Because of course if the government were targeting a particular known u. S. Person for surveillance for criminal prosecution purposes it would need a warrant. Heres how that looks in practice. The government certifies to the fisa court would have no interest in any particular known u. S. Person, clicks the data, then run searches on the data using the names phone numbers and email accounts of particular note u. S. Persons. This is called backdoor searches. The nsa and the set a data privately to thousand of these in 2013. According to the privacy and Civil Liberties Oversight Board the fbi does these routinely. Routinely searches databases containing section seven to data when it investigates americans or even performs assessments which means no factual basis. Warrantless surveillance, warrantless foreign Intelligence Surveillance have absolute become a domestic Law Enforcement tool. I do give anything to add or if you youre seeing this is concerned youre seeing a similar cases as well . I think that is a concern. I think we sort of in how we saidsetthis party we seek to consent to a Large Program Data Collection programs and being used in prosecution and then just other technological trends driving vast collection by local Government Agencies as well because its just not that expensive anymore. I want to get each of the panelists a chance to talk about what they see as the Biggest Challenges Going Forward some going to let them go down the line into the infinite going to open it up to questions, and remind our audience that you can email questions at gmail. Com. We will get through hopefully as any of them as possible probably not all of them. I guess the biggest challenge i see theres a ton of big challenges but the biggest challenge for my perspective who works for lawyers all the time is getting information you can use to reason about some of these things. Theres two challenges. One is knowing what they are doing which is difficult to know, specialist or powerpoint and fisc finds. Those are not what they used to make decisions and help others do that but also, for example just to pick one out off the top my head im working on right now, in terms of information sharing a domestic cybersecurity, its very hard to serve teach lawyers how Network Operations and Network Security works. Its not impossible and were going to do but its the kind of thing where theres a sense of ways of talking of information that we just have really built up over the years and were going to need to invest in so to speak and have like little Network Security for lawyers or Network Security not for dummies will for people and may not be as motor with that. We can do and say things like gee, do want to share that information . The stuff we used to defend ourselves, theres no liability associate, no ecpa stuff that pertains to the. Its hard to sort of talk about that in a way that sort of bridges the technologists lawyer that. Thats one of my big challenges. I see several challenges. I think one of the primary ones is convincing the public of the threat. I think a lot of people think i should also life with google anyway. But theres a big difference in the sticks of sharing all your information with shooting and sharing all your information with the nsa. The potential for abuse when the government collects this much information on everyone is real. But i think its only a matter of time before the potential starts to be realized in ways that people can see and canfield. I think its part of american exceptionalism that people think that their government, our government would never use it smashes guitars against the people in the other comments did all the time and our own government did it for decades. Another challenge is that Technology Just move so quickly and Public Opinion moves more slowly and the law moves even more slowly than that. So by the time the law catches up, they can be sort of de facto too late. So right now we now have an entire intelligence establishment whose central function is to maintain and use the vast databases of information gathered through mass surveillance. Changing this is going to be as such is going to be changing the law at this point is for into the game. Its good to be about breaking down and redefining institutions. There are very powerful institution forces against that kind of change. Were seeing that now. I would say that we have an important case going on right now regarding the u. S. A. Freedom act and the scope of the authorities of u. S. Government to collect metadata information and to target communications of people in the United States better communicate with people overseas. Want the scope of those authorities are how oversight should be conducted, what amount of transfer should be required of the government. But i also think theres a broader debate that weve had trouble focusing on which relates to the scope of authorities that take place outside of the particular statutes that we have. And those are the ones that are most directly impacting trust in technology that is built by u. S. Companies and our ability to sell the technology around the world. I mentioned for the concept of having new rules of the road, and the issues i would flag army of the ones that you see in the Intelligence Review Group report. The initial messaging they came out of the administration focused on the fact that the programs that authorized by 215 and 702 only relate to the purpose of foreign intelligence collection is to focus on people who are not u. S. Persons. And given that the vast majority of used Technology Companies are already selling the biggest part of the market share and certainly the future of the growth is around the world, that gave very little comfort to customers of our companies. And so you see the administration involved some of its messaging. They have put out the 28th document which talks about the rights of Foreign Forces versus u. S. Person to get you see the government taking positions in the litigation to mention before with regard to the ward for data stored outside of the United States that again goes to this issue of trust and impacts the ability of people around the world to lay claim that they believe are best designed to protect their own privacy and to guard against access to Government Agencies. I would say among the recommendations that are in that intelligence review report i pick out an interesting example, the disclosure point and to so some of by the administration there. Michael bennet did a blog laughter that talked about a bias towards disclosing information about vulnerabilities to companies that might be impacted by them. But we still a very little about the operation of this policy. It was a lawsuit by the aclu to gain access to documents that were described how the policy works. That was blocked. Useful not only for americans and for people around the world also for the government to have more information in the Public Domain about what this process is, where in the government decisions are made would give us more certainty about the weighting of the different impacts that go along with decisions like that. And what factors would be used in determining when exceptions are made. Potential is a good story there that they have but i think they continue to be caught up in concerns about what level of disclosure they are willing to make them even around the processes. So i think those are the top challenges that i see. For far too long the government has been able to executive assessment able to engage in extremely aggressive surveillance programs with little public knowledge. I think, and with real harms as a result. I think one of the most striking things was after Edward Snowden revealed the existence of the 250 program which resulted in the mass collection of all americans telephone metadata you can listen to present the policy dont worry its just metadata and business as well as approved it, really fell flat and the reason it fell flat was because there have not been any public debate and the public i think, the jury is still out on how the program is ultimate going to fare but it is at the very least cause a very significant debate. I think thats the broad theme is a lot of the stuff has been going on in secret for too long and it is really come it really damaging consequence. To bring it back since were at the nacdl to make this practical, like it makes it really hard to buy the product suppression motions on behalf of your clients if you dont know what technology is being used. I think the stingray example is the best one of that. Im dismayed that stingrays have been using think for at least a decade. And nonetheless its only been in the last few years the people been aware of how widespread this technology is. And some we are always playing catchup and just that the criminal defense bar has really made Great Strides in front appropriate suppression motions motions in this editor types want to point out one useful resource which is the aclu of Northern California published a report on the use of stingrays but it is geared towards criminal defense attorney speak like you is how you know, heres a you can make a good guess about whether to see the technology was actually used in your case, and then there are some things you can do if you want to try to get criminal discovery about the use of the technology. So i think there are many pressure points point the unthinkable defense attorney have an Important Role to play. I think also im optimistic and im looking at franklin aclu of virginia wants and does but im optimist about what can happen at the local apple. The federal government may be largely bought into this stuff but they weve seen an incredible number of drivers related bills introduced at the state level. Virginia has been active there but seattle and tacoma both has really innovative laws saying to the local Law Enforcement agencies if you want to acquire Surveillance Technology of to come to the city council beforehand and tell us about it because what happens now is because federal Grant Programs make money out of it to local Police Departments, in the City Councils dont learn about it until after the fact those particular bills that they pass unfortunately have some serious flaws became the aclu of Northern California put out a model to think is quite useful. Survey is dedication ordinance which are neutral on the technology but basically city council is trying to reassert some control by saying you have to tell us if youre going to use this technology. And i really am and probably in favor that if i dont want to minimize that the government does have legitimate National Study interests in certain areas, by the time the problem is you know other cities cant even know what the Police Department of doing in criminal cases. I think the secrecy has gone too far. One more point for optimism. To attaboy just heard. I do think that there are a fair number of really important decisions that would seem that have not been challenged by the government. And that the trend in the court is going towards finding more things to be within realm of weasel expectation of privacy of u. S. Citizens. And so when the war shag to seeking out i think is a fair amount of expectation of the can was going to challenge that point and to try to obtain information that was more than 180 days old without a word. We have not seen that happen and over time as google and then followed by pretty much every major provider of email cloudbased services in the country, the demand has been made that he was a Government Produced warrants before contents will be turned over. That is effectively the law of the land even though that is not how the statute is currently written. And even the department of justice has over time conceded the point in testimony before congress that the 180 day rule is arbitrary, doesnt make any sense, should be updated. Weve had difficulty getting that across the finish line in terms of codifying the change, but the jones case again was the principle i think that for many years was accepted that if the government was just observing things are happening on the streets, that automate that through technology would not create additional concerns that would require a warrant. The courts have felt otherwise and do to the riley decision that we heard about before hold not only very interesting points about cell phones themselves and the content of what they hold but theres i believe its in Justice Roberts part of the opinion, a reference to the notion that these devices are connected to the cloud and that that might create additional concerns. But the phones themselves obviously hold so much more information than when the original doctrine was developed that my phone is 64 gigabytes of memory on it and probably exceeds some of the computers that might be in the room. That technology is changing. The law is clearly not keeping pace with the development of the technology, but there are i think positive trends and the courts with regard to the development of for them in the law that we should be very happy about. I would agree with that. The only one point i just want to make is that a think the reason why the government isnt pushing back harder against warshak and against where things are going with the in the continent is because they can can get 95 of what it needs through metadata. Great. I would like to open it up to question. On the note of optimism i encourage folks here to look at pbd 28 which not whether it is real significance. Its an interesting step forward indias government acknowledging the benefits of providing rights to noncitizens in this area as well. Theres a lot to be pessimistic about but theres no sub optimism also. With that are like to invite you up to ask questions because the microphone on both sides of the room. Please ask question to this is not a chance to make speeches. We can talk to our panelists later but please come forward and ask your questions. Another reminder for those who are watching, you can send a question to nacdl questions at gmail. Com and we will answer your questions. Thanks. Norman reamer executive director. Thank you to all of you. Catherine, want to ask you, you ticked off some of the local surveillance capacities that are out there. Can you give us a more comprehensive list of what local Law Enforcement is able to do in terms of collecting data images and all the rest on folks . Thanks. Good to see you, too. Why dont i start off a a brains from accession into the people can jump in automatic license plate readers which can step photographs of every passing car. Local enforcement agencies can install these on a trocar for on highway overpasses. They can also purchase access to large private databases. That are read women who attach these to the cars and go rent snapping photographs and those pictures get put into huge databases. Aerial surveillance is interesting, although i think it is in some sense overhyped so it can be done now. It has a lot of potential manned helicopters are expensive and the many local Law Enforcement agencies of the drones are cheap, right . And the little ones are not pacifists could write up what i think is fascinating is the possibly of persistent aerial surveillance, the idq could fly something over a city or i dont know if you seen these but you can see individuals Walking Around the streets and track cars. I think thats fascinating. Cell phone data can be obtained. Theres location data stretching back for as long as the mobile phone carrier wants to keep it. They can be browsing industry. Taken the records of phone calls people have dialed. Everything you dont social media, this is depressing as i am listing it but am trying to ask oppressive as possible right . Unfortunately we all know of people who share more there than perhaps, perhaps would be wise. Theres a store in maine of a guy who posted his marijuana photographs on facebook but didnt realize a friend of his friend was a cop and then got busted this way. Thats not a great example but theres a lot of data about what people do. If your card has an inboard Navigation System in a be possible to sort of unclear theres one sort of interesting federal Court Decision on this to try to do that and maybe even automate the microphone if thats possible. Theres surveillance in a lot of different locations to what else is on the list . Im going to be more forward thinking and since a lot of this stuff you see put on aerial surveillance platforms has previously existed in the military content. That kind of fun technical toys theyre putting on surveillance, military Surveillance Drones are pretty striking. So things like lidar come you can think of as laser it can see through foliage because of these moves and it is the thing that is not by the guided over all of the time it can tell you whats behind things that look like leaves which can believes or other things. Theres Synthetic Aperture Radar which can look through thin types of materials like your traits into blind and stuff like that. Talk about and theres a title type of things like infrared kinds of stuff but theres also stuff like Spherical Lens surveillance platforms. Sufficed to say that these things can take what we call dick a pixel images on the basis of an entire urban area or rural area or whatever is looking to do to the basically see features from a pretty high Vantage Point at like a foot to an inch or a few centimeter kind of resolution and are very highly time sensitive way. This stuff is some of it is not available to people operating current types of aerial surveillance platforms but its not going to be a whole long time before that is demanded. For whatever reason to use these kinds of context. I would add biometric fingerprint scanners but theres also what can be done with this data. So if aerial surveillance facial recognition technology, fingerprints can be captured from incredibly large distances because the images are so precise that they can blow them up and get your fingerprints so they can identify all these blurs on the be defeated and then rock star i dont think they read about this but the military when it was withdrawing from villages would leave rocks that had cameras in them and that the twentyyear batteries. Why cant i get one of those for my phone . Twentyyear batteries that he could record continuously and feedback to those rocks are now at the border. So you know beware of rocks. Is just incredible. Its anything. And remote biometrics like facial recognition i very, very powerful. Theres think you may not know that are even more powerful. Site face and gait, how you walk walk, the accommodations together are extremely identifiable. Unless youre wearing something that obscures that is often brought about from Yale Law School talking about the kkk intimidating people meant theres a lot of states that have lost the cant wear masks other than hollowing and maybe some of the holidays. To mask your gave to me basically have a ministry of silly walks kind of thing where you have to make sure your silly walk is random enough to where they cant profile your silly walk. I am taking questions and email. We got one who is asking about it being reductive as being equivalent to ongoing content are personally identifiable information. He said theres a broad range of items detailed and accessibility of many meta tagging systems used by carriers, agencies and other collectors, huge range just with different participants participants. The point of the question is isnt there a different degrees of metadata . I want to say absolutely. Thats not a very sorry, its not a very profound statement. You can record metadata about anything. Some of that is not good interesting and not be useful for whatever you want to use for. The trick is in infants that is capable of metadata we know that it is extreme and powerful. For example, a science paper about four weeks ago showed with a large body like 30 million Financial Transactions it was sufficient to identify a single individual by absorbing for transactions of theirs. And by trying, they were able to protect individuals and the data say. Thats not saying he should connect Financial Data to it saying that stephanie to protect a little bit more robustly than you might think it certainly the temperature of this room is a type of metadata does reveal a lot about who is and it specifically it may sort of map onto how much fun were having and other kinds of things. Mike price from the brennan center. I might take you up on your offer. But please phrase your comment in the form of the question. I will. So here it goes. On the metadata versus content issue, eric, youre correct that the current state of the law ecpa, gaza distinctive between content and metadata. But as was hard to tease out metadata can actually be really, really important to deface an fyi to a group of supporters maybe theres not much there in terms of content but you have an entire membership lists list. Or given enough metadata you dont really need content. Content is difficult. It requires sophistication to analyze metadata is easy you can put into an algorithm. And the more metadata that you have it seems like content becomes less and less imports. I think it was the we kill people based on metadata. So the question for the panel is whether the Fourth Amendment compels that distinction or whether thats something that we have grafted onto it and can reverse . Well, as most people here probably know, the Fourth Amendment has been interpreted in different ways at different times in our countries history and has really struggled to keep up with technology and has generally lagged for a very long time. In 1927 the Supreme Court ruled that fares no Fourth Amendment expectation of privacy in a phone call because to wiretap the phone call the government didnt have to intrude on your property in anyway. And it wasnt until 195750 Supreme Court revisited this is that okay, privacy isnt just in your property. Privacy can be in it follows the person not not the property and they could be in a phone call if you go into a phone booth and you close the door. We have seen doctrines, many Fourth Amendment doctrines have changed over time to sort of matched the technology and the challenge for all these Brilliant Minds here is that at this something were trying to do at the brennan center, if you try to figure out approaches to the Fourth Amendment Going Forward. These doctrines, many of them are going to go by the wayside. I truly believe based on the signals weve got from the Supreme Court that a thirdparty doctrine will not last in its current form to that challenge is to find an enduring vision of the Fourth Amendment that is not technologically dependent that when i go by the wayside the next undesignated technology that is really not easy to do but it should be possible and should incorporate metadata where searches the metadata to impinge on abysmal expectation of privacy. Really, really quickly. Whats harder technically to protect metadata can not all metadata but a lot of that is used in a routing key mitigation or something in the middle if you remove that wages would be able to do those communications. I think theres that angle where we got a lot better, were doing good. I was pessimistic last year but we think of last year but with a last year but with a good interesting things coming to the metadata, you get into things like shuffling, an anonymous browsing tool and are certain things you cant do like its hard to realtime voice and be caught at second thing thing because it is bouncing around the world. I dont think, i dont have a copy of the federal think metadata is in the Fourth Amendment. And so but my point there is that the concept change and to think even the concept of what we consider to be metadata has changed over time and will continue to change assemblages of metadata as the jones case indicates may implicate the Fourth Amendment over time. We also have to recognize that there is this element in the test that would use that relates to what people expect and expectations change. This is something that is going to evolve hopefully and i think its one the reasons why its important for the courts to be engaged in the sixth because i dont think theres any hope that a lot much less the constitution is going to move out the pace that we require in order to protect what we need. And i would just add, i agree with everything allies is said about the evolution of the Fourth Amendment and it changing over time i side more with eric on my views about whats likely to happen with a thirdparty doctrine is that im skeptical that the Supreme Court is just going to overrule its prior third party cases but i think it will attempt to limit them and one white that may try to limit them is by making this content not in content metadata distinction. Content Business Record distinction. Im going to read a couple of these but i know his time is winding it. I dont know if you want to just take a few questions and think about to the panel. One is from robert, its for you, too. You mentioned internet geography is a challenge. Aspect is wellknown to the user would further undermine the privacy of users . Theres a question from will carson asking what effect it would have built a thirdparty doctrine have on subpoenas grand jury proceedings, et cetera . Making sure that you cant change things in transit. You can only reach our website via hd to have hd tps. Tps. It has to be secure. Extremely hard to exploit. The reason we do that is because if you dont that we have one little advertiser so they have been working on the multiple in a thirdparty element that is not encrypted, that encrypted, that is an avenue for someone to inject Malicious Software and exploit everyone involved in the conversation. I have a long list of things i could talk about that is probably not a good use of our time. Maybe i should write something to that. Send me an email. We have a longer conversation. On the Constitution Free zone question i want to separate out to concepts. There concepts. There is the idea that the government has extraordinary power not only at the border but some distance and land in order to exercise his border authority. There is a separate government policy for customs and Border Protection in ice in which the government asserts at ports of entry themselves at the border it can search people cell phones and laptops and other Electronic Devices with no suspicion whatsoever that they contain evidence of a Law Violation for information relevant to Service Customs authority, but i have not heard of that particular authority being applied outside of the port of entry itself. There is the caveat that they will take your laptop at the border and transported elsewhere in search it, but they do the physical seizing at the border. From virginia, assuming that the Supreme Court parsley leaves the thirdparty doctrine is place is anyone aware of language that would in effect overall the thirdparty doctrine state constitution . Constitution . And how could you do that . Am not aware of any attempt to do that. I focus on a lot of these issues are national and i dont think is take us addition will protect people from the federal government coming into a. Of intelligence. Thinking about metadata. But it is interesting. At the interesting. At the state level we are seeing low drone zone legislation and all that. I am not aware of any effort to amend the state constitution. I constitution. I suppose it is just easier at the state level. But with regard to that idea of pursuing state bills call we are seeing a a number of states where there are proposals the say obviously they cannot control federal authority, but they say Police Agencies that are part of state or local governments at the state cannot seek to obtain the kind of communications without a warrant. So you could i think in. A fine with regard to the authorities of the state and local Police Agencies their ability to demand various types of data including metadata with warrants. And is to classify one thing, thing, i dont think that the Supreme Court will say no more thirdparty doctrine. I dont think that we will happen. We have strong signals got not just from justice such a mayor concurrence, but in the miley when Justice Roberts was talking about the things that made a cell phone private he was talking about information that was necessarily shared with 3rd parties and clearly there is an implicit recognition that that privacy was there. So i do not see how that doctrine can continue to exist in its current form. I should not say its current form, but in the courts interpretation. I love what is going on at the state level. Virginia and in particular they have been the forefront of a lot of that. I think yeah. Thanks. I think state constitutions are some of the most exciting places to go. Just a little tricky. The state constitution does not mention the thirdparty doctrine. Reject the application and wording but it is interesting, a lot interesting, a lot of state Supreme Courts have rejected elements of an would like to say its an alternative you. Create. Create a workable alternative in the world to the federal regime it could address a lot of the local Law Enforcement issues. Showing it you can have an alternative system that protects what we all consider are legitimate needs is useful, so i have been excited by what i have seen coming out of the state level. Last question. His words. Asking the panel to prognosticate on the likely outcome and significance of city of los angeles versus patel making Hotel Records amenable to Law Enforcement seizure on demand. And the last question, do you see the normative inquiry playing a role in changing the thirdparty doctrine . Are you asking for speculation on the outcome of the case . [laughter] at sea. It is Hotel Records so it is a little tricky in a sense. It is not it is is different from phone records where you can draw very direct inferences about associations easily. That would not be my take for the case that should eventually go to the Supreme Court on the thirdparty records doctrine. I dont know. Honestly, i dont know. I could. I could not predict the outcome. Does anyone want to take the question about implications of rejection . It is hard to get away from normative implications of all this. The idea that there is a normative elements all of this is hard to sustain. That is i think part of the question asked about whether or not it is possible to both modify or reject the thirdparty doctrine also retaining respect for Law Enforcement needs and i want to remind everyone that rejection of a thirdparty doctrine does not mean that the government cant get access to the information. It it just means they need a warrant. But if you come back to the example i gave you before we have separate regulatory obligations with regard to money laundering. In order to prevent money launderi i want to thank the staff for the symposium. I asked around and am quite confident this is the most comprehensive symposium on this topic that has ever been held. Rewarding and a bit concerning. The discussion certainly needs to move forward. The panel the topic of this panel is a good segue from the last panel. We talked about the technology for Surveillance Data content location, the techniques available to the government, devices. This panel will talk about what we can do about it how we challenge the use of these techniques and devices in our cases. Like the last moderator, i am going to not give long introductions because you have the biographies in your material but our panelists senior staff attorney for the freedom frontier administration. Also, if you look at the materials you were given you will see a copy of the champion this months issue. There is an article in your that discusses the riley decision and the steps having to do with that. Counsel for the american Civil Liberties union. Senior fellow at the Cato Institute and Research Professor of law at George Washington University Law school. Only for this panel i propose three general areas of discussion. The panels are not limited but the areas of discussion are what is current law for 4th Amendment Law regarding these issues and where do we think it is going looking at the Court Decisions that have come down today. The corollary to that is does the current analysis under the 4th amendment reasonable expectation of privacy fit the subject matter or is there another way to look at it, perhaps . Another topic is, how do we find out whether this technology is being used . You heard from the last panel efforts have been made by Law Enforcement to keep it secret. How do we determine that it has been used . For instance, instance, in the instance of the stingray device even after it was discovered it was being used Law Enforcement made an effort to keep the details of how the device worked secret. How how do you discover how these devices are used whether they involved a trespass there are arguments to be made. When we look at the right standpoint search or seizure great cases you should be using as a defense attorney. You should be relying on the jones majority opinion. No one quite knows what the trespass there he is. Counterintuitive. Just this week we saw a decision saying that that also applies to an ankle bracelet around the gps monitoring bracelet around a persons ankle and they did that without argument. So on the rights question the trespass argument the jones concurring opinion which departs from traditional understanding collection of evidence is not a search. As another thing you should be using when you have digital evidence collection is a lot of times it is part of a broader effort to collect evidence. That can be argued to create a mosaic which constitute a search. You have the riley case and you should be pushing for riley moments in your cases just it went down on the fact that he went into a phone booth. Read your cases. It is just not the possession right. It was used by somebody else which is a violation of that right to exclude. Very often seizures and searches are mixed. They were look at the other side. This is a seizure and this is a search. Searching can happen in a standalone way. The the case where Law Enforcement used a thermal in a thermal imager to access the heat profile on the side of a building. It it made things that were otherwise imperceptible perceptible. Literally a thermal imager takes heat waves imperceptible to the human eye and moves them to into a different place in the spectrum so that you can he so that you can see the heat as visible. In ordinary life no one can see what the heat on the side of the building is but it made visible what was there to four and visible. That was a search. There are alternatives. Or they really looking hard . You could call that a search but the more granular and scientific about taking things from imperceptible to perceptible is when you get a search. Third question is the protected by the 4th amendment . That is pretty easily administered. Things people carry. And then the question is was it or was it not reasonable. And this is where the judging happens. And the judging has to happen but then the question is focused in the right place on whether or not the government was being reasonable when it searched. It examines whether the individual was being reasonable and expecting privacy and that is not what the terms of the 4th amendment call for. To apply this statutory way of working with the 4th amendment you have to understand how the Technology Works. Let me walk you through technology that we have encountered to tell you how it applies. I we will i we will start with mail. Paper is a handy form factor for cellulose lightweight a terrific those rnc of the and we use it to put hieroglyphs into a fixed form letters numbers and symbols. In the right order they convey our thoughts feelings, emotions, etc. When when folded and concealed in an envelope the opacity makes it imperceptible to others that have not access the inside of the mail. And what we have found is that when we use these physical characteristics of paper to conceal information the information gets 4th amendment protection. So in ex parte jackson was discussed the constitutional difference between sealed mail and opened mail like newspapers and flyers the court said letters and concealed packages are as fully guarded from examination and expection except to their outward form and wait as if they were obtained by the parties forwarding them in their own domiciles. So using the opacity of paper to conceal information gives you constitutional protection in the matter of physics in the 1st instance backed by law. Fastforward from 1877 to 1929 in the olmstead decision, onset majority got it wrong but the dissents were the interesting ones. Brandeis said there is a wonderful right to be let alone which is maybe a little too broad and quite hard to administer. Look to justice butler. He argued the contract between Telephone Companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between him they pass. Sort of a statement of property rights. The the exclusive use of the wire blocks to the person served by it. Tapping and listening literally constitutes a search for evidence. Go back to help have to take that technology. Hieroglyphs, written language is an abstraction on spoken language. What i speak into into a microphone the microphone takes the soundwaves translate that into an analog electrical signal which passes along the wire and honorably inaudibly and invisibly. This is immediately being translated back to be broadcast out, but on this wire the things i am saying are in. [inaudible] and invisible, imperceptible to someone coming along the wire. If it was a milelong some we will not be able to see your hero was happening. When they access it they are accessing information that is mine. This communication is mine. So it is an invasion of a property right to take this communication from me. The internet works in much the same way taking analog signals the appearance of my face sound of my voice, the things i have typed and converting them not into analog electrical signals but digital electrical signals broken into packets and transferred out. When i hand over thisc information to an isp it is subject to contractual protection so that if you want to talk about the signal itself, it is essentially mine but i have given an easement to the isp and have obligated the isps or at least implied contract to make sure that information is maintained in confidence across the internet to its destination. There is as good an argument in the internet context as there is in the phone context that the communication belongs to the parties among whom it travels. Obviously the details in any given circumstance, you have to navigate through the fact specific instances but this is a way to administer the 4th amendment that is sound that does not rely upon the subjective whims of judges in a given situation command over time could restore the strength of the 4th amendment applying it on its terms and consistent with precedent to new technological circumstance. I hope i hope i have at least been interesting. Thank you. Thank you for having me. Take a a step back and look a little bit and how across federal policy is impacting how these technologies are used by state and local Law Enforcement and how that affects the barriers to addressing some of these technologies in court. Right now we have attention at the federal level. Completely level. Completely unable to keep pace with the technology development. Congress is legislating what not a lot in this area and when we look at some of the issues that have arisen it involves technology that is almost decadesold. For example, you discussed location tracking. We are having a debate right now over those technologies, but they were invented decades ago. I am certain there are other technologies we dont even know about yet or have had the opportunity to have a debate about. At the same time that we have this complete inability to put in place Privacy Protection regarding the use of these technologies the government is good at getting this technology into the hands of Law Enforcement the department of justice and Homeland Security has Grant Programs which fund the purchase of Surveillance Technology. Often they go out with relatively little strings attached. There is not sufficient oversight or action to make sure technology is used responsibly. So what are some of the policy changes we can push for that we will facilitate our ability to challenge the use of technology in court and make sure Defense Attorneys in the public are on with the the information that they need. So that is how i want to leave the four points. We need a federal policy that prohibits the federal government from asking the states and localities deliberately hide the use of technology. This has come this has come up in a lot of different context. For your we found out the department of justice was asking states and localities not to. In some instances they were asking state and local Law Enforcement to refer to information obtained by these devices is information from a confidential source so that judges would not have an idea. In other cases they had asked prosecutors to dismiss cases where Defense Attorneys were seeking to challenge these devices command we have seen cases where when a challenge a challenge does go up and is being debated they offer an attractive plea deal, trying to avoid a court oversight. And so i think attacking the problem requires at a federal level prohibition on stopping states and localities from disclosing. So stopping information going to judges depending on the context, judges are being asked to assert more. But in a lot of cases where judges dont know what they are signing. For example judges find over a hundred and 70 orders a warrant application did not say anything about it. It did not say here is the device for using the number of people impacted and what we will do to the extraneous information. And so allowing judges to do their jobs has to be a central piece. The 3rd we will we talked briefly about the amount of funding. And it has become a blank check. For whatever reason the federal government is not good at attaching a lot of strings. More congressional involvement to a state or locality to use or purchase a particular device. They must abide by certain standards. Otherwise it leaves us in a strange space where we are pushing out technology in a way that does not insured is used responsibly. The last piece federal government has been unable to adopt consistent policies with regard to technology. Were not seeing public guidance saying if Law Enforcement wants to use a particular technology they need a warrant. And that is sort of leaving states and localities without a firm sense of best practices or minimum standards. There needs to be a push at a federal level and for congress to put in place consistent standards so that when they confront these issues in court they have a sense of what the rules of the road are. Having said all of that what is congress doing . If i was you that would be the part. Part. Unfortunately i think the answer is very clearly not enough. There has been recent efforts by members of congress to do more oversight but we can have a system where members of congress only get upset when they read something in a newspaper. We have not created a system where congress is demanding notification prior to knew technology being deployed ensuring that we have the privacy debate. This is all part. Lets use the technology now the privacy structure. Congress explains the infrastructure. The the one area that has taken a stab at addressing is more on the area of National Security and how surveillance technologies used. But without those deadlines the practitioners and others to proactively address. Continuously be in a state a state with the technology has developed. So that is actually a pretty good segue to what i want to talk about which is what can practitioners do in specific criminal cases and folks at the state level working through the affiliates. I think there is a lot that can be done. I dont hold out much hope that congress will do anything. I have a lot of optimism about the state level. We have the proliferation of technology and how it trickles down how judges have been deceived hidden command what is important for defense practitioners a few years ago you were in a specific criminal case the judge will laugh you out of the courthouse but we have a map just straight up evidence that shows this is happening at a systemic level across the country. You mentioned tacoma. It is not just tacoma. In baltimore the officer got the throughout the case the throughout evidence in a criminal case. Basically the officer was on the witness stand and asked to answer questions about the use of the device. A nondisclosure agreement kind i have the transcript. Hold you in contempt if you answer my question. We will concede on the motion to suppress. I used to be a federal defender and never got a motion to suppress. This happened the next state over. And in florida the Washington Post ran a story about a guy looking at a fouryear minimum charge of robbery case involving the use of a bb gun to rob a marijuana dealer. They used the stingray to find the guy. The judge ordered the stingray to be disclosed. Government the day probation. We can amass all of this and there will be results. When the when the government can seize on a suppression moment six months of probation that is a win for that specific client. For criminal defense lawyers that has to be the 1st priority but we can use those victories in specific cases even if they do not result in evidence being disclosed. This is not people who wear tinfoil hats. This is a documented problem we are talking specifically. This applies and this applies a lot of other contexts. All of the newspaper reporting resulted in the judges basically having a closeddoor meeting with police officers. Will change how we do things there is not that ability but it is on the defense bar specifically to make help about this and to look where this is a play. If you have a a case where there is a search warrant affidavit a wiretap application you have to start asking questions. When you have a case that involves the government retaining lots of digital data they have seized from a computer doing Forensic Imaging of a hard drive you know that is what is happening. You have to start asking questions. How long of a held onto the data to where they keeping it it, what are they doing with it . Are they deleting it starting to grapple with this at the federal and state level. We can make the legal argument and when it comes to the legal argument they talk more specifically about what is referred to as the riley moment. What is it that is significant . This is just my opinion but what is significant its two separate things. The 1st is that the court did not field down to apply in earlier decisions that apply a different item. A little bit of background the ultimate issue was whether the police could search the data. Before robinson the Supreme Court has said you can search a pack of cigarettes found in a jacket. You can switch in a container found upon the person or in their immediate vicinity. The government argued and many courts agreed that a cell phone is a container that is like a pack of cigarettes. The court did not distinguish the container based on what was in it or the nature of the container and thus the search was okay. Roundly rejected that saying saying these two things are similar its like saying a horse a ride on a horse is like a rocket ship to the moon. That is the. That we have to make. And the 2nd moment the language, there is a quantity qualitative difference about that cell phone that triggers a different constitutional perspective on whether it can be searched. It goes through four examples of the difference. To paraphrase many pieces of different kinds of data in combination reveal more about a person. Text messages and emails and pictures and apps. And when you look at that it reveals more. If you only look at one piece of data there is so much of it. You may have one picture of your kid in your wallet but your cell phone will have a thousand pictures on it what you ate for dinner and who you hang out with and that matters in the constitutional analysis. The other things emphasized with the data on the phone goes back before the phone was even purchased. Ten years worth of emails. The 4th was phones are so pervasive in society today. All of these things together triggered a different constitutional analysis that was not dependent on what the court said 40 years ago. That approach can work when you are talking about cell phone Location Information a forensic image of the computer hard drive. That approach can apply to all sorts. If you have to make them under the 4th amendment the have to make them under the state constitutional protections because you may end up winning under that law. That is the riley moment. Has to be this caused this combination. Showing that we know what is going on or at least we think we do and tying that to my love this phrase, this riley moment that is where we can take the 4th amendment. All right. Questions. You have done a good job of distinguishing between the fruits of certain the source of research. And i am curious about a couple of things especially in the context of federal criminal practice. When i think about confidential informants that is a way to ask a court. We need to get discovery. Good case law or guidance about asking about the liability of the information gathering device. Not a human but machine and the questions you should ask. We have evidence that it is inherently unreliable. Give us information about what was used. Whether it was operated by someone trained in using the device. I have to give you a caveat. I am from california. That means i practice and the ninth circuit. That is my caveat. I have plenty of good case law but it was ninth circuit. The ninth circuit has a couple of opinions. They do not talk about electronic surveillance but what you talked about the reliability of the source of information the case involving a dog and in that case the ninth circuit said under rule 16 evidence of the dogs reliability is discoverable because it is relevant to raising a suppression motion and so i have argued that that approach if it applies to the dog applies to the technology. The dog tells you about the presence of contraband and the government has argued that the dog sniff cases basically support the use of technology that only looks for contraband of electronic files by programs that are able to search a computer file hash image in order to decipher whether the image is a known image of child pornography. To the extent the dog evidence is discoverable in the electronic come information will also be discoverable in the same thing. I want to raise a suppression motion. It is not discoverable for the sake of discoverable but i need information about this reliability to make a suppression motion. I we will move to suppress because i think there is a francs issue, because i think that they did not were not completely forthright and will challenge whether the basis was correct. You can make the argument. You mentioned rule 16. In state court if your practices broader that is certainly going to be something that you want to hinge your argument on. Anyone else on the panel . Good morning. Under your framework does it protect an individuals ability to control personal identifying information and to be anonymous . It depends on the circumstances. If you have taken steps to protect personal identifying information absolutely yes. Most of most of us share a lot of personally identifying information all the time. By posting in a public forum interactive websites which is effectively an identifier. So it depends on the particular factual circumstances and whether or not the person tried to restrain access to the information. There is a really interesting dimension to the license plate tracking that we now know is going on so comprehensively. The license plate. I am pleasantly surprised by the emergence of this issue because i wrote Something Like 14 years ago and testified in congress about the privacy invasive aspects of requiring drivers license plates on cars. Nobody like what is this idiot talking about but we realize because of the technology that has come along is equivalent to requiring an individual to wear name tags to walk in the mall. There are policy differences somewhere someone hopefully will reopen the question whether putting licenses on cars might be a First Amendment problem because it prevents you traveling to a protest with the seat of government anonymously. The changes are multidimensional but certainly identifying information is just a special category of General Information important if you want to protect the privacy to withhold identifiers and if they have factually keeping them from others then they should be protected. Lets take a question from an online viewer. If you are watching this lifestream and have a question you can email questions. So this one i think you will tell me if i am saying is wrong. Traditional mail is being tracked. Scanned, collected analyzes, and shared. Has this data being used . I mean, i am sure it has been because basically allmale cover information is coming from this broader program. At least according to the 2013 story the way male covers are working as instead of it being an individual request command individual addressed mail is going to be photographed everything is photographed and then it is just a symbol later on. I am understanding is just a standard way that it is now executed. I think that is right. That is correct as far as i no. What is interesting is that shows and this was something that was talked about in the 1st panel what we are talking about the way that the nsa was collecting evidence what you see happens is, it trickles down to other federal agencies and interstate Law Enforcement. It starts it starts with National Security collection and then it becomes male covers license plate readers the dea as a call records database of calls that people in the United States place to run command that was because according to the dea iran has annexes to drug trafficking. While that might be true, i think wicked all think of other countries that have a more significant nexus. And so you see how this trickles down and you here about local Law Enforcement databases biometrics are dna or whatever it may be and this is the world that we live in in terms of how evidence is gathered and used and why it is important for defense lawyers to not only be familiar not just the broad contours, but the specific contours and what is happening in their locality, state the Police Department is collecting information and start to think of ways to inform judges about what is going on in the specific localities that are at issue let me say that in april in a cdl will a cdl will issue a report on the use of mail cover information reportedly approved by a board in mid april linked to the a cdl website shortly thereafter that will talk about some of the uses of that data and the accelerated usage of it over the last few years. This is along the lines of the earlier question the reliability of information being used in federal cases. One thing that i have been trying to obtain lately is the fbis cart manual computer analysis response. I think it would be tremendously useful and crossexamining fbi agents but at this time i have not been able to successfully track it down. I i am wondering if you guys have had any success with that or if anyone has seen it or anything along those lines. I have not i have not seen it and i do not think it has been turned over. I know there was one criminal case in South Carolina couple of years ago an issue about whether it should have been turned over. But i have not seen it. I would love to get my hands on it. They have done work to get their internal manuals. They lost they lost that in the District Court and it is upon appeal. I agree with you but it goes back to the broader points excessive secrecy. It is up to defense lawyers to kind of defense lawyers at the forefront. They have the ability to use discovery tools which will be greater in terms of getting information. And and so, i mean, you have got to make the request. You you may not want to make it in every single case but if you think you have a concerted case where you can make it to me have got to brief the issue and make the request. I no that that sucks to hear but i think this is an integral component criminal defense and the modern age that lawyers need to be aware of. Lets take another question online. This one is from mark pack awaits. If a lawyer client privilege is negated how does this apply . Is privilege preserved if an attorney emails a client and a client and uses a thirdparty email provider like microsoft hotmail . I am i am not aware of a court suggesting there is a privilege and metadata generally. Off the top of my head at least i was not aware. The privilege would go to the content of the conversation but there is a difference between the privilege issue in the 4th amendment issue. They they sometimes both use the phrase reasonable expectation of privacy but in a different way. At least as far as i no they are distinct questions. I actually think there is an aba ethics opinion on the use of email for attorneyclient privilege information. You have no reasonable expectation of privacy. But i think that has been settled. They have said you could use it. And, you know i think it is not a good idea for lawyers to email sensitive information, but that is just my opinion. A lot of the technologies that are being discussed today seem to permit the indirect securing of such information, and im wondering what your thoughts are on the vividly advisability and force of the First Amendment argument concerning freedom of association which that case held includes the privacy among associations. I think theres a strong argument that the first and fourth support each other. For the reasons you articulate and the parallel to that earlier case. Metadata is very informative and the quoteunquote metadata indicating all the people you contacted, contacted at a given time, how long you spoke to them, et cetera, et cetera, reveal your associations, reveal your behavior and the argument goes that knowing that this stuff lacks Fourth Amendment protection evil self edit you will selfcentered. I think thats a strong argument. There are plenty of cases though where the same kinds of what we think of as privacy cases where the and same invasions dont have any communicative First Amendment relative so think the Fourth Amendment should also stand on its own. That is, your argument shouldnt rely on the fact that theres a First Amendment value at stake in order to get protection for information. The information should be protected as such independent of its communicative substance or meaning under the fourth. In fact, theres a section an article i published with the american University Law review that the subsection is titled four plus one does not equal four. Just looking at the cases in this area, my sense is the First Amendment doesnt get you very far in the criminal context becausebecause youre dealing necessary in a criminal context someone who effect was discovered to engage in some sort of wrongdoing and that First Amendment is allegedly. Well, okay. Allegedly. All my clients are innocent too, dont get me wrong. So youre dealing with a context or user is going to be relatively clear that at least it was a good faith investigation, government trying to find evidence of criminal activity rather than just expose what a group of people were trying to interview with First Amendment protected speech but theres a case from the ninth circuit involving nambla investigating a group engaged in potential thieves like nambla. Theres a good faith estimate First Amendment standpoint goes beyond what the Fourth Amendment standard would be. So theres no Fourth Amendment problem with infiltrating the group. If somebody on the inside of the group is going to share information with the government, not a Fourth Amendment issue but it could be a First Amendment issue is the purpose of it was to try to interfere with First Amendment expression to the implication of that is the purpose of nothing to do with First Amendment expression. Just the Fourth Amendment and the First Amendment issues the way. Otherwise be difficult a lot of criminal investigations will involve revealing what a person did and by revealing what a person did is going to involve what a person thinks and to their friends are, and so if the First Amendment impose a barrier to that he would be hard to have a lot of criminal investigations generally. I think the most First Amendment protected approach ive seen is the ninth circuit which i like to put it at least amounted to a good faith standard. So the First Amendment issues are there but they would be relatively modest in most cases. David clarke student at george mason. And i want to come back to the exclusionary rule but it can be challenging situations like stingray when theres like government privilege type situation involved, thinking like that. Is there a way that you can talk about, mr. Harper or anyone else, walked to the type of nose is a special with the lj and judges are not so sure with what the government is doing is actually egregious enough not just mistake of law or not an accidental administration or Something Like that. So any thoughts about getting that which excludes evidence . Now i can get to the depressing other half of my introductory talk. It all depends on what the courts do with exclusionary rule to theres a lot of uncertainty as to what the standard is. Until hearing in 2009 there was sort of a rulebased approach to the exclusionary rule which was evidence was discovered through some unconstitutional means there is a set of kind of rulebased doctrine, standing doctrine, inevitable discovery and that would tell you in this category of cases should it be suppression or not. If you could show to withstand and poisonous tree and the inevitable discovery you could get depression. And it introduces a suggestion that maybe now its more of a case by case was the officer that in this case, or the Police Acting badly. And then davis although it enacts a rule, also suggests this sort of maybe its more of a casebycase question. Its tricky because the court replaces this costbenefit analysis with the culpability standard. Were the officers of mobile, the idea being culpability would be relevant to deterrence and then the deterrence part relative to the cost benefit of the court has this now we think as this freestanding culpability question. And then you run into how the major culpability . That culpability in the one case, if there are five officers, whose culpability matters . You have some court saying we look at whether the officer was culpable in this case if we find a bad actor then we will suppress. Then you are stuck from the defense perspective when courts take that approach sang a violation was officially fundamental or egregious that he we should say the officer is culpable. The difficulty without especially when the claim is based on some sort of evolving Legal Standard or a fairly novel legal claim is that its going to be hard to argue that an officer was culpable in violated some rule that didnt exist at the time that the officer was acting. Not impossible because would you do you try to read it in some broader framework. You say this is not a novel application of the law. This is a fundamental principle that searches require warrants unless theres an exception condition be nearly construed. Theres argument you can make but its going to be tough going. And then really what i think we are waiting for eventually the Supreme Court is going to have to figure out what are they doing with the herring davis line of cases. Is this a case by case approach to the exclusionary rule . Or the more of a rulebased approach the exclusionary rule. Right now theres a lot of uncertainty. You hope you get a judge who takes a narrower approach rather than a broader approach to the exception, to the exclusionary rule. But its ultimately going to be something the Supreme Court has to resolve and then i cant get to all that is from a defense standpoint you want to keep the Supreme Court out of this case out of this issue as much as possible. Obviously, if you have a plausible addition you will file the petition to try to get relief for your client but i think the current justices on the Supreme Court are disinclined to apply the exclusionary rule. I think there hasnt been a winning remedy to the exclusionary rule case in a long, long time. Maybe 1990, maybe the 1980s. Its been a long time probably reflecting interestingly i think the policies of the Reagan Justice department from the 1980s which influenced the current justices. You have this weird historical lack why dont think the exclusionary rule is a major issue today to a lot of people especially with crime rates down but it is the current justices, they are cutting back on exclusionary rule as an important and a necessary goal. So the ideal would be from a defense perspective you draw a judge was going to take, in this uncertain will take a broader view of the exclusionary rule and then you hope that some of the justices to away from this for now. That i just and two quick notes . The first is when youre talking about good faith under davis, said davis which says reliance on binding appellate precedent goodfaith, i think thats one of the areas where you can use that moment, that you these cases dont necessarily apply. This has not worked very well in federal court. With this has come up in cases post jones that involve the installation of gps prejones. After jones was decided so its what happened all those cases where the police install gps devices for jones was decided . All of those cases into federal courts, the court said this is davids good faith because prejones they were relying on these two cases from 1980s that said you could track a cars location in public. That argument has been killed in a federal court. But in the state courts there have been some state Appellate Courts and state Supreme Court that said, they dont control gps and thats not binding for our purposes. That is a minority position. A minority position even in state court but there have been a few decision. Thats one example of how you could use that riley moment to kind of further the argument. When youre talking about leon a good faith, that is binding reliance on an order that on its face looks good but is later found to be insufficient, i think one area and this may be this kind of growing the reflects the fact that state law for officers will oftentimes be the ones investing the case that eventually makes its way up to federal court. In those instances if you can show that the state Law Enforcement violated a state constitutional protection or state statute while that doesnt message on the menu went on the Fourth Amendment issue, if you can when the Fourth Amendment issue then you can use a state law as an advantage to defeat the leon. You can basically argue im glad she created this new rule that you had really thought of before but note that in this state for example, police have not been allowed to do this for 30 years. In california, for example from the last panel someone was asking the State Government the thirdparty doctrine. California has overruled the thirdparty doctrine in 1979 in people versus blue. The california Supreme Court said you have an expectation of privacy and your phone records under the telephone state constitution. You dont havent under the federal constitution, and blair was decided after smith and they said smith said you dont have the Fourth Amendment interest here but under the state constitution you have a state constitutional protection. So that is, were going to find a right of privacy the. If you have a case where state Law Enforcement are investigating a case in california where they get records that violate blair and i case goes to federal court, the blair violation does not matter for the Fourth Amendment like analysis, that if the court is going to have to come to point to decide good faith, it could be relevant there. This is where you have to be creative in coming up and understanding and really exploit the interplay between federal andlaw and state law in these issues because there is room to not a lot of room and im not saying youre guaranteed to win but these are the types of creative arguments i think lawyers have to be making in their cases. How big of a problem for practitioners is technical or technological literacy . Technological leader see for judges and for attorneys but i think its increasingly possible today to be extremely intelligent, welleducated wellinformed and still not have a basic grasp of how the things that you use work let alone the things that please are using and the fbi is using. Does that play out as problematic in a court . I assume i know the answer but it so i know there are mechanisms certainly at judge disposes, maybe not so much attorneys such as appointing special masters or panel of experts. Judges are not making sufficient use of. Is that even in a more doing it some kind of systematic approach to making sure the judges and attorneys had the technological expertise they need . I mean, i would say seems like its playing at to be very significant problem, right . Part of the problem is again technology is extremely quickly and theres a small number of people who appear to understand how it works. It seems account works can often go where the document will work or not. I think becoming particularly with changes in the demand resources to reach out to technical experts dont even know that is what they should be doing. They may not understand the complexity and how things were. Weve seen this with the nsa context where judges were not aware of how the Technology Works to requests for information were approving orders with a clear understanding of the number of people impacted. So i do think theres a need for education at all levels, both with attorneys and judges. We might be evolving to a place where having technological or experts become a real critical piece of in a defense attorney for any litigant kind of arsenal, but they need someone who is a technical expert. Liza, i think youre absolutely right. And i would add that this is i think the role of defense counsel is to educate the judges as to whats happening to the utmost going to be getting the commission especially in the lower courts from the brief. And sometimes the briefs take the judges through the technology in very basic level and sometimes they dont, and when they dont thats when thats when you have sometimes opinions that have no idea whats going on or oral arguments, my favorite example some of this is the city of ontario that the Supreme Court argued involving Text Messages effectively pager messages. One of the issues was whether the words Fourth Amendment protection. Tickets to the Supreme Court and it was briefed by civil litigants who are not focused at all of the technological question the pages can assume the judges knew this and then the justices were asking questions at the oral argument along the lines, my former boss justice cherry asked a question if two messages coming at the same time, do they balance . Do they get a busy signal . Tenderloins were talking about how the pages go from server to server i think was chief Justice Roberts who asked you mean you dont go directly from the one device to the other device . These are sort of questions which would make sense if your technology is either a block box to you or like the telephone something people familiar with. I think its striking the right decision last year went out of its way to these technological savvy to cite a lot of technical authority, heres the clout and all these different things. I think probably perhaps a response to the toronto argument which drew negative criticism. I think youre right and thats the role primarily the rule of defense counsel said this is a technology, heres how it works. What if you read public defender and this was in a field of expertise . Im an attorney and he just about technology to make the argument in a way that i Read Everything i can to i still dont get it. We have hired consultants. We spend a lot of money on that. What if youre a public defender . What are your resources to even have the information you need to try to persuade the court . I guess it feels like maybe a bigger problem than just i dont know. I would call the Electronic Frontier foundation. [laughter] seriously. I would call and say what can i do . What resources do you have . Because they are great. You should call me. We get lots of calls from private defense lift him from public defenders. I think, i get a lot more calls than i used to which i take it as im doing my job right. And i think the other thing is were trying to create more Resources Available like plug and play resources. Heres the discovery motion come into template. Putting your clients think tweak it finally. I think one of the things that Defense Attorneys have as an advantage is we need to pool our resources and we need to pool our collective knowledge on these doctrines. And i think in the last few years theres been an increasing amount of this because this issue has taken, is blown up. I mean orin talked about the difference where they assume without deciding expectation of privacy and Text Messages sent to a page which nobody in this room has a pager, right . And riley were they talk about encryption and facebook and web md and location. I think there are resources there, and we will help you we will a lot of public defender officers especially in the federal level, they have on staff forensic examiners who are getting more uptodate on this topic i am actually speaking in two weeks at the National Defense investigators association, just all public defender and federal defender investigators, and just walking them through the system. Theres a growing awareness and growing collection of resources. The aclu in california has a great defense attorney guide to stingrays. You can download it off the website for free and its a great resource. I did a schema for a lawyer who worked the ball of the work. So there are resources out there. Dont be afraid to ask. Come talk to us. Let me briefly of from the problem. Thats not very helpful but in a way that might expand peoples thinking about this stuff. I served as an extra witness a few years ago on a case where a guy was charged with using a false id. Ive written about identification a lot. And what they made available to me before i testified it was a copy, you know, a xerox copy of the id. When they plopped it in my hand, i was expecting to see the usual holograms, to be able to see the layers and the id itself, which is that it into all kinds of security measures you can find in ids. They handed me an id that was like paper with the picture glued onto it. They hadnt given me an advance what the actual nature of the id was. So they were not prepared to ask me questions that would elicit just how unbelievable this was as an id and would actually for anybody. So that compromise i think their ability to examine me as an expert about the technical characteristics of what a false id is. So again affirming the problem. Its not just in Information Technology or maybe id is a form of Information Technology. Its in lots of different systems that we have. Everybody has got to bring up again. I think orin is right its the defense responsibility to inform the court. I asked this question from a unique perspective. I am the secretary of any cl. I have a daughter who is at american University Law student. But most important a mother is the number one viewer of cspan. [laughter] i know its friday after 12 anything shes after cspan support group. [laughter] i want to ask this question from a rule 16 perspective. The first panel talked about the proverbial needle in a haystack but i want to address the rest of the haystack. Because for most of our members that are watching this right now, these types of searches with its Stingray Technology really produced nothing. And to those attorneys that are members, this is a massive almost infinite source of reasonable doubt for the client. So what id like is some perspective from a legal slashed technical standpoint on how we can address these issues in the front and. In other words, telling the court and telling our opposing counsel hey, we want everything actually that you have because you produced nothing that indicates guilt. And if that is a key messages or 18 million sources of communication that produce nothing, thats potentially 18 million arguments of reasonable doubt on the health of our client. Could you give a perspective that would be great. So i totally agree with you but its going to be a bit of an obstacle. And the obstacle is going to come from a couple different places. So, for example, lets say you want to get if youve been a criminal defense work you probably have encountered the. Lets say you wanted to be no messages from facebook as a defense lawyer. You are not getting them, right . Because the federal apprentice them. They can give to the government but they cant give it to you. And so there are going to be some obstacles to that approach but he dont think thats a bad approach. And i think whats important to note is these approaches are not like mutually exclusive. Like a lot of times i get a lot of talks at symposiums like this would talk about the trend an issue and take a look, this is great, i wanted to get award but they will get the one and anyone 100 pages cell phone records putting my client in strategic locations to i dont care about Fourth Amendment. I want to challenge a liability. So how can i, why did you guys ever does that . I always say these are not mutually exclusive. Its a multipronged attack. They didnt get award the challenge that the if they got a warwart you challenge the were. If they got a warrant and its particular eyes and they want to use it as well, you can argue the records are precise enough to create a constitutional protection but not enough to be reliable. They are not mutually exclusive and those are not in tension with each other. This again goes to the idea of collective knowledge and collective sharing of information amongst the defense bar to mount the sort of challenges in appropriate circumstances. Thats the general point. In terms of the specific point, like i said i agree with that. I think the practical difficulties getting your hands on the data, particularly when its the government that has collections of that data. That being said, like i said ive heard of example to in San Francisco the public defender their routinely gets southside information to prove alibi or chip or the other guy did it. Those with the wreckage could get from Intelligence Community asian providers. You know im drawing a blank. There have been other examples and ive talked to a lawyer in arizona did that to get the case dismissed what he had some slight records that showed his client was nowhere near the scene of the crime at the time it was committed. Again, you can even make those with the request unless you know that information to whether you want to go in with the tactic of show me, bring it all in lets prove reasonable doubt that would depend on the fact that every individual case. But again the important these days to have knowledge and to share resources and figure out what is the best approach in my specific Case Committee think about maybe the best approach is all for this approach. Made the best approach is to focus on the suppression issue maybe focus on unless something else. You know again theres room to work on that. We are still, we are still struggling and trying to figure that out more specifically, but that something we have on our radar. Anyone else . Thank you. [inaudible] this may seem selfserving, but one of the greatest resources [inaudible] just like in riley, milliseconds away. There was much information posted including access online. [inaudible] someone else posted affidavit of supervisors in the program and other discovery. So i think for those that are members so those members who are watching certainly go to the general list you will find it. If you happen not to be a member consider being a permanent member. Thank you