Transcripts For CSPAN2 Today In Washington 20130409

>> and i suspect there's also other pieces of legislation that have been introduced on the house and senate site. a good number of cosponsors, there are also builds on the senate side. i can speak more to the house developments and last month during i know david spoke to this, but i think it gave suzan a lot of optimism that the committee chairman goodlatte expressed interest. so though be a lot of consultation with stakeholders in the course of these hearings. the first thing was positive to have. the department of justice has to say there is merit to this idea that we need a warrant standard for stored e-mail content. that was hopeful. i think the remains to be seen kind of what stakeholder concerns there will be your queen of law-enforcement is going to present some information and issues we need to take a careful look at. by no means is the legislation that my boss has cosponsored not open for conversation and consultation. i'm pleased to be here today. to continue that conversation. >> thank you. so now i want to bring jason weinstein to the conversation. i do want to ask jason to give us a bit of a law enforcement perspective, and the reasons, well, the reasons why from a law enforcement perspective you would agree with or have concerns about both the requirement for award for content and a warrant for location. >> both now are just content? >> if you could speak a little. we will get in more details as we go forward but if you could give an overview. >> dave and greg i think a good job of auditing to what some of the distinctions are in transport when it comes to content that i think the landscape o of the rule is if me competent than the allude othero because not only is the distinction between the age of e-mail and wasn't enough has been opened or not there's also distinction whether the provider is perhaps the public or not to provide for the public. so the chart the department justice uses what process applies to give a request for e-mail is multicolored and has more boxes than you can count. if your statute needs a chart to explain -- the course of make it even more complicated because the distinction the statute makes between opened and unopened e-mail place everywhere except in california where they decided to treat opening e-mails the same. in 2010 the sixth circuit change the landscape dramatically by declaring that with certain limited exceptions, any provision that allows for process less than a warrant to get content is unconstitutional. effectively because the major providers like google and microsoft and others started upon the war shackle as a general from 2010 on. the rule in this country effectively has been warrant for content. it was a very significant thing for the department to make the acknowledgment that it did at the hearing on march 19 that the 180 day rule and the distinction between opened and unopened e-mail is not a meaningful one. but the department didn't have to go that far as it did. the department when one step forward and said this about an italic that we deliver the warrant requirement for content for public providers and that distinction is important. i left the department in december and there was consensus emerging that the 180 day rule and the open, unopened distinction have to go. but the strong support for trying to preserve sort of a two-tiered system process. we now have the three tiered system, subpoena was noticed for a warrant. there was some support for trying to preserve at least one option for you haven't yet achieved probable cause. and where you would have to give notice to the user. the user had an opportunity to challenge the process. i think it was last spring for last summer greg and some of his folks and diced into a half hours to get china has shut weather was any liability to the poorest -- postwar shaq era. i think it's become clear over the time in the post were shaq era that's harder and hard to argue against the road with effectively been living with one for almost two years. so is a very significant thing that the department went one step for dancing essentially need to go but at least as public providers a warrant requirement is appropriate. i think that as i eluded to, reflection of the realm in the courts and the political reality as well. warshak change the judicial landscape and i think you to be a really astute reader of political theory to see that a great deal of momentum on the hill for changing ecpa in such a dramatic way to get it work for all content requirements. so i think the department deserves a lot of credit for taking that step but i think it reflects the reality that the department and its prosecutors are facing. i think there are two important caveats to position the department took at the hearing. the department's position as i understood it is that the department can live with a warrant for all content requirement for public providers, google, microsoft, yahoo!. with two caveats. number one, the art bunch of agencies that conduct investigations for which e-mail is just as important as it is in criminal case but based on what their statutory authority is instructed don't have the ability of search words. i think it also places some congressional committees. so the department suggested that if congress were to adopt a warrant for all content requirement it's important to carve out would agree some for an equivalent for the civil investigative and regulatory agencies they can't get a rule 41 warrant but still need access to e-mail to do th the work. the second is the distinctive republican on public providers. the department's position is a warrant for all content requirement is appropriate, but the department has suggested congress should consider making the statute only apply to public providers and not to private life private employers who provide e-mails to their employees. the statute in some important ways including in the provision for government voluntary disclosure make a distinction between your employer who can provide content of your e-mails the law enforcement or anybody else for that matter voluntarily, and the google, yahoo! and microsoft's of the world can. the department suggested for corporate employers who provide into in the networks for their employees to require a warrant for that content as well for these closed networks. it would create a situation where if a corporation is being investigated for some sort of criminal activity, a paper record or e-mail that had been printed out and placed in a file cabinet, the final session the department could get that e-mail. or if a doctor was sitting on a file cabinet it would be attainable by subpoena but if those attached in e-mails the government would need a warrant. so the department is suggesting that should be carved out an entirely. so i think it's a very significant position for the department to take. >> greg, we're going to come back for more detail later for the justice department's testimony. buthe first to want to follow up more on some the things that we did touch on in the first round. and if you could sort of round out the picture that lease was able to provide the talk about the state of play on the senate side and the bills that are pending? >> so, thank you sharon. the major bill in the senate was it is on march 19 by senators leahy and lee. it's h.r. 607, and it would require a warrant for content. it just deals with the content issue. and just in answers, the doj concern about what we call the corporate e-mail issue, at six '07, sorry, yeah, the corporate e-mail i should say, i described it this way. if investigative agencies going to an agency seeking records as part of its investigation, it should be able to go to the corporation and tell the corporation, additional records, no matter whether they're in a file cabinet on premises, whether they're stored on the network, or whether they're stored on a third party network for you. get us your records, here's the subpoena. as opposed to the justice department going directly to the third party with a subpoena. why is that important? that's important because when justice or another agency goes to the third party with a subpoena, the provider turned over everything that's in the account. the provider cannot be expected to make determinations about relevance, about privilege that the target of the investigation would be able to make. so the theme on the leahy bill on this corporate e-mail issue is, if you're going to put the provider, to the third party, you've got to go with a warrant. if you are going to the target, the corporation under investigation directly, we are maintaining the subpoena rule. i think it does a very good job of drawing that line, and i think it works out pretty well in that legislation. senate side, there is a counterpart to the gps act. it's the widened-kurt gps act. it's the same piece of legislation at 639. and it would require a warrant for location information regardless of whether it's stored or accessed real-time regardless of whether it's generated by gps or by cell tower location. >> david, i want to give you chance altered to talk more about google's participation in ddp. we don't often necessarily seek a company like google on the same side as the privacy advocacy community. so if you could just explain a little bit why is google a part of country, why on this issue do you find yourself very much instinct with the private accuracy? >> i think this underscores the point we been alluding, which is there's the broad spectrum of support both on the right and left for the principles that we are espousing. or maybe there is disagreements among consumer groups and trade associations encompass like google about striking the right balance in terms of commercial privacy but all of us recognize the gap that exists under current law. all of us believe in the fundamental prescription that we need to make to close the gap that exists between where the law is and where consumers reasonable expectation and privacy by. we think it's great the trend had been growing in the last few months there's been significant number of companies and trade associations that have joined, there's obvious event formation of the digital force group, which is a very interesting group, strange bedfellows, that might not coalescing around different privacy issues. but i think when you look at the list of ddp mr. meehl it was a part of the physical forced to look at who is sponsoring bills in the house. look into sponsoring bills in the senate. it's very different maybe than it was five years ago. there's broad bipartisan support for this, so that's something that's great. we are original members of the ddp but we really try to focus i think everyone who remembers the ddp's focus on broadening the coalition because ultimately we think the principles that we support our once enjoyed widespread bipartisan support. >> think you. so lisa, h.r. 93, the bill your boss is a sponsor on, it bears both of these issues, even though some of the other legislative separates the muppet i think you mentioned conyers speaking that something that's important to your boss. ancan you speak a little to that approach? >> i think she, i think that he is as a pragmatic kind of practical application of the law we are looking at data that is owned by third party providers and whether it's gotten through a geolocation mechanism for through an e-mail service provider, that it is a data that we need to be very cautious about. and so i think it's a natural point, i think there is a little bit more understanding and awareness about the e-mail problems and more of the case law has really kind of, there's a uniformity and now that is dealt with in the area of geolocation it seems as though there's more discord. there's a greater need to legislate in this area to provide consistency. so to pair the two issues together i think it's a good opportunity to educate both of the issues and provide the same standard as a these are identical, these are data that these third parties have and we're going to apply the same standard to full disclosure for both. >> thank you. jason, i wanted you to focus more on geolocation information. partly due to -- you mentioned earlier that in part on the issue of content it was so -- i was sort of post-warshak, with the justice to barbara says there's a warrant for content stand. on that location, we don't have a comparable situation under ecpa but we have the decision last year from the supreme court, united states versus jones, and that case, the majority of the supreme court decided unfairly narrow grounds and followed the analysis the fact that the officers physically installed the device on the suspect's car was important to the majority of analysis and saying that was a fourth amendment search. but with five other justices in two separate opinions but we can add together to get five, was a majority, who exploit into two separate conferences privacy analysis and indicated that under their analysis it was required for the use of this kind of very powerful electronic surveillance technology that could track the suspects location even in a public place. but that hasn't carried forward as far as we know it to the justice department's practice so for location information or cell phone location information. if you could explain that. >> i think it's important to do so to understand the difference, the different types of location information. greg alluded to this. the situation the court is a mess when it comes to location information. i agree this is an area where legislation is important. i think everyone here would agree that clear rules are good for everybody. they're good for providers, good for consumers, good for the public. they're certainly good for law enforcement and we don't have that at all when it comes to location. the department makes distinctions between cell tower information and more precise gps type information, and within that another distinction. cell tower information is the information that's generated to the providers of the can connect your call or complete the transmission of text message. those records are created by the provider. they're only created when the call is taking place when the text messages being transmitted. they maintain those records in the ordinary course of business. they provide you with cellular service. they're not nearly as precise as gps. depend on call volume at harmonizing the the tower closest to you. you may been shuffled off to another tower. unlike gps they can place you within a building or house or certain within the room. with himself our information there two types, historical, what cell towers your phone was hitting off. back in january given they are given week. or a perspective which is what cell towers, your phone will be heading off for the next 30 or 40 days. generally speaking the closest thing to uniformity we have in the country regard historical cell tower information, standard gym and the courts in this country is the can has to be so specific. sort of the functional the prevalence of suspicion. there's one circuit that tells that's a floor and on the ceiling. but for the most part you have to show specific. there's a split among the courts in this country in some cases with the magistrates with at the same district or circuit over what to do about perspective cell tower information. there's no clear legislative authorities for the government to get perspective cell tower information to we have cobbled together a story for both the pen registration act images for years what's been called a hybrid order. back in 2005 or so, a couple magistrate wrote opinions in which they held that legislative authority was unclear. in the absence of clear legislative authority supporting the use of this reasonable suspicion like standard, they were going to require a warrant based on probable cause. those opinions spread like wildfire. in districts tha of the country including the one i was practicing in in maryland, almost overnight u.s. amenable to get perspective cell tower information with reasonable suspicion, and not being able to get it without a warrant. i'll explain in a moment why that is important for precision location information, using gps technology and your phone, historically as far back as i can, i was a prosecutor for 15 years starting in 1999, as far back as i can remove we been required to use a warrant to get that. that may be a surprise if you watch 24, alias or just that any program aired on tbs, but that's through. you can't just get by being jack bauer and punching something on your smartphone. you have to get a warrant to get gps information from somebody some. that has been the rule, and that's been the departments guidance. jones affected tracking guidance on vehicles. sharon heard me say this, for what it's worth, best practice, i would always teach him the best practice was to get a warrant. even if you're slapping it on, even it's going to be monitored on a public road. if the car goes into private space, if a drug dealer is going to do the transaction in a private garage don't want to have to turn the device off. you want to be able to monitor the signal. the only way to assure you can do that legally is to get a warrant. i still think that's the best practice. although as the department made clear just last week, jones left open the question of the opinion is sloppy, the rationale, they left open the question of whether the search that's represented by the placement of the tracker on the car is one that requires a warrant. or whether there are other categories of fourth amendment searches, which you probably have heard of as stop and frisk. were based on race will suspicion an officer can pat you down if they have reasonable suspicion to believe that you're engaging in criminal activity and that you may have a weapon. it's one the courts have held based on degree of intrusion the race will suspicion is enough and you don't have to get a warrant for the. by the same token, for 20 or 30 years there's been an exception for searches of cars. because of the inherent mobility of cars, if law enforcement officer probable cause to believe the card contains evidence of crime they don't have to go to church to get a warrant to search the car. they can search the car based on their assessment of probable cause. if they are wrong that evidence will probably get shred later. but based on probable cause, they can search the car without a warrant. even post-jones, since jones left the question open we now need to lower courts to fill in the answer to that question. the governments decision is reached will suspicion could be enough, it's analogous to a stop and frisk, but even if probable cause is required it should be subject to the work requirement to it is intuitive. so the rules for jones, and the post jones era are somewhat in flux because the opinion was somewhat clear. why is the department much more resistant to award for all location information requirement than for content? it would close down to the notion of building blocks. prosecutors don't start the cases with probable cause. prosecutors build up probable cause by using less intrusive investigative techniques based on lower burdens of proof and they collected evidence and compile the evidence, and sometimes that evidence allows you to rollup innocent people and to focus on people they believe are guilty. then to put the pieces together to say now i have probable cause to get a wiretap or search warrant to do something more intrusive. cell tower information is a critical important building block. before i came to the department and oversaw the computer crime i was a prosecutor in baltimore which is a city that has its share of violent crime but i can tell you electronic evidence in general and cell tower records in particular are critical important, the kind of stuff that was my bread and butter. i was in a district that almost overnight when from reasonable suspicion standards to probable cause and virtually shut down our ability to get cell tower information and use that as a building block. it was critically important a lot of murder case i prosecutor and supervised. in our view, in the departments view, and it's been the departments of you for long time and i think will continue to be, failing to distance between the different types of location, between historical and perspective, between cell tower and site, and requiring a warrant for everything without friction would impair the government's ability to bring many different types of cases successfully from identity theft decided cases, white-collar cases to murder cases and cases that affect people's physical safety. it's also important to recognize that there are plenty of situations including emergency situations where location information, the government obtains information about search warrant where they think missing children or people whose kids are missing, you're not sure if they're abducted or not. there's not necessary to probable cause to believe a crime has been committed and the government gets that information in an emergency situation. so in a warrant for all regime it's important to preserve those emergency exceptions as well. the last thing i will say is that third party doctrine, which at least one of the justices, i think sotomayor, wrote an opinion saying jones ought to be the beginning of a national discussion about -- spent i'm going to go there. perfect segue, thank you. thought want to talk about third party doctrine speed but wait. spend do you want to respond? i will let you respond. go ahead and then i will get to the third party spirit led the issue be joined. let's join the issue right now. isn't your location over a 60-day period prospectively or retrospectively? is that just a building block of an investigation, or is it something more? we think it's something more, that you have a privacy interest in your location over such lengthy periods of time that the justice department just isn't recognizing. here's what i think of a building block. a building block is who belong to this ip address on the stay at this time? where do they live? how do they parent there built? -- how do they pay there built? those are the type of subscriber information that the building block. who did this person e-mail and who e-mailed them? that's also a building block. but when it comes to something like your location over time, that is a different matter to my mind, and i think to the digital due process group. one other point about location, it is not the case, it is not the case that gps is always more precise than is cell tower location. increasingly, cells are becoming smaller and smaller, particularly in urban areas. and nowadays sells candy one floor -- cells can be one floor of one building. one floor of one building. you can't get that precise with gps. they now outnumber the larger cells, the ones that you see when you're driving down the highway and you see these big towers standing up. they are increasingly small cells that will increasingly locate you, even more precisely than gps. >> okay, so now you've got -- before you get to the third party doctrine i think some of what this is getting at in this debate is also what was going on in jones, getting our heads around what is reasonable expectation of privacy in the digital age. and so historically there was a notion that you know raise will expectation of privacy in a public place. as to location i think it may be harder for some people to get there, that this is reasonable expectation of privacy. when you're talking about these very powerful electronic surveillance tools and follow somebody 24/7 and in the case of the jones case, 24/7 483 a couple of months. does that get us toward even in a public place you are violating someone's privacy? perhaps content of your personal e-mail, it's easy to understand you might have an expectation of privacy in that. is that some of which you might be think of what's going on? >> well, i think the way i would respond to the, first of all, neither of us is as much of a techie as which we were so i think we long ago agreed to disagree. but on the other issue the great raised, this is a third or fourth been together so we have this whole routine down. i don't think the government is saying, i don't think the department has taken the position there's no privacy. the question is is that a privacy interest that the constitution recognize or is isn't one that can be protected by statutory standard that is somewhat less than probable cause? right now as i said the standard is specific. in some districts, and this is one of the larger points that help you take away with, just as important as the standard that congress writes argueta standards are applied. i won't name them, you can read them in my bio to figure out which one i'm praising and which one i am criticizing. in the standard for getting a pin register is the information is relevant in a criminal investigation in one of the districts, all you have to do is submit a to page pro forma application to the court in which is certified as prosecutor that the information is relevant to a criminal investigation. the other district i prosecuted you had to submit the equivalent of a doctoral dissertation. 15 pages of single spaced, replete with facts on to the judge said that's not enough. there's no justice in that. there's no justice in having different standards appl applieo different defendants in the same courthouse. really no justice no different standards in different parts of the country within the same federal system. the just as important is the way the standards are applied. the standard, in my experience, is a rigorously applied standard. back when the standard was raised in 1994, the privacy community embraced that change from basically a subpoena standard for reasonable suspicion as protected of privacy providing a high degree of protection. .. >> actually, i'm going to turn first on this to lisa and david, although i'll give you all a chance to talk about this. so for those of you who are not fessly in the weeds on -- necessarily in the weeds on these doctrines, the supreme court came up with a case in the context of banking. but the basic notion, and i'm summarizing here, but the basic notion is if you as an individual turn over your private data -- in that case, financial stuff to a bank -- then you're basically losing your fourth amendment privacy interests in that information. you've consented to give it to the bank, you've shared it, it's no longer your private, protected information. so the government then go and seek it from that third party without you having the same traditional fourth amendment safeguards in place. and that doctrine has been criticized in more recent times in the digital age including by the constitution project and also some other folks because the notion being in today's world, you're turning over your information constantly to all sorts of third parties of to have your phone, to have your e-mail and so forth. and, in fact, in the decision that we've mentioned from the sixth circuit, they distinguished the case of e-mail from banks. but i want to talk, get the panelists to weigh in on this because it can raise issues in this context if you were going to go into the court. and because we're talking about the government getting this information from third parties, from the providers. that's the whole debate. so, saw, i wanted to start off with you -- lisa, i wanted to start off with you. with this doctrine out there, the obvious question is does that change the strategy, and does that put more of an to us in on working with congress because you're not burdened necessarily in the same way you would be going through the courts? how does that affect the analysis there? >> a really good question, and i think the job of the court versus the job of congress are different in that respect, and it's to the benefit of the assessment that congress can conduct when having these hearings. you know, the demands of the constitution is something that the courts will work out on a case-by-case basis. they're going to look at the specific, unique set of facts and one gps device put on one car in one situation and what the probable cause or what the level of facts and what relevance that has in those situations. but i think when you have congress reviewing the broader issue, you can look at, of course, how the courts are interpreting what the constitution demands and look at that, but you can also look at how this impacts our nation's competitiveness and the industries that are the third party providers. and i, you know, would turn to the googles and wire rest carriers who would be able to speak more to that issue, but i think we want to be thinking about other sets of issues that maybe don't come into play. and so being able to be in congress and take a prodder assessment of -- prodder assessment -- broader assessment, that's not something necessarily that a court can review in its constitutional analysis of a specific case. so to the benefit of congress, we can sort of take the broad view, and i think it will be important for us to hold hearings and figure out, i think there's a lot more data thanks to google and microsoft for providing transparent is si. i think it'll be great to have everyone figure out kind of how location data is being disclosed and what the kind of standards are across the spectrum. because as jason was saying, it really differs based on where you are. so i look forward to that because i think it is a different analysis, and the third party doctrine, i think the courts may take a different tack, but congress is looking at the constitutional requirement and how courts are reviewing, but also what other factors play into that. >> so, david, i wanted to ask you from google's perspective, the analysis leading to the third party doctrine was this notion that, well, if you shared it with some third party, you must not consider it that private. and from your perspective or thinking about your users, is it your expectation that users feel once google has access to our information, we're giving up our privacy in it? does that third party doctrine make sense? >> yes, so, you know, we don't believe that the third party doctrine diminishes fourth amendment interests in the content. i think that's something we ought to hone in on. the case that you cited, united states v. miller, dealt with deposit slips and checks, i think, bank records. and in the other case, smith v. maryland, it dealt with dow numbers that were chronicled by pen registers. but in both cases the court talked about the sanctity of conversation meaning, you know, communications, content. and we're careful to distinguish these two cases. and this was something that was expounded upon in the first decision and also the second decision when the court was focusing specifically on e-mail service providers. and i think what the court was saying there, echoing what the supreme court had said at this, is that content is different. and that simply because a service provider merely has access to communications, that doesn't extinguish or diminish the privacy enters that eyeses have under the fourth amendment in terms of the privacy of their communications. and the court, you know, focused too on this issue of automated processing for viruses, spam, malware and even child pornography. there's an argument that was raised, these service providers are performing these functions, users are on notice that the content, that their content is not sacrosanct. therefore, their expectations and privacy are diminished, and the court rejected that argument. what the court did say is that there might be circumstances if there is a blanket policy of monitoring auditing or inspecting the contents and communications that's performed not in an automated way, but by human beings or administrators, those are circumstances where people were on notice, and that's certainly in the case of corporate e-mail that their expectations of privacy might bety marijuanad. but -- be diminished. so notwithstanding a third party doctrine, i think our users and others have very significant fourth amendment interest in the private of the content of their communications. >> thank you. so, greg, from the advocacy i perspective, mentioned that the court distinguished the third party doctrine in that situation we mails, but do you feel that the existence of this doctrine means that it is better, more productive to seek change in the standards through congress, or equally through the courts because we may be able to distinguish that doctrine away? >> so pick up the phone, you make a phone call. to make the call, you have to entrust your communication to the phone company, and yet there's a warrant requirement to intercept that phone call. write a letter, put it in the envelope, send it through the mail. you have entrusted your communication to the postal service. law enforcement needs a warrant for that. it makes sense in the digital age that when you entrust your e-mail to your provider to get it to somebody else, there ought to be a warrant requirement for that as well. there's a significant advantage, though, in having congress erase any doubts about whether there is a warrant requirement or not. and, first, it erases the doubt which is a very good thing instead of having the courts go through it, but it also gives congress a chance to think about what jason was saying earlier, to think about what are the exceptions that we're going to have to the warrant requirement? current law includes exceptions like for emergencies. and the gps act and the other location-based bills including the congresswoman's include exceptions for missing children, and there are going to need to be other exceptions because there are times when you will want law enforcement to be able to locate a person without meeting a warrant's standard. the advantage of having congress do that is they can think about those exceptions and legislate them after debate rather than having to go through decades of litigation to get to the right place. >> thank you. so, jason, from a law enforcement perspective would you support revisiting the third party doctrine? >> well, let me say i'm glad greg's sitting down, because i agree with, like, 99% of what you just said, and i agree with 100% of what david said. the distinct is critical between content and noncontent. just as if you store your personal wrongings in a u-haul storage center, you retain a reasonable expectation of privacy in the contents of your belongings, even though they're stored at a third party. i think users, um, who send their e-mail through google, yahoo!, microsoft, believe that they maintain an expectation of privacy in the content of their communication. so when you talk about the third party doctrine, as david alluded to, the content/noncontent distinction is important. sec, and since i sort of dissed the construction of the jones case, i'll praise it in a way too. justice alito had a great line in which he said that these kinds of line drawings and this kind of balancing between privacy and public safety and the needs of industry are best done by the legislative branch and not by the courts, and i think the way the law has developed when it comes to site location and content ill sates -- illustrates that this kind of line drawing and, you know, these kinds of trade-offs that we have to make in our society between individuals' privacy and public safety and the needs of industry and the need to have an innovative, dynamic and free internet, those lines, courts are not equipped to draw. and drawing them case by case is not helpful to anybody and results in the confusion in the legal landscape we're all dealing with every day. so i think this is a case that screams out for legislation. you know, greg ghei some example -- gave some examples of everyday content. let me give you exampled of everyday transmission of noncontent. before you got here today, maybe you made a phone call from the land line if your house, which is your most protected space constitutionally. you went to an atm machine, you went to the tore and wrote a check, you went to starbucks and paid with a credit card. you signed in two or three times when you came into this building. all of that information is -- i'm not suggesting it's nearly as complete a picture in realtime that you might get from gps and a p cell phone, but all of that information is information about your movements today, during a three-hour period today, and all of that information is noncontent information held by third party providers that the government can get with a subpoena. not reasonable suspicion, just a subpoena. and that's been the way for decades. but to get the location of a cell tower and the general vicinity of a call you made three months ago, the government needs specific facts. to be able to track your phone with exact location ability, the government needs a search warrant. the takeaway from all that is noncon tent location -- noncontent location information is already more protected than all these other types of noncontent information that you give up as you live on the grid, as we all do. that's not to say that the standard is adequate. my view is that it is, but the more important thing is that the standard be applied consistently, as i alluded to before. but the third party doctrine is so ensconced in our framework of laws, in our privacy laws, um, that we've already got a situation in which electronic information about your location, the government has to meet a higher standard. you know, it's up to congress whether -- to decide whether that standard's to be made even higher than all the ways we provide third party records about our movements and transactions to other third parties. it may stun some of you to know that the government can send a speak ma to your bank and find out about everything transaction you've done in the last five years. provided you not committing bank fraud, you're not worried about that. but that kind of information is attainable from a third party. if the third party doctrine, as it's been interpreted certainly in that context, was gutted by the courts or by congress, that would have a crippling effect on the ability to investigate crimes. the fact is we communicate information about what we do and where we do it and how we do it from the moment we leave our house to the moment we return. and while i agree that the electronic trail that leave from our phones is more invasive and should be subject to a higher standard than these other examples i gave, they are still not content, and content deserves the highest degree of protection, this noncontent that we leave through our cell phones, i think, is absolutely deserving of higher protection than the credit card transaction at starbucks this morning but is not deserving of the same protection as content which is truly, you know, the most consciously protected -- constitutionally protected area. what we say, what we write, what we communicate. that is deserving of the highest degree of approximate. >> okay. so i want to go back through the panel one more time, and then i'm going to open it up to questions from the audience. but turning back here to greg, i did want to ask you a bit, we had talked a little earlier about the doj testimony last month ahead of the office of legal policy talking about the possibility of a warrant for content standard. and i want to ask you if you would highlight some of the key areas of agreement that you saw there with the doj testimony with what ddp is seeking and some of the key remaining areas of disagreement. >> where we agree is that the distinctions in current law that make it so that e-mail older than 180 days old is subject only to a subpoena standard, that doj reads the statute to say that there's a distinct between opened and unopened e-mail less than 180 days, that those distinctions make no sense today. we agree. we agree on that. i think where the one major disagreement -- i'm sorry, and we also agree on what i described earlier as the corporate e-mail issue. when the investigators go directly to a target of investigation seeking its records for a civil investigation, they should be able to go with a subpoena, subpoena the records of the corporation. where we disagree is when the civil investigative body is conducting their civil investigation, and they want to go to the provider, to the third party provider with a subpoena to get your records or the records about a corporation under investigation. what doj testified was that they wanted a huge new exception to ecpa for the civil investigations so they could go to these third party providers and get your information from them. that, i think, is going to be a nonstarter. just think that one through. first, it creates all those issues about the provider not knowing what's relevant and what isn't to the investigation and just turning over everything. turn over all the employees' personal e-mails in response to that request. i mean, it's a huge privacy problem, and it's a huge business trade secret problem. i mean, you don't want your secrets -- hopefully, you're not storing them with a third party, but you don't want irrelevant information turned over to justice or to another investigative body. and it creates one other problem that the doj witness was not able to answer when she was asked about it. sometimes investigations can be civil and criminal at the same time that they conduct the parallel investigations, and sometimes they're just conducting a civil investigation that could lead to a criminal investigation. under doj's proposal they could start off the civilly, get all that information with a subpoena and then just dump it over to the criminal side and evade the warrant requirement altogether. >> so i'm not going underwater here, jason, you already spoke a bit about the doj testimony and can your reactions to it, but i wanted to ask you about one particular piece there. the office of legal policy said that, expressed some approval of the notion with caveats that ecpa should require law enforcement to obtain a warrant to compel disclosure of, quote, stored e-mail and similar stored content information from a service provider. my question is this phrase, "similar stored content information," should we understand from that likely that's in the cloud? i know you're not speaking on behalf of the justice department officially. >> i took that to mean content in electronic forms; text message, facebook messages. all those things should be deserving of the same degree of protection regardless of what actual medium of communication was used to send them. >> so fully addressing the warrant for content standard. >> yeah. >> thank you. okay. so i wanted to switch topics here and ask david and lisa a little bit more about transparency which is a topic that somebody alluded to a little bit earlier, and, david, i believe google released the most recent vexer of its transparency report trying to help show the scope of this issue in january. it's been doing this since 2010, and just last month microsoft now published a similar type of report. so if you could tell us a little more about what these transparency reports show, why google is making a point of doing this. >> sure, yeah. we released the fist iteration of our transparency report in 2010, and we're certainly gratified to see now other companies like microsoft, linkedin, twitter, drop box, sonic net all issuing their own versions of their transparency reports and building up some of the work that we've done. over the three-plus years since we first released our transparency report, government requests for user data issued to google in the criminal context has increased 136%. we recognize that governments have legitimate needs for this data, but we also think it's important for our users to have information about the volume and type of requests that we receive, and the circumstances under which we might push back against some of these requests. you know, our posture in terms of how we respond and what we provide when we get these sorts of requests. we're hopeful that our transparency report is going to inform the broader debate about ecpa by providing real data behind it. and so, sharon, you were alluding to, you know, in 2013 alone we've really been focusing on how to make this better. and some of the things that of we have done, i think, were in response to issues that had been raised. of we're always interested in hearing from the broader public about ways we can increase transparency in terms of government requests. so on january 23rd for the first time we provided data about the types of requests that we're receiving under ecpa using the various legal processes available to government entities. so in the second half of 2012 if we disclosed 68% of the requests we received, three were subpoenas, the remaining 10% were court orders that also actually included legal processes that were a little bit more difficult to cat freeze. and then on data privacy on the 28th of january, we issued a detailed user faq so that users could understand what is google thinking when they get a request, what type of data do they provide, what are the circumstances under which they wouldn't provide data? and then providing very sort of granular data about the types of data we might disclose that's related to gmail depending on whether we got a search warrant or a court order. and then most recently, on the 5th of march, we disclosed -- albeit in broad strokes -- the number of national security letters we've received and the number of affected user accounts. and that's something i think we're going to be publishing on an annual basis. so going forward, i mean, we are looking for ways to improve the ways we communicate to our users, you know, about this issue and to give an understanding to the broader public about, you know, what this issue means and its implications for updating ecpa. >> thank you. lisa, i wanted to ask you about transparency too. to what expent can congress play a role here, maybe calling for more reporting, getting a better handle on the scope of how much these tools are really being used? >> i think it's going to be an important question for the hearings to bring witnesses to the industry and hear kind of what the practical application is of the current framework because it's not so clear from the text of the statute that, how it's being applied right now. so it really will be important to assess that. so i think that that's something that's naturally, um, ripe for hearings. and i think that, um, you know, this is a careful balance of what we are asking industry, the third party providers, and we will have to kind of have that conversation about what elements will be important for requiring government when they're seeking disclosure. so i think it's really exciting that there is a bipartisan interest if having that conversation, and i think that the series of hearings i think we'll see in the house and senate will be fruitful to exploring that. >> jason, you want to -- >> i just want to just piggyback on something dave and lisa just said. i think the reports are great, and i think it's great other companies have followed google's lead. if you look at the data from those reports, though, i think they're useful in a number of ways informing the debate, and one way is to help put in perspective what we're talking about. the microsoft report that came out last month reflects, among other things, that law enforcement requests from the united states, state, local, federal, involved approximately .02 percent of all users of microsoft services. and the last data i looked at for google, this is from 2011, and approximately .0058% of all registered google users had their accounts affected by a law enforcement request from any u.s. law enforcement agency, local, state or federal. by contrast, 100% of american and overseas internet users are at risk from identity thieves. and criminals that threaten their privacy every time they turn on their computers. so i think as lisa said, there are no absolutes here. any decision we make, any line that congress draws in creating a standard for content, location information and related issues will have some corresponding trade-off. if the standards are really high so they're very protective of privacy or seem very protective of privacy, they will have an effect on public safety in some level because there will inevitably be cases that can't be made. in some cases privacy against criminals, people who create bot nets, people who steal identities, so privacy may end up being impacted negatively. so truly protecting privacy means that when congress draws these lines, they draw them in a way that is protective of privacy, but also protective of needs of public safety authorities to do the work they need to do to get the criminals that threaten privacy. there's similar trade-offs, and i don't want to veer off topic, but there's similar trade-offs in consumer privacy. a significant majority of americans don't want to be tracked on the internet, but there's separate data that shows a very similar percentage of americans like getting ads that are relevant to them on their cell phones and like internet services that are vital to the internet and free. and there's, obviously, some cognitive dissonance this. so even in the consumer privacy space, lines that we draw, rules that we create that govern the relationship between providers and consumers will have an impact on the free and dynamic internet. so there are no absolutes here. it's all about balancing very important interests that everybody shares. everybody wants public safety. everybody wants privacy, and everybody wants a free and dynamic and innovative internet and wants our providers like google and microsoft and others to thrive. there just are no ease is i solutions. there's no easy place to know where to draw these lines, or we would have drawn them a long time ago. >> okay, i just have to -- in limited fashion, push back against the notion we have a one-on-one balance between trade-offs on law enforcement and privacy because, certainly, constitution project in many ways has add advocated we're tag under what standards should law enforcement get the data, not that law enforcement can't. and to maybe increase the efficiency by focusing in on the real bad guys whether you are meeting some standard of showing that that's the appropriate target for getting this information. so, yes, there are trade-offs, but just pushing back on the one-on-one notion that you're either protecting privacy -- which no, i don't mean to suggest it's either/or, it's just that the practical consequence of in some cases, there will inevitably be cases where the standard is written, is placed at such a high level that some of these building blocks that you normally would be able to use lesser process to get, contents that would allow you to build up to probable cause you won't be able to get because you'll be required to have probable cause in the first place. i'm not saying it's a bad thing, i'm just saying there are consequences to where we place the lines and there are cases that inevitably will not get made, criminals that will not get caught, and there's no way around that. >> or work harder. >> right. [laughter] >> okay. so i want to open this up to questions from the audience. we're going to have -- i have two constitution project interns in the audience with microphones, and since you may have noticed, we're being filmed. and two requests of you. well, raise your hand, and i will recognize you and have the microphone brought to you, but when you do get the microphone, please identify yourself and please, actually, ask a question. all right. so -- >> i'm bob getman, i'm a privacy consultant. i want to ask about the third party doctrine. we actually have a statute that overturned the third party doctrine shortly after the miller case, and the reason few people know about it is because it's an extraordinarily weak law. a very low standard, information just has to be relevant to an ongoing information. and there are -- investigation. and there are exemptions for the state and local governments, for the cia for the sec, so the law really has very little content to it. so i want to ask questions of different people. for jason, if congress was seriously or considering changing the third party doctrine, what other siendz of exemptions do you think the law enforcement community would ask for, and to greg, i'd like to ask how can you argue to overturn the third party doctrine in the interest of party when all the third parties are free to take all the information they have about individuals and sell it out the back door to anyone who wants it? >> may i? >> sure. >> go for it. >> third party doctrine's a constitutional doctrine, and i think it's here for now. part of congress' role is to fill the gaps that the third party doctrine has created. and we see ecpa has one of those -- as one of those gap fillers. it needs to be strengthened, it feeds to be updated. as for the ability of companies to disclose your information without your permission, not part of the third party doctrine because it's a constitutional doctrine. but we are advocates of a baseline privacy law that would put restrictions on that. we're under no illusions that those two things are easy to accomplish. we think they are both difficult and that they ought to be tackled separately. and that's why ddp is focused on enforcement issues. there was one kind of overlap, bob, that i wanted to talk about for just a minute. and david alluded to it just a second ago. one thing that i did see in doj testimony two years ago that i did not see in the doj's testimony this year was the idea that if a company is using your communication to figure out how to market to you, that that ought to be a reason to diminish the level of statutory pryce -- privacy that attaches to your communication. they argued that two years ago they seemed to have dropped that argument this year, and i think that's an important change also. because where it goes, i mean, you know, you're typing up your gmail, and you get ads that are relevant to what you're typing in your gmail. where that argument goes is to make it so that the communications are available to law enforcement with a subpoena for content. so i think another change that we ought to focus on and, frankly, hold them to is the idea that that kind of business model does not defeat your constitutional or your statutory privacy rate. >> okay, jason, do you have your question? >> yeah. i think just on that point, i think like the storage unit at a storage facility example is helpful there too because, you know, the manager has a key and can get in in the case of emergency. that doesn't mean you give up your reasonable expectation of privacy in the stuff that's in your locker. your question's a tough one to answer because it's not so much a question of exceptions, because the kind of information, the kind of third party information, i mean, i rattled off five or six examples what an ordinary person might do in the course of the day. one was a financial transaction, one might have been parking at a place that had a security camera, signing into a building. all of those sort of broadly defined are transaction records that, you know, that third parties maintain. they're not records, of course, that the user has any control oaf. these are private papers of the company, fedex, starbucks and the credit card issuer. they pertain to a transaction that that company is a party to, and they're the party's business record, and the decision to create, store and retain them belong toss the party. they're not records that you, the customers, ever had any control over. those are sortover the classic third party records. if congress were to try to legislate a new standard to govern the third party doctrine, then the question sort of on the floor would be do you make more distinctions than are currently made among different types of third party records in right now there's the broad universe that you can get by subpoena, there's the more limited universe of third party records related to cell phone and internet usage that require a higher showing, or do you make other distinctions besides those two broad distinctions in congress were to abolish the third party doctrine in some fashion and say all third party records require a search warrant, i think it's not a question of carving out credit card records or bank records or fedex records. and i don't want say this with, you know, i'm not -- i don't think i'm prone to hyperbole. i think that that would shut down investigations of every type of crime i could possibly imagine because from white collar crimes to job exploitation to murders, those records -- not just because they establish location, but because they establish activity, who you're connected with, you know, who you wired money to, you know, who you're calling on your phone -- those records are critical to establishing who's innocent of crimes and who's suspected of being a part of a crime and, hopefully, you can prove that they are. so it's not a question of picking out piecemeal. i think really the question is are the broad distinctions we make now between cell phone and internet third party records and everybody else, is that distinction still valid, and if it's, are the standards, do we have a high enough standard for the cell phone and internet records relative to the subpoena standard for everything else. >> other questions. okay, right here up in front. >> alan butler, the electronic privacy information center. i have a question for jason and greg. i'd be interested to hear your views on whether after jones there's any principle reason to distinguish between prospective and historical records on privacy grounds, not statutory grounds. >> [inaudible] [inaudible conversations] >> do you want to start? >> i'll let you start. >> so jones, the holding was les a trespass, so that's not really relevant to your question. it's the five concurrences that sharon was talking about that are relevant. and what the, you know with, you look at justice sotomayor's concurrence, and she's saying, you know, i don't think that this third party records doctrine serves us well in the digital age. she is a wise la tee that. [laughter] latina. i think she got it right, because it's not serving us well in the digital age. and alito's concurrence was, you know, he kind of skirted what i think would be the big question if his concurrence was the majority opinion which is how many days, how many days of tracking triggers the warrant requirement? and a lot of people don't know as this case was moving up, the lower court called it a mosaic theory where you're pulling together different pieces of data to create a picture of this person's activities. i think when you look at it objectively, it shouldn't matter whether the tracking is prospective or retrospective. when we were looking at this at digital due process or what became the digital due process coalition and one of the advocates of making a distinction came around when he thought about his own activities, he said, you know, i go running pretty much every day. i take pretty much the same route. if you look back on my 30 days of running activities, you would know where i was going to be for the next 30 days at that time when i go running. and ultimately came around and said these two kinds of data are equally revealing, and we ought to have a warrant for both. >> so let me ask, answer your question with a question. so, um, this is not the only area of the law or even cell phone--related law where the law makes a distinct between historical and prospective. so you can or i can -- i can't anymore, but the government can get your cell, your transaction records of calls you've made on your cell phone for the last 30, 60, 90 days with a subpoena. but to get your calls going forward, who it is you're going to be calling from this moment on for the next 30 days, they have to get a pen register which requires a higher showing. do you think there's a distinction in terms of your activity between the stuff being able to subpoena or who you're calling now which could be used to develop a picture of your movements going forward. i'm just curious s that a distinct in your mind? >> i see the point of your question. i think that it's tricky because it depends on the view of the privacy of phone detail records which i do think is lower than location. but i don't see exactly why the prospective/historical has any principle basis in the privacy interest. st more of -- it's more of a practical distinction. >> that's fair. as a general matter, the higher degree of intrusion, the higher degree of evidentiary burden the government has to meet. so for the lowest level which is, you know, your calling records for your cell phone for the historical past, the government can get a subpoena. but if they want to know who you're calling for the next 30 days, they've got to get a pen register which requires more, except in one of the districts that i was in, but it requires more. if they want to do more than that, they want actually get your cell site information, they've got to do more. and if they want to find out who you're talking to -- not who you're talking to, but what you're saying, they have to get a wiretap which requires even more. so there's these degrees that are made at various stages of intrusion. i think the point that greg raised is right on, that the hardest question post-jones is when does, when does a period of monitoring become so invasive and pervasive that in the court's view would require a warrant? i'll tell you just as a former law enforcement officer, that's an extraordinarily challenging -- this is an extraordinarily challenging period for law enforcement officers who are seeking to use these techniques, and that's why post-jones there's yet another will be why i would say the best practice is get a warrant, and you don't have to worry about it. because, you know, when you start out doing your tracking, you know, these slap-on trackers have a battery rife of anywhere from 48 hours to seven days depending on the technology. and you'll have to replace them. but you may start out your investigation thinking you're going to track the guy for two days, and next thing you know you look up, and it's two weeks or three weeks or four weeks, and at some point you cross the line into pervasive monitoring territory. that's a very difficult doctrine to apply in practice for cops and agents. >> ah, so that means congress, they could legislate that answer rather than rg the courts figure it out, you know? but jason was talking about the phone records. interestingly, e-mail is the opposite. it doesn't make a lot of sense. if they want historical e-mail to-from information, they have to get a order based on the intermediate level, it's relevant and material -- >> yeah. >> -- and the intermediate level. but if they want realtime who are you e-mailing and who e-mailed you, it's mere certified relevance which is a much lower standard. they don't have to show specific and articulable facts except in that one district that jason was practicing in. >> right. >> so it's kind of not accurate to say that the statute always requires a higher standard for realtime versus stored. >> yeah. but i think that's an excellent point. that's an anomaly and one that i think is, it should be fixed also. by raising the standards -- [laughter] >> that's a topic for next week's panel. but i think that is another illustration of how -- >> a few minutes left in this discussion. you can see the rest of it in the c-span video library at c-span.org. we're going live now as republican senator rob portman sits down for an interview with politico's chief correspondent ben white. >> this is the inaugural morning breakfast with morning money, which as probably most of you know is our morning newsletter written by ben white. we're very, very proud of ben at politico, because he was one of the first people to take us in a whole new direction after we launched in 2007. we were known pretty quickly as being a destination news organization for news of national politics, news of congress. ben was really the first person to help us broaden our ambitions to what it currently is, we want to be washington's dominant policy organization as well as a dominant political news organization. and ben, who lives up in new york city, has shown us how that can be done with his morning money. as be of you know, it's become must-read both in washington and in new york for news about the intersection of the federal government and the world of finance and wall street. so ben is going to lead us in a conversation this morning with senator rob portman who we're delighted has joined us, is joining us. a couple of things for those watching live, a couple orders of business. first, tweet your questions to hashtag morningmoney. ben will be that tracking them a tablet on stage. second, we'll be doing mobile polling throughout the event that will be featured on the screens surrounding our stage, so keep an eye on that. the cards on your chairs explain how to participate in the polling, so be sure to cast your vote. with all that, i'd like to thank our sponsor in this morning and an organization that has done quite a bit of collaboration with politico. we're very grateful and very pleased to thank the peter j. peterson foundation for their partnership. we're delighted they're making the series possible, and we look forward to a great year together. i'd like to introduce michael peterson who is the president and chief operating officer to say a few words. michael, thank you. >> thank you. good morning. thank you all for being here. it's my pleasure to welcome you to the inaugural morning money breakfast series event, and we're very proud to be one of the presenting sponsors today. our mission at the peterson foundation is to raise awareness and accelerate action on america's long-term fiscal challenges. so morning money and politico are perfect partners for us, because ben white every day is bringing to light these issues and how they affect washington's agenda. over the past few years, there's been a lot of talk about debt and deficits. unfortunately, the action so far has been insufficient. they've made some progress, we've seen some reforms. however, they've really not yet tackled the long-term structural challenges that are at the root of the problem. if you look from just a few years ago before all these reforms, america was projected to reach a stagger debt to gdp level up 200% in 2035. following all of these reforms, putting them all together, we reach that same level just five years later, in 2040. i don't know about you, but a slight delay in an economic disaster is not comforting to me or sufficient. so we need to do a lot more. we may be eternal optimists, but we think they can make some progress this year if the parties can come together to do something. so that's why we're thrilled to have senator portman here today. he's seen the budget from the house budget committee, from omb and the senate budget committee, so if anything's going to happen, it's going to involve the handiwork of senator portedman, so we're -- portman, so we're thrilled to hear what we had to say. i want to thank john and ben and i think mike allen's here today as well and senator portman especially for spending time with us today. back to you, john, thank you. [applause] >> thank you, michael, and well said. once again, on behalf of all of us at politico including our publisher, robertal britton, thanks a lot. please turn your cell phones on mute. we'd appreciate that. and now i'd like to welcome the author of morning money, ben white. [applause] and, of course, our special guest, senator rob portman. he's a member of both the senate finance and budget committees. [applause] senator, how are you? >> good to have you, thank you. the senator's on a pretty tight schedule, get him out of here around 9:00 today, so we're going to move as fast as we can. i want to thank all of you for coming out on d.c.'s one day of spring. you get 90 degrees tomorrow, so enjoy it while it lasts. [laughter] this is immigration week in washington to a degree. i want to get to the debt and the deficit and the economy after we ask a quick question of the senator, and that is what do you think the prospects are for getting an immigration deal done? there are some impediments that seem to have popped up right now, you know, a lot of nitty-gritty arguing on the details of this legislation. are we going to get immigration reform through the senate and through the house and signed into law this year? >> i think it'll get through the senate. i know there were a lot of stories this morning about the fact that there are some additional issues about the guest worker program and, therefore, there might be a delay, but i don't think that's necessarily a bad sign. i think it's an indication that the gang of eight working on it in the senate is trying to come up with something that can be broadly supported. so, no, i think there's a good prospect. i think most of the issues including the issues surrounding the so-called dream kids and what might happen with regard to employer sanctions fees that would be strengthened with e-verify and the border security, certainly, and i would even say some of the issues regarding h-1b visas and particularly the notion of stapling a green card to a diploma, s.t.e.m. graduates, there's a broad consensus on a lot of those. guest worker program has had, as you know, more controversy associated with it, it's more labor and business trying to work something out. my understanding is they're very close, and they're working on the details of that. and as for the folks who are here illegally, you know, some sort of a pathway to some sort of legal status that, obviously, is one where there's less consensus. but i think something will pass the senate this year. the question is whether that can be reconciled so it passes the house, and then, of course, getting it through the process to the president. so i'm, i'm encouraged. i think in this case the president seems to want to have a result. i think up to now the politics have worked pretty well for him, and he really hasn't engaged. he did not send forward his proposal that he promised his first year in office, but i'm hopeful that the political calculation has changed now, and he realizes it's a problem we need to solve. >> do you think it's, would be helpful for him to be more involved, or is it the right approach now for him to not put forward specific proposals, let the process work itself out the way it is right now and not put republicans in the position of caving to whatever it is that he wants? is he handling the politics of this correctly right now? >> i think, i think with the progress that they're making as a bipartisan group, it's better for him to support the process and not do what he did as a u.s. senator which is to support what i think ted kennedy and john mccain and others, poison pill amendments at the last minute, particularly on the labor side, but rather to let this work itself through the senate. but the president will be needed just as he will be needed on our next topic we're going to talk about, i hope, which is the budget. >> yeah. >> to provide support and coffer for democrats to be able to come to a resolution. and that's a key role for the president as well as talking to the right people about the importance of it. >> okay. let's talk about the president's budget and the economy. i first want to ask you about the status of the economic recovery right now. we've got a pretty bad number from nfib this morning on small business confidence. we had a very bad jobs number on friday. some other indications that we might be heading towards another spring swoon or stall, and there is -- i sort of like to think of these breakfast meetings now as translation between new york and washington. and as you go around on wall street and talk to folks, even fiscal conservatives there, there's some sense that it would be better for washington to take a pause on these battles and, you know, the payroll tax cut if that could be, you know, reinstated, if you could get rid of the sequester, get rid of some of the austerity that is now being placed on top of the economy, let the recovery take more hold and then get into deeper long-term deficit and debt reduction reforms with social security and medicare. is there an argument that there should just be a truce on some of these issues and washington to get off the back of the economy, or can we do a lot more deficit and debt reduction right now in your view and not harm the economic recovery? >> yeah, i would disagree with you, ben, and i think -- so i agree with the latter point, which is that a dealing with this long-term debt problem we have is crucial to getting the economy moving. and i'd say that based on conversations in ohio the last couple weeks, having gone to a few different companies and talked to business leaders. they're looking at the economy, but also, as you say, folks on wall street, investors and is on. wondering why washington can't get with its act together. and it is having a negative impact on the economy today. there are plenty of economics out there including the reinhart study you know about that says we're down about a million jobs or more this year alone because of our debt being at these unsustainable levels. really 100% of our economy when you include -- [inaudible] so, no, we absolutely have to come up with a plan to deal with this problem. we risk another downgrade. we are right now probably the least dirty shifter in the closet -- shirt in the closet for a while globally, but that's not something you want to depend on in order to prop up our treasuries and prop up our economy and keep interest rates relatively low through aggressive action by the fed that will eventually have to be dealt with. so i'm very concerned that if we don't deal with these issues that we will not sew the robust recovery we all open for. we're living through the weakest economic recovery since the great depression by any measure, jobs, gdp. i know people were kind of excited until last month, but i really continue to have serious problems. certainly, you have to have concerns. i mean, what we saw in that report that concerned me the most was the fact that people were dropping out of the work force. so we gain 88,000 jobs, but a half million people leave the work force? we now have the lowest labor participation rate in this country for three decades. that's a concern because our economy cannot be efficient with people leaving the work force or working part-time. a lot of folks have stopped looking for work, but also a lot of people underemployed. so, you know, if you're on the first or second or third rung of the ladder trying to get to the second, third or fourth rung, you're having a hard time finding a job right now. and that needs to change. and the only way it's going to change, in my view, is if washington provides some certainty to the economy and deals with these issues to allow the risk taking to happen, the investment to happen, to allow the employment to start to come back. we just haven't seen it yet. >> let's talk a little by about the budget from the president that we expect to get tomorrow. according to reports in politico and elsewhere, that budget is going to include chain cpi provision that would reduce the cost of living increases for social security recipients. it would include some medicare cuts, we don't know exactly what they're going to be in addition to the revenues that the president wants. hasn't he reached out to republicans in a way that you've called on him to do in the past to show some leadership on budget--relateed -- budget-related issues? is there a possibility that that move on his part could reopen negotiations toward a grand bargain? is still a possibility for a grand bargain, and has the president moved the ball into republicans' court with some con concessions including these cuts in entitlement programs that already are giving a lot of problems on the left? >> first, i haven't seen the budget yet, none of us have, but i'm hopeful it will have some reforms that are necessary for these incredibly important but totally unsustainable spite element programs. they won't be there for future generations unless we do that. the social security fund is going belly up in 2016, there'll be a 25% cut to social security benefits by 2033 and, by the way, folks who are retiring today are are likely to experience that just 20 years from now. so, you know, these programs are in huge trouble. social security itself has a deficit this year of $77 billion. so this notion that, you know, everything's fine, it's not accurate. and so the president needs to step forward and explain this to the american people so the people understand these programs are trouble. not just for future generations, but for this generation. on medicare, you know, folks are putting about a dollar in for every two dollars they get back in he terms of the hi tax and or premiums that they pay into medicare. so this is something that needs to be talked about. medicare program is already running in deficit. the trust fund, it goes belly up in about 2024, i'm told, about 75% of that is from general revenues already. and, you know, we've got these incredible debts and deficits. so i have to pick up the briefing this morning at your seat, if you go to the first chart that i found which is called future u.s. debt held by the -- [inaudible] unsustainable levels, current policies remain unchanged. this is where we're looking. and i'm glad that, michael, you did this in red. [laughter] this is about red ink. and so talk about your own budget at home or your business, this is, you know, continuing to run b balanced budgets that are not balanced, of that have these historic deficits leading up to a record debt results in economic collapse. it's the most predictable economic crisis in our nation's history. so i hope the president's budget that he puts out tomorrow addresses these issues. if it looks like what he talked about at year end with john boehner, it will be inadequate for the challenge. in other words, it won't be up to the challenge that we have, because it will, you know, not do enough on the spending side, and it'll do way too much on the tax side at a time, as you said earlier, when we have a very fragile economic recovery. but i'm hopeful, and i do think this it's a good sign that the president has reached out. i think the president has an opportunity to do two things he uniquely can do. one is to talk to the american people about this. including talking about the fact that the problem is spending, not taxes. taxes as a percent of our economy, the burden of taxes on the economy will by 2015, which is a couple years from now, be higher than it has been on average for the past 50 years, and it's been pretty steady. so the tax burden is decreasing. and, you know, that's not me talking, that's the congressional budget office, a nonpartisan group that analyzes this. the issue is spending. spending will be way beyond historical growth, and, in fact, if we don't do something -- mike, we may have this chart here, but three decades from now spending gets to 39% of gdp according to the cbo as opposed to the historic 20%. no one has proposed taxes that high. >> so is your view that there's no room for any more revenue, any budget deal that's ultimately made between the white house and republicans on capitol hill, that the only thing that can be done is further spending cuts, no additional revenues which the white house has said is absolutely necessary for them to agree to these structural entitle element reforms? is there no room for additional revenue? >> i think the consensus, i hope, in the town is we've got to get this economy moving, we have to deal with the debt and deficit. they are connected, as i said earlier. we're not going to have the strong economic recovery we hoped for unless we deal with these problems. people are not going to make the investments, take the risk. conversely, unless we get this economy moving, we're not going to be able to deal with the deep fiscal hole that washington has dug for itself. you can't do it, frankly, on spending cuts alone. you have to do it with economic growth and spending cuts. so it is necessary to do tax reform which is pro-growth which gives the economy a shot in the arm. and as you know, i'm a big advocate of tax reform even in absence of the deficit issues because our code so antiquated and complicated, and it puts us at a competitive disadvantage. but we have to reform the corporate and individual tax code as a result of this. the president's talked about that. the chairman of both the ways and means and finance committees had an op-ed in the -- >> tax reform is not dead. >> tax reform is not dead, i love that. >> which is our next question, which is, is tax reform dead? >> no. >> corporate interests to like the deductions that they have now, some of the larger corporate groups, you know, will defend their tax preferences to the end. and when you get to the nitty-gritty of trying to decide flattened the code and. [audio difficulty] >> i mean, this is an opportunity to help grow the economy which is -- there are a lot of folks out there -- [inaudible] [audio difficulty] every single one we now have the highest -- so the corporate community better get their act together and come to washington not to say don't touch my breakfast, but to say you must reform -- [inaudible] the loss of jobs. ultimately, it comes down to workers. the congressional budge office has done analysis of the tax reform which i support which is broaden the base. that means getting rid of a lot of the underbrush over the years, and they have said that if you do that, that over 70% of the benefit goes to the workers, and it goes to the workers in terms of higher wages, better benefits. it's not about the board rooms. this is about earn couraging -- encouraging companies to invest and creating opportunities for those workers right now who are competing with one hand tied behind their back because of our tax code being so out of date. we have to deal with not just lowering the rates, but on the international side we have to come up with a situation that allows the between 1.5 and $2 trillion that's locked up overseas back into this country to invest in jobs and economic growth. and everybody should be for that. and there's a way to do that through corporate tax reform. i have a proposal that gets the rate to 25%, it has an international system that's competitive that'll bring back a lot of that capital. this is, you know, part of the answer to deficit reduction but, again, even in the absence of these historic debts and deficits, we would want to do this to give the economy a shot in the arm. >> this is, obviously, an economic briefing, we're not going to focus on gay marriage and the senator's stance on that and his historic shift to support for that, but it's an economic issue as well, and it's a deficit reduction issue as well. i wonder if you've looked at the studies that suggest legalizing same-sex unions nationally somewhere between 10 million and 100 million a year in additional federal revenues, there's also state level a lot of revenue comes in from marriage licenses, from spending around marriages. is there an economic argument to be made for allowing same-sex unions nationally in. >> there may be. i, you know, that's not why i made my decision, to be honest. but i've heard that, and i know in new york they've made a case for it. but i'm just not familiar with that. >> okay, very good. i want to bring in our own mike allen right now who is -- we're very thankful for his presence and joining us for this morning money briefing, and he is going to ask the senator a couple of questions. ladies and gentlemen, mike allen. >> good morning. [applause] senator, appreciate it. congratulations on the debut, and politico playbook is big on birthdays, and today is the birthday of jacob white, he's 7 today -- [applause] >> so thank you to the peter g. peterson foundation for making this possible, michael peterson, mr. president, for being here. we're going today a quick, rapid round, senator. first, a question from my boss, john harris, editor-in-chief. when the president releases his budget tomorrow, is it important for him to say explicitly that these spite element cuts that are bake -- entitlement cuts that are baked into his budget are there because it's the right thing to do? he's been saying so far look what i've done for republicans. should the president say to his party, no, this is the right thing to do? >> absolutely. we talked earlier about the unique role the president has in terms of communicating to the american people. he has the megaphone. individual members of congress have a role to play. of i try to do it back home. i had a teletown hall meeting yesterday where i talked about in this issue and talked about some of the realities of not dealing with it, what it'll mean for the economy -- >> so you're going to look for him to say what? >> look for him to explain to the american people that we have to address this problem in order to save and preserve these programs, and second he has to provide -- and only he can do it -- the kind of encouragement and cover to democratic members of congress to take these steps. that's been historically the only way we've been able to address these issues. back in 983, which is really the last time there was any significant entitlement reform, it was tip o'neill who provided that cover and ronald reagan likewise for republicans, and they worked together. and, you know, the two of them coming together and being able to jump off the cliff together holding hands enabled us politically to come to a result that helped save at that point social security between that time and now. it's time to do it again. and by the way, ronald reagan in 1983 was criticized by some republicans for taking on social security because they thought this would be a tough political issue for the republican party. typically, it has been. the third rail of american politics, meaning the electrified rail in the new york subway system. ronald reagan did what we thought was the right thing for the american people, and a year later in 1984 he ran for re-election. he won every state but minnesota. and by the way, it wasn't a hit call issue for democrats either because this was the right thing for the country, communicated that to their constituents, and in the end we were able to preserve a vital program for our seniors. >> you politico readers saw morning that senator mitch mcconnell is joining the threat for a filibuster on guns. some of these gun measures are being described in the press as a 90% issue. senator portman, are you worried about the optics of your party being extremely advise my from the very top on the wrong side of what's being described as a 90% issue? >> i haven't had a chance to talk to my colleagues yet because we're just back in session today, but i think that comment from the leader was as it relates to a particular kind of gun control measure. in other words, the schumer-reid approach. and so we'll see what happens. >> well, how do you feel about a republican filibuster of a gun bill? >> well, there are two kinds of filibusters, as you know. one is on a motion to proceed which i think this is about, and the other is on the bill itself. so we'll see. again, i think -- >> how do you feel about a filibuster on a motioning to proceed on gun -- >> well, i'm not one of the signatories to the letter because i want to see what the proposals are before i make that decision, and i think that's probably the right approach. you know, let's see what's being proposed. i mean, as you know, i'm a strong defender of the second amendment. i have an a rating from the nra, i'm proud of that. i also think with regard to background checks, there are some problems with the current system. and specifically, there are a lot of states that are not providing the mental health information that's needed to be able to have a system that actually screens people who shouldn't be getting a gun with mental health histories. so there are some way that is the current system can be improved and laws can be tightened that are currently in existence, and i think that's something that most people acknowledge on all sides of the issue. >> have you said if you own a gun? >> only 14. >> only 14. [laughter] >> i'm not going to tell you what they are though. [laughter] i have a gun safe though. no, i have a long tradition of this. my great grandfather who was an immigrant came to this country, and he loved hunting and fishing and about have access to it in europe. he came from switzerland. and he was a poor kid, and so he hunted all his life. and the portman family lore is that he died of a heart attack many a duck blind at age 80 with a gun across his lap. they found him, you know, frozen at the end of the day with a smile on his face. [laughter] and i have that gun. and it's passed along to my grandfather, my father, me, my kids have now used that gun, i shot a duck with it on lake erie in ohio last full. so i've grown up with guns as have my kids, and the it's a part of our family tradition as it is with many families. so i believe that gun safety is incredibly important. i certainly instilled that in my kids. but, no, this is part of what for many americans is part of our heritage and history. >> since you made your statement, what have you concluded about where the republican party is on gay marriage? do you think they sort of get it, or do you think there's a ways to go? >> mixed. and that's understandable. and i respect people have a different point of view on it. after all, i had a different point of view until very recently. but, no, it's a pixed reaction. you know -- mixed reaction. i was talking earlier with ben about the economic impact which is, frankly, not something i considered. i'm sure there are some economic impacts, some other political impacts of this, but for me, this was not a political decision. >> how worried are you, though, about the politics of it? >> i'm not terrifically worried about it. you know, i think for most americans the top issue is what we're talking about here today which is jobs and the economy, how to get this economy moving in a way that provides opportunity. and then secondarily, but related, is the debt and deficit which we're talking about thanks to pete peterson and michael and others providing us information that i hope the president will now start to provide to the american people. those are the top issues by far. so i think sometimes we forget that when we're talking about these other issues. they're all important, but what's going to drive politics, it seems to me, is what people care about both, and that tends to be jobs and the economy. >> my penultimate question, and i think ben is going to bring you into the conversation. one of the hats that you ware is -- you wear is you're vice chair for the republican committee. what are you hearing as you help with recruiting, help with finance? what are you hearing about the cycle ahead? are people worried or encouraged? >> republicans are encouraged in the senate, and there's an obvious reason for that which is that the numbers tend to favor republicans. we have 14 republicans up for re-election, 21 democrat seats are up, and of the 14 republicans, only one is in a blue state, a democrat state, that would be susan collins who wop handily last time -- who won handily last time and is running again. romney red states, six of whom barack obama got less than 42% of the vote. so it's an opportunity, obviously. midterm elections after a re-election as of the the president often tends to be a good opportunity for the opposition, so for us it should be a good year. but what i'm hearing, you know, is what we talked about earlier, people are concerned about the economy, the direction of the country. they see us careening down this path without any resolution, and they're looking for new leadership. and so they think the senate by adding republican seats, possibly even getting the majority, would help to provide over the next couple of years a little more discipline on the fiscal side and then, ultimately, would help to provide some momentum for 2016. >>, so senator, today we're 19 months out. what are the chances the republicans will get the majority in the senate? >> i think they're pretty good. again, i don't want to suggest that things respect going to change a lot in the next -- aren't going to change a lot in the next 18 months, they always do. but given the numbers i just talked to you about, i think the chances are pretty good. i think no matter what it's likely the republicans will add seats in the senate. and in the house i think we'll do well also. 94% of the republican-held seats in the house were districts won by mitt romney. so i know there's been some speculation about how the democrats are going to make inroads maybe, but i think it'd be tough and, second, if you look historically at the midterm after the reelect of a president, it tends to help the opposition party which would be the republicans this time around. by the way, the average loss in the senate is 6.6 seats since 1906. george bush lost six, ronald reagan lost eight, so republicans have seen that. and in the house, you know, typically republicans, again -- this is conventional wisdom which may not apply anymore -- would tend to pick up seats after the first re-election. so after a president's been reelected. so it should be a good year in the house. >> and, senator, last question. when we're talking backstage, i learned a new term. tell us what a card ride is, card ride. [laughter] what is that? >> credit card ride. so i'm a bicycler, i ride bikes, rode bikes and mountain bikes, so the ultimate freedom is you take off in your road bike, and you have a credit card with you. >> and that's it? >> and that's it. you take off for a couple days. i know it sounds sort of weird, but i'm planning one for this summer where you just take off on the country roads of ohio with a few friends and, hopefully, your credit card works at the motel. [laughter] otherwise, it's really uncomfortable. and, you know, hopefully you make it home. >> senator, thanks for a great conversation. [laughter] appreciate it. and thanks for letting me join. thank you. [applause] >> sounds like things i did in my days at kenyon college -- >> ohio. >> we didn't have credit cards with us, we just rode around. .. >> sometime in the spring will hit the treasury borrowing limit and make the treasury will have until july or august to do extraordinary measures to continue to fund our borrowing before we run over the debt limit and possibly the fault. there is some growing concern on wall street that we're going to have another summer where we have no agreement on how to raise the debt ceiling. republicans will demand all or for dollar spending cuts to any debt limit increase. the white house will demand new revenues in return for any spending cuts and we will be right back where we were in 2011 which is markets going haywire, losing steam on the economic recovery because we just can't raise our borrowing limits. you think will have another debt ceiling fight, and if not how do we get around? >> a great question and i think it should've been mentioned earlier, the timing of the so-called grand bargain icing, agreement with the president and republicans in congress. i think the timing is alive and i think it's crucial we get done before then to ensure we don't get into another debt ceiling crisis. because it would be detrimental to the economy. by the way, if you look at what moody's and s&p and phipps say about the debt limit, they don't just say let's not go into this, they say let's resolve the problem. in other words, sometimes on wall street, avoid conflict at all cost. that doesn't avoid issue. back and make it worse. in other words, sometimes there's this notion if we just pay for this over, it will be okay. it's not going to be okay. they are warning, including the one down great we've had is that we have to address this issue as part of this discussion. by the way if you look over the last three decades, the only thing that is ever worked is the debt limit debate. that's how we got gramm-rudman. a sequestered type proposal. it's how we got the limits in 1990s. democrats talk about favorably. it's how we got the 1997 balanced budget agreement between newt gingrich and bill clinton innocents. it was all through the debt limit discussion. so this notion we can't use the debt limit to talk about debt -- most americans don't think we got to be raising the debt limit with that deal with the underlying problem. that you at my credit card, like the credit card limits. when you reach a limit, what do you do? you don't just raise it. you have to deal with the underlying problem. i think this is an opportunity and i think the timing is pretty good. let's see what the president has in his budget. i hope it's a deal -- serious budget. his last three budgets got zero votes or republicans or democrats. maybe we can begin discussions. i hope in regular order, meeting the house and senate passed a budget. let's come together and figure how to resolve this issue. the end of july is when the debt limit actually gets fired because treasure certain extraordinary measures they can take, take us into the end of july probably. and coincide with the august work period recess, too. >> all of our summer vacations. >> it all comes together. if we miss this opportunity we will let down the american people and, frankly, we may as well put this off until 2017 because many are cynical about doing -- that would be tragic. and, frankly, we can't wait that long. think about it. another three years of the potential for financial crisis hanging over our heads. you have these investors, companies, entrepreneurs continue to be unwilling and unable to take a risk to make an investment expand. let's deal with it. let's use the debt limit as leverage, and to leverage its. >> and people think is crazy for us to continue barmore without any fight. our debt will be about $17 trillion at that point, and these are historic levels. we've never been there before. uncharted territory. we are headed towards greece unless we do something about its i hope we use this as a leverage point to get something done. >> you think there is a realistic prospect for doing the conference budget and regular order as you say during the time to do that, or are we going to wind up with a deal that has to be done between the leadership and the white house to avoid the budget reconciliation process? >> another good question. let's try regular order. there may need to be another special mechanism. i was a member of the supercommittee which turned out not to be so super. and dread that again. i think we've got to let the passage work and see what happens. if it's not moving forward, if we're not making progress than it may be necessary to take it out of the regular order let's try. this is what the american people expect. they want to understand this is not being done behind closed doors. this is being done in the open. these charge up to be other for everybody everybody to see. and the alternative, if we doing issue this year what would it look like? unless we're willing to make serious reductions in spending we are not going to change the trajectory much. if you look at the president's proposal at year-end and will be participating, one of my major concerns is that cats don't go nearly far enough to deal with the problem. we can talk about that if you like but i think there are certain measures would have to have a go at 10 years but the debt ought to be a percent of the gdp. my target would be for the public debt, gross debt, probably close to 90%. unfortunately, even under a scenario where you all of the cost savings were talking about, but let's talk about public debt, 70% i think is the minimum. what does that mean? 70% gdp would require $1.1.8 trillion in additional savings on top of all of the budget control act, on top of sequestered. from what i understand the administration is not talking about that at all. they are assumed the sequestered didn't happen, which is 1.2 trillion they're adding maybe 400 to $600 million on top of that. it meets the minimum 1.8. let's figure out what that is. that level is still historically way too high. it's much higher than simpson-bowles wanted us to get. i'm hopeful that we can also look at the spending to gdp we talked about earlier which is how you want to look at this issue in terms of the objective now is where you want the economy to be. if you look at spending, historically it's been 20% of our economy. it's out at about 22, 23%. the congressional budget office, i'm sure that senior, has indicated that spending will continue to go up to the point that three decades from now it gets to 39% instead of 20%. of gdp. 39%. nobody again has proposals to raise taxes that i. a result in us having to raise income taxes dramatically. so let's look at what the consequences of the democrats are often saying, let's do a balanced approach. let's split the difference. so instead of 39%, and instead of 19%, 20%, which is the historic average, they would like to split the difference. in other words, 1 dollar taxes for 1 dollar of spending. that gdp ratio is about, between those two, so that's about 29%. again, nobody has a proposal to raise taxes even at that level, and nobody should. we need to get at the spending problem. that's the point, which is not a balanced approach means start balancing our budget at least within to 15 years. it doesn't mean 1 dollar for new taxes on top of 1 dollar spending when the problem is been in any objective measure. that's going to be issued we will address when we see the president's budget. >> let's bring the folks in. we have one right here. >> federal rulemaking uncertainty has been cited as a negative drag on job creation. you have been one of the talking voices on improving the process to make rulemaking more accountable, more efficient. what would be your counsel to the incoming director of omb on how to improve the process going forward? >> i would talk to the incoming director if she is confirmed. i think she will be. and i think she could be influential in this regard because this group which looks at all relations is under omb. and made a subtle point that it is in my view a bipartisan opportunity here for us to look at federal rulemaking from a more transparent point of view, but also to provide more rigorous cost-benefit analysis, and insist on the least burdensome alternative being chosen, and then to bring independent agencies into the cost-benefit analysis because they are not now. i may have a little visor, but it seems to me independent indices are increasingly powerful. they are increasingly issuing rules, major roles which have a huge impact on the economy, and of independent agencies are not subject to even the simple cost-benefit analysis. so the president is talking about the spyware any things that ought to happen but he can't do it because they are independent and, therefore, by definition, have to be required to do by statute, not by executive order. so there are some things that can be done and should be done immediately. we talked about the economy earlier, and in my view the tax reform will give the economy a shot in your. another is regulatory reform. and again, there is a bipartisan way to do. i have to builds on this one, one on the broader issue of how do you do it, democrat cosponsors on each one. we have not been able to get majority leader to get this to the floor. i hope to go to the governmental affairs committee. he's a leader on this site think we can get this took me into the fourth issue. so if you're interested in that we would love to hear from you for your specific concerns and exams. this is an area where we should be able to make progress and it will help the economy. >> on the confirmation front i wanted to ask about richard cordray, your fellow ohioans who is not managed to get a confirmation vote from the full senate to be the head of the cpb. republicans, a lot of them, not including you have signed a letter saying they won't support anyone can vote for anyone for the cpb and other certain structural reforms made. do you think he should be confirmed as director of the cfpb, if you think it will be a full commit vote on him without structural changes the democrats say they won't accept? >> consumer -- it's part of dodd-frank are an number of us have major concerns about the way it's structured, including every republican has a concern about it because it's unaccountable. it has a huge impact on all of our lives. in other words, it regulates, talk about regulation. all of our consumer financial transactions. so whether you are trying to educate your kid on a college on our what you're talking about buying a car or talking about some of the consumer loan you might have, they have unbelievable power over consumers. and yet they have no accountable in terms of their budget. they are budget does not come from congress like other agencies and departments do typically. in other words, that's how the founders can set it up. we have the power of the purse in congress and you have an appropriations process. they get their money automatically from the thing. it's a percentage of the federal reserve's budget, and it's an extreme high number. and second, they have no again ability in terms of the director is not removable by the president and there is no board. you think about other financial regulator, there tends to be aboard at other commissions. so both because of the lack of accountability on the spending side and because of the lack of a candidate of leadership, i did sign a letter initially, actually others with worn -- -- elizabeth warren, it was signed by 44 of 47 republicans. now there's a new letter. i did not sign the new letter for two reasons. one, i do believe that we need to have a head of the consumer protection agency who is confirmed. i think that would be good. because i do think that we are not going to be able to repeal it. in the meantime we have to have somebody there who has the ability, since we're moving ahead with regulations, to be able to be confirmed and help make the regulations be more pro-consumer. and second, i believe i can be to a certain extent a help to try to encourage some of these reforms that are needed. i work indirectly with richard cordray, with the administration so i wrote a letter outlining that might be a good compromise your i continue to work on the issue because i think there is a way to get there. it's going to require some republicans who did sign the letter the last time to change their view based on the least indications by the administration they are willing to move forward spent i don't want to interrupt you. we're running short on time. james had a question. >> since a lot of just on saxophone, since a lot of the big corporate tax break benefit manufacturers, is it possible to

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