption. Their Business Model is such they want the date. They dont really want you to encrypt it. And so, they make choices that are disincentivizing encryption. Apple doesnt live off the data, and they have created a market niche for themselves that says, come to us. We dont use your data. And theres a perfectly good argument that they were using the San Bernardino case as an exercise in free marketing, to show that they were the privacy protectors and that google and their other competitors are not. I think, at the end of the day, though, the question is, is anybody here comfortable saying, were going to trust our privacy and our security to the marketing and the technological profitdriven decisions of the Tech Companies . Does anybody think they have our interests at heart, and our interests not just selling us stuff, but keeping us safe . I just dont believe it, and i dont think we should rely on them to make that call. Catherine crump so, i think your comments, though, raise an interesting point, which is what are the market incentives of Tech Companies . And for a lot of purposes, Tech Companies are not going to want to have data encrypted. So, for example, your Gmail Account isnt encrypted because youre going to want certain functionalities, and Certain Companies are going to want to be able to access the data in order to sell you advertisements, for example. So, i think you need to think about the scope of the encryption problem as being limited because there are a lot of market incentives on the other side that are going to limit the use of this tool. John yoo i think this raises, actually, an interesting point goes back to the first i find it actually strange, as a society were more than happy to surrender lots of privacy to john yoo i think this raises, companies to mine our emails, and then to pop up weird ads about things that they think i want to buy, places ive been. I think when we decide what action only reasonable, are we going to let Tech Companies not only Design Systems that use Artificial Intelligence to make them unbreakable, but then also just say, yeah, were not going to help you try to figure out a way to defeat it in the next crisis . As a society, i find it very likely were going to say, the government should at least have the same right to mine that data. Look, as were giving all these companies already. John donvan i want to remind you that we are in the question and answer section of this intelligence squared u. S. Debate. Im john donvan, your host. We have four debaters, two teams of two, debating this motion. Tech companies should be required to help Law Enforcement execute search warrants to access Customer Data. Going back to audience questions. Maam in the red sweater, if you could stand up. Hi. My name is kate conger. My question is about the life and death issue that you raised. Earlier you were talking about how Law Enforcement needs access to encrypted messages to save lives. And im wondering how you balance those lives with the lives of our service men and women overseas whose locations are protected by encryption how you balance those lives against the lives of victims of intimate Partner Violence who might be hiding their information, their location from their spouse via encryption. Why are the lives of terror victims worth more than the lives of service men and women of women who are being killed by their partners . John donvan and your question is directed to . Stewart . Would you like to take that . [laughter] john donvan okay, stewart. Yeah, no, first name basis. Stewart baker yes. [laughter] Stewart Baker so no one is arguing that what we want is completely insecure phones that give away data that can get people killed. As i said, apple has built the technology that allows them to modify phones one at a time if necessary. And they have protected that successfully. And that means that the data that theyve protected has not been given away to lead the lead to deaths of innocents. But they could use that technology to protect innocents, and theyre not doing it. And in my view, they should. John donvan other side like to respond . Michael chertoff you know, we could go around and around arguing particular facts in the case. I think what theyve wanted apple to do a modification that would ultimately, if it got out, affected all phones. John donvan i just want to say that thats certainly the way the argue apple presented let michael finish. Michael chertoff but were not on trial. We dont have evidence here. So lets take the broader proposition. If apple didnt add u2 music to your phone, i think your comment is dead right, exactly right. There is Real Security value to encryption. And if you require companies that have encryption without u2 updates to have a back door, you would weaken that encryption. Thats what all the engineers say. And that means if somebody if a bad guy either discovered the vulnerability or got ahold of the exploit, they would then have the ability to compromise the safety of the people you are describing. And if you said, well, thats okay, the government can protect it, i just have one word, wannacry. Apparently, as reported in the press, the government wasnt so good at protecting the exploit based on a generally available vulnerability, and hospitals were shut down, and there was a global impact. And thats exactly the kind of thing you dont want to do. John yoo can i jump in . John donvan yes, please do. [applause] john yoo two points. Weve heard now this debate about whether its apples own back door that is at risk or the magic of getting rid of the limits on how many times you can try to guess a password before the machine wipes out its data. Well, you know, if youve done any coding at all, you know that the wipeout of the data has theres a line in there that says, after x tries, wipe the data. And if you went in and change the 10 to 1 million, you would have done what the government asked. That is not a secret. That is not hard. There is nothing that protects you against that change being made other than apples secret which is how to get the phone to accept the code change that it wants. And theres no requirement to there was no argument by the fbi that the secret for how to do that should be given to the United States government to protect in some database that was subject to a leak. Apple could have kept that secret and just fixed the phone so that it didnt wipe out the data after 10 tries. Thats all they had to do, and they chose not to do it. John donvan man in the light blue shirt because i saw you shaking your head during stewarts comment. But i dont want you to argue with stewart. I want you to ask a question. If you could stand up and tell us your name, please. Well, i heard that john donvan whats your name . Walter. Im a former software engineer. I work for a Legal Department at a big tech company. And i too will be attending berkeley law. John donvan yes [laughter] youre all going to take catherines classes then, you know. You dont want to read Alexander Hamilton with me, do they . Well, professor, i wanted to go back to a point you made a little earlier about how cryptography encryption is not a panacea. And youre absolutely right. The general consensus in Computer Security circles is that theres always another flaw. And in fact, the apple and fbi thing was their fight was mooted when the fbi found another way into the phone without apples help. John donvan i need you to go to a question now. So because there are more flaws out there, doesnt that put the burden back on Law Enforcement rather than asking Tech Companies to help. John donvan id like to let this side answer first, and then i would like to hear the other sides response to that. John yoo. John yoo im not sure exactly what the how to answer the question. I think theres a false choice here thats being presented by our worthy and handsome and attractive opponents. And thats theres a choice between letting the government have access and i think you heard in the last question and complete vulnerability. I dont think thats true. I think its very much as you describe. There are these programs and operating systems, and then there are flaws, and then we correct them. And sometimes we can use the flaws to the societys advantage, and then we correct them. Its not the case you know, some people often use this analogy of locks on doors. And ive heard it said, oh, what youre asking apple to do is to change the locks of no one can have locks on their doors. I dont think thats really whats going on based on what i understand about im not a Computer Scientist, but i did have a trs80 back in the early 1980s, late 1970s. I bet very people here can make that same claim. They had a radio shack john donovan i can. John yoo computer as a kid. Male speaker oh, you have so dated yourself. Probably liked katrina and the waves, too, as his favorite band. John yoo but the point is like, right, that its not a choice that if you help the government all of a sudden everybodys data is suddenly visible. Then i think we use, you know, adaption and Computer Scientists will fix the flaw and the locks are restored. All were asking about is to say to the locksmith, come to this house. Please open this lock. Were not asking you to take all the locks off all the doors. John donvan Catherine Crump. Catherine crump yeah, i think your point is a good one. Encryption, while it may be the best tool we have available often isnt perfect. The apple case illustrated that. They were able to get in using a vulnerability that they purchased. There will continue to be vulnerabilities. And particularly in highprofile, highvalue investigations, they may continue to be used. John donvan another question . Right down front, sir. A mics going to come for you. Just one second. Male speaker now, you realize you just called on the former chief justice of the state of california. So whatever he says im going to agree with it. [laughter] male speaker im asking john donvan please tell us your name. Male speaker as a layperson. Ronald george. John donvan thank you. Male speaker i just wonder whether, in weighing privacy interests against security interests if congress, in considering a law requiring that such help be provided, were to be presented with credible evidence that there were plans to import a Nuclear Device into the United States whether that would change the position that the no side has, that kind of substantial showing, or whether you would still adhere to the same position. John donvan Michael Chertoff. Michael chertoff well, you know, i think and the position we have, again, is that the companies have to comply with the law and their rules. The issue is when a companys capabilities are configured in such a way that they just dont have access to the information, thats going to frustrate Law Enforcement. If Law Enforcement can figure out its own way to get that, god bless them. But the real challenge presented here, and the argument that people in congress, some of them have made is, you should prevent Tech Companies from organizing themselves in such a way that they dont have access to all the information when they are required to turn it over. So lets pick something a little less esoteric in encryption. Then encryption. There are applications now, messaging applications, which ones youve read the message, it disappears. And should the government be able to say, wait a second, terrorists could be communicating on when that shipment of Nuclear Materials coming in and the message is going to disappear. Were never going to know what was said. So lets make every company require that all those messages, although they appear to disappear, they actually get stored. And that would apply to everybody because you dont congress doesnt pass a law knowing who a particular terrorist is, the law is generally applicable. I would argue two things that it would be inappropriate to pass a law like that because, at some point, you might really need to get a message that otherwise wouldnt be saved. But i would also tell you, based on my experience, going back to a period after 9 11, the kind of data that is available now that is turned over by the Tech Companies and is generated by the Tech Companies precisely because they are business people, makes the kind of stuff we got in 2001 look like childs play. It would have been a dream to have the kind of data thats available now back 10 years ago when we were responding to 9 11. So if you look at Technology Development as to whether net net has been good for security, i will tell you it has dramatically tipped the balance in favor of security. John donvan other side like to answer that . Stewart baker. Stewart baker yeah, very briefly. I think that example shows that there are times when we simply will not leave the decision to the companies. And if you believe that, if you thought there was a phone that had data about the importation of a Nuclear Device into the United States, no one would be saying, oh, well, its apple choice about whether theyre going to use their backdoor to provide access. We would say this is a choice that ought to be made by society as a whole through our elected representatives. I and if you believe that, then i think the answer to the question is, yes, there are times when companies should be required to help Law Enforcement. John yoo also, we would help hope American Companies would willingly try to help in such a situation, shouldnt need the compulsion of the law. What worries us, i think, is this growing atmosphere that its okay for Tech Companies to say no, were not going to help the government even in a scale of a threat as high as the one youre proposing, mr. Chief justice. John donvan maam on the aisle, there. If you could stand up, theyll be able to see you for the microphone. Female speaker hi, my names audrey. I am a genetic counselor, actually, so i work in genetic testing. This is a question for john or jon stewart, an agnostic to , which one of you answers the question. The cost of genetic testing has gotten down because basically dropped dramatically, and theres a real philosophy that democratizing the ability of people to have access to the information really requires the Tech Companies. Its a huge amount of data, and that data needs to get stored and that data needs to get analyzed. As an individual out there who just wants to understand what is my family history, what is research for cancer, that type of thing our abilities right now as Tech Companies to access this information is incredibly powerful. Given that stance, i think the future i think you need to get to the question. Female speaker sorry. My question would be that do you think there should be some kind of backdoor key . Should there be something set up for genetic to store the Genetic Information where the Companies Need to make it acceptable to Law Enforcement or accessible to Law Enforcement or is there a case where thats something thats actually going to be useful, where it makes sense to compel a company to reveal that type of information, where theyre not really making a profit off of that type of backdoor . John yoo so ill answer just because my brother is in this industry, too. So it seems to me that weve already made a choice about the privacy of genetic data not an exact hypothetical you have, but dna testing to track down crimes. You could have had a regime or a world where you could have we could have said the government is not allowed to know your dna sequence. It cannot do dna testing. Thats part of your right to privacy, your individual right, and that would be very similar to your idea. And if were going to if im going to hire a Genetic Testing Company to sequence my code, the government can never look at that either. I mean, companies could take that position. But we dont have that view, right . We are actually expanding quite broadly the use of dna testing to help us, you know, solve crimes. And, you know, its not just its not just the privacy you know, youre losing a little bit of privacy by letting the government do that, but we are also protecting victims. Were solving a lot of crimes. Were also proving that some people who are convicted were actually innocent and those people are being released from jail. I would just say as a society weve already made the judgment , youre asking about, that its reasonable in certain circumstances for the government to have access to your dna testing in order to solve a crime. I do not think there is a point of disagreement here. It sounds like in your example, the company itself can access the data. Companystance, the capable of accessing the data needs to comply with any lawful process the government uses to get the data. This focuses on circumstances in which the data is protected even from the companies. That concludes round two of this intelligence where u. S. Debate square u. S. Debate. [applause] now to round three, our closing statements by each debater in turn. Baker,g first, Stewart Stewart . Baker, former assistant director for policy at Homeland Security. For those of you who come back, i should introduce you to a concept i learned about a conference yesterday, which is the israeli question which is a speech followed by the words dont you agree . [laughter] Stewart Baker i was thinking about this issue and researching it, and i came across a case with a woman named brittany mills who was who answered her door one day and was shot dead at point blank range. There are no the police know she knew the person she opened the door for. They know nothing else. They do know she had an iphone, that she kept a diary on it. Her mother says that she was careful to keep those records. Apple is not prepared to provide any assistance in finding out whats on that phone. I that cant be right. Tim cook has given many speeches about how companies have values because people have values and apple has values. And they care about the environment, and they work hard even sacrifice profits because of their concern for the environment. I think the message i would want to send to them out of this debate is they need to have a concern for the brittany mills of the world as well. That privacy they were providing is not doing her any good, and she never wanted this kind of privacy. And so, i would ask that you vote to say yes, companies can be required to help Law Enforcement to execute search warrants. Thank you. [applause] john donvan thank you, Stewart Baker. [applause] john donovan and here making her closing statement against the mother, Catherine Crump, acting director of the samuelsson Law Technology and Public Policy clinic at berkeley law. Catherine crump we all want to help the berkeley brittany millses of the world. But the question here is where is the greater good . Are we going to make everyones communication insecure in order to create a backdoor . And ill just tell one story which is that 20 years ago, the United States, in a law called calia decided and most other countries decided to create a requirement that there would be a backdoor for telephone switches. About 10 years ago, someone illegally wiretapped the phones of many people in greece using one of these backdoors. It included the prime minister. It included the mayor of athens, and so on and so forth. So, when you create these backdoors, they are vulnerable. They can be abused. And the better choice is to try to secure everyones data across the board. [applause] john donvan thank you, Catherine Crump. [applause] john donovan and now making his closing statement in support of the motion, john yoo, law professor at uc berkeley. John yoo so, unlike my other panelists, i dont have a good story. Im not irish, im korean. Were not good at stories. So, i have no witty thing thats going to sum it all up, the way that jfk or tip oneill could have. I wish Stewart Baker he has a quarry and mom. He cannot go home this way ean mom. Kor he cannot go home this way. John yoo that is true. Please, please vote for us. My mom is asking you [laughter] actually, i wanted to go back to something jeff rosen said when he started this whole thing. And he said he always asked himself is what brandeis would do. And i actually always ask myself, what would hamilton do . And the reason i ask is because hamilton is so cool and hip right now. They even make rap music about him. Im not rich enough to have the pull to get actually in to see the show, but i hear hamilton even talks in rap. This is amazing to me. Ive been studying hamilton for 25 years and i love the guy. And i think what hamilton said is something we should come back to, because hamilton was involved with drafting the constitution. He was the first treasury secretary. You all know this because all of you have seen the play. Hamilton said the primary mission the purpose of government is the protection of the community from attacks. He didnt say it trumped everything. It doesnt mean that we have to live in a world with no protections, or no security, or no privacy from for our data. But it means that ultimately, when it comes down to it, and this is the question, i think, that chief Justice George properly raised is we all have to balance the needs of the government against our privacy rights. And as a society, we can sometimes and should decide that we want to trade off some amount of privacy for security. Anyone whos telling you that thats a false choice, i think, is not being truthful. Theres always a tradeoff in anything we do, any government policy that we reach. And i think, in this case, all we want to acknowledge in asking you to vote yes for the resolution is that were asking you to acknowledge that the government at some times has a right to protect us that should sometimes, in the right circumstances require us to give , up a small amount of privacy. John donovan thank you john , yoo. [applause] john donovan and finally, making his closing statement against the moment, Michael Chertoff, executive chairman and cofounder of the chertoff group. Michael chertoff well, thanks, everybody. Very stimulating debate and great questions. Look, i know stewart likes to talk a lot about the apple phone case. And were not going to resolve the engineering question about whether what would have been required would have been to create a general vulnerability. But thats not what the resolution is about. The resolution is about whether Tech Companies or anybody for that matter should be required to help do whatever can be done in order to make things accessible to Law Enforcement. Theres no doubt congress can pass a law. Thats not the issue. The question is, would that be wise . And if you apply it in this circumstance, what you see the Resolution Says is, you should have to configure your platforms in such a way that you can always access information when there is a lawful demand to do so. The problem with that is it doesnt create security for everybody. It creates security in some circumstances. If you look at what goes on around our world, if you look at the 80 million stolen from the bank of bangladesh, if you look at the efforts to influence elections in france, if you look at the personal value that is stolen and the 500 million yahoo accounts that were hacked by the russians who got indicted thats 500 million individuals , whose personal information is out there. You realize that if youre leaking encryption or you limit if you weaken encryption o\r or you limit the ability to protect the data, you are putting the security of the many at risk simply because the government would be benefited benefiting in some cases to get access to the data. With all the tools the government has that the Companies Give them, data backed up to the cloud, meta data, locational data, sometimes the government will have to do it the hard way. But in the greater good of security for everybody, that may be the right way. And thats what i would say congress ought to bear in mind when they look at this problem. Thank you very much. John donvan thank you Michael Chertoff. And that concludes round three of this intelligence squared u. S. Debate. [applause] john donovan and now its time to learn which side you feel has argued the best. We want to ask you again to go to the key pads at your seat and vote for a second time. Take a look at the motion. Tech companies should be required to help Law Enforcement execute search warrants to access Customer Data. Push number one if you agree with the motion, the motion the side argued by this team. Push two if you disagree with the motion, this team. Push number three if you became or remain undecided. Ok, and one thing i want to explain about our voting rules we give victory to the team whose numbers have changed the most in Percentage Points between the first and the second vote. So its the different between difference between the first and the second vote as opposed to the absolute vote that determines victory for one team or the other. Itll take about a minute and a half for the results to come in. But while thats happening, i just want to say a couple of things. As i mentioned in the beginning, the goal of intelligence squared u. S. Is to raise the level of Public Discourse and to prove that people with disparate points of view, with real disagreements on principle nevertheless can sit down, exchange ideas, speak to one another civilly, maybe even change each others minds. And i just want to say that the spirit in which these four debaters did that, the game they brought to the stage absolutely lived up to our principles. And i want to thank all of you for what you did. [applause] john donvan i also want to, again, thank the great Jeffrey Rosen for being our partner in this with the National Constitution center. If you havent been to philadelphia, weve done debates there. The center itself is spectacular. But as jeffrey also pointed out, the center goes far beyond philadelphia. Its a national organization. Its getting everywhere. Los angeles is not that far a hop. And so you heard about the program coming up there. But keep an eye on the ncc. Its really going places, and its great to be partner with them. I also want to i want to point out this about intelligence squared u. S. Were u. S. A nonprofit organization. Were a nonprofit organization. We put these debates on, and then we release them for free to the public. As i mentioned, the podcast is out there. The Public Radio Program is out there. Were in a lot of schools. A lot of schools now actually incorporate us as part of the curriculum, particularly in high schools and the upper grades of elementary school, and were very, very proud of that. But i also want to say that we depend enormously on public support to continue that but i also want to say that we depend enormously on public support to continue that mission going. So, if you like what you saw, if you like what you do what we do, wed appreciate it if you could give us some support, and theres a way to do it with your encrypted cell phone right now. [laughter] onvan if you text the word debate to the following number, youll get a link and you can make a contribution. And i know its a cliche, but big or small, they all count. We appreciate them all. And so, that number is 797979, whose secret meaning is absolutely nothing. Its random. But we would greatly, greatly appreciate that. So i will be getting the results, and i have a nonencrypted device here still hope fully someone in the room here so hopefully someone in the room is ahead of me on this. Copy, becausehard somebody hacked into it. Putin wanted to change the outcome of the debate. The winner is la la land. [laughter] [applause] donvan ive got it now. The motion is this Tech Companies should be required to help Law Enforcement execute search warrants to access Customer Data. Before the debate, in polling the Live Audience here in San Francisco, 26 agreed with this motion. 47 were against the motion. 27 were undecided. Those were the first results. One more time ill say this its the difference between the first and the second vote that determines our winner. So, lets look at the second vote. The team arguing for the motion their first vote was 26 percent. Their second vote, 36 . They went up 10 Percentage Points. That is the number to beat. John donvan thats the number to beat. Lets see the team against arguing against the motion. Their first vote was 47 , their second vote was 58 . Stewart baker oh, come on john donvan they got 11 Percentage Points. They just [applause] snuck in. Congratulations to the team arguing against the motion. Our congratulations to them. Thank you from me, john donvan, and intelligence squared u. S. Well see you next time. [applause] i thought if your mom was at the nsa, she could fix that for you. We really have such a pleasure being here in San Francisco. And thank you so much. Find us on our podcast. Make the contribution. Thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2017] Congress Continues its 11 day break from capitol hill today with members at home and traveling. Senator john mccain is leading a bipartisan delegation in afghanistan. Many Congress Members are in their home districts. The representative from new york is that the white bro Fire Department to announce 2. 75 billion 2. 75 billion for flood allegation. Speaking to seniors about how to protect medicare for the future generations, and Brian Fitzpatrick serving up pizza slices there in levittown for the knights of columbus. Returns to capitol hill for legislative work next tuesday. North korea test launched its first intercontinental listing missile yesterday, capable of striking alaska. The National Security council will meet this afternoon to discuss that situation. That is at 43 00 p. M. Eastern and we are planning live coverage here on cspan. That is at 3 00 p. M. Eastern and we are planning live coverage here on cspan. And the panel will look at countries around the world using something similar for charter schools. That coverage starts at 4 00 companionrn on our network, cspan2. Also in prime time here on cspan, arizona Supreme Court justice will talk about the debate between justices on how to interpret the constitution. Here the portion of what you will see. They did warn in the federalist papers that the judiciary could become a very dangerous body if it ever took on the powers of the executive or legislative rinses. It has done so in many instances, it has been a very Dangerous Branch of government. There is a constant battle going on in the judiciary between those who believe that the constitution is any of all an evolving document, and the lookent that judges should out and say really, in our time