Transcripts For CSPAN3 Politics Public Policy Today 20140718

Things have changed a lot. I think its really impresentesive and i feel really good about that. Thank you. Thank you so much. Im with new rules for global finance. I wanted to pick up on the tax issues. I note in the g20 when they talk about tax and context of development they say we really have to do Capacity Building. Im wondering if the african finance ministers and Central Bank Governors and so on, tax administrators, if on a continental basis you have been able to get together and say, here is the Capacity Building we want and need and here are our preferred instructors. If not, ill work with you. One more. Im with the center for Global Development here in d. C. My question is, i was hoping would you touch on the measurability of some of these targets. I know one of the greatest strengths about the mbgs was they had these specific percentages and numbers that people could actually tangibly measure to varying degrees. Obviously, there is some discussion about the measurability of them, but looking forward to the new framework, what has been your experience with the discussions about how we go about measuring these and comparing progress from year to year . Because i think that has been a huge strength. And also development nowadays is very much focused on the ability to measure the impact. Im curious what your thoughts on that are . I have a question also relating to financing. I want to know what you consider the role and impact of the new Brics Development bank will be Going Forward as it starts in south africa and other countries can then apply to be a part of this new Development Bank. Thank you. Ill let them talk about the brics bank. I heard about it. They were supposed to set it up a few months ago and what it is, im not sure. Measurability. Now we talk a lot about revolution in africa we dont know. The problem has been a lot of things have happened in mbgs, but we dont have the instrument or we have not developed the instrument to measure them. People say well, we have 80 of kids in schools. We have 90 of this or that, but how did we measure them . Sometimes we rely on numbers given by multinationals, multilaterals, but also sometimes by those who have an interest in keeping numbers as they are. Because thats where they get funding from. We have to be aware of them. The finance ministers have a meeting. When the president first talked about a cap, it was at a meeting with the minister of finance and development and they talked about this issue of Capacity Building. Capacity building at the lowest level and at the highest level. And be able to you cannot be accountable if you dont have the capacity. Sometimes its not just corruption. Its mismanagement sometimes. Sometimes its just not knowing what you are doing. Some time money goes through the window because instead of buying this, they buy that. That is not what you need to resolve your problem. For corruption, what level of corruption you want to tolerate . A zero level, but thats a dream. Because wherever there is money, somebody is going to try to steal it if they cant get it honestly. I think the reality is that. Measurability, i think thats okay. Just a couple of selfpromotion things in here. We did a report on governance and Economic Growth at csis. I recommend if you are interested in that issue, well give you one, dr. Dukule before you leave. We did something on corruption, as well. There is something that i want to reference. Up ahead on the issue of Domestic Research mobilization and taxes, if you look at just in africa, if i understand it correctly, the u. N. Had statistics that said in the year 2000 Something Like 100 billion was mobilized through taxes and fees through Domestic Research mobilization. By the year 2010 it was 400 billion. Not all that, some of that is oil, gas and mining revenues. Some of that is increased formality and people paying their taxes. Some of that is a rising middle class. Excludes all the large amount of leakage that dr. Dukule was talking about. That is a lot of money being generated by taxes, even though its not what it should be because there continues to be tax evasion and other challenges. A of people not paying their taxes. If you look at o dfda, its abo 50 billion. I think we hit the high water mark. If its 400 billion and foreign aid is about 60, there is a lot more of this than there is of this. Its five or six times or seven times the amount of foreign aid. I think you are going to see that will continue to rise as you have an increasing middle class. African countries that discovered oil gas and mining. Theres going to be a lot more government money in government coffers. Im not saying its a panacea, but it will be a challenge. The problem on this drm tax stuff, this is not a very sexy or compelling topic. There are no political constituencies in developed countries that are going to get a congressional earmark, to use the american parlance to pay for tax inspectors. Tax inspectors without borders, that gets the heart aflutter. Its darn important because thats where the money is, but its very difficult in the american system to find money or force money because the foreign aid dollars are spoken for. Everybody agrees this is important, but the bureaucratic politics and Interest Group politics in washington to how to allocate those monies goes somewhere else. Not saying they are not valid and important projects, and everybody who fights and dies on that hill for their important piece of that pie, im sure will tell why you their slice is the most important, but i think thats where the money is and there is a lot of leverage there. We ought to be thinking about how we do. Well have a report on this issue of Domestic Research mobilization. If you have trouble sleeping at night, i hope you read it. I want to talk about the bric bank briefly. We need to look at the bric bank as a purely political exercise. The bric bank is a purely political exercise. There are lot of new stories about this, a lot of froth and sizzle. I am highly skeptical. This will ultimately die with a whimper. However, to the extent we are not tending to our knitting of the United States and other participants in the international system, to the extent countries dont feel they are fully participating, i think dr. Dukule talked about some of these issues, i think he put a nuchl interesting issues on the table. To the extent Share Holdings dont necessarily match the size of the economy, especially in the world bank and imf, theres going to be defections from the Bretton Woods system. People exiting out of it. Theres been a series of crypto imfs. When egypt had problems that gulfis played imf, russians said well bail out your Banking System if you give us a naval base. There is an asian selfinsurance imf. Theres a world bank side to this bric bank and imf side to this new bric bank. A lot of problems, what currency . They want to create some new currency. Good luck. I dont think they are going to use yen given the participants involved. Dont think theyll use euros. Hard time imagining they will use the dollar. Ill be curious to see if they will do this in rubles. Dont believe it. I know theres lots of press releases about this. I dont think its real. I would say the other interesting things are the agreement that talked about human rights. Lots of words about human rights in that declaration. Maybe its me, im thinking russia, china, human rights. Figure that one out. Im highly skeptical. Its great, but im not going to hold my breath. Finally on things like what happens, as dr. Dukule was talking about relations are a twoway street. What happens when this new Development Bank provides a loan to xyz country and they decide they are kicking china out as the mining investor in zambia. Elections swung on chinese engagement. Are they going to pull out or not . I do believe the indians are going to bail out the chinese if there is a mega financial crisis in china . I doubt it. Very interesting. I think to the extent we dont take care of things like imf quota reform which is a neighly nichi topic. Has to do with a slight tweet in Share Holdings, people are going to take their bat and ball and go somewhere else. This is a political exercise, in my view. To the extent the United States doesnt tend to its garden, both partially a republican problem and partially a problem for the administration for not selling this, were the only one of g20 countries to not approve imf quota reform. Theres a lot of technical stuff around this basically, its a rejiggering of the share hold g holdings of the imf. I think if we were to fix some things, make tweaks, this would go away quietly. People will ask whatever happened to that bric bank. Quote me on that. If ten years this is the biggest things since sliced bread you can say i was totally wrong. I bet folks a sandwich and club soda this isnt going to be a serious thing in a couple of years time. I think you touched something very important, which is the reform by the imf and world bank. I think that is the key issue. You will not need the bric, the bric banks and all these crypto imf that pop around. How can we get the u. S. To agree to this one little reform . It requires president ial leadership and responsibility from my party the republican party. President obama cut a deal with the republicans. He should cut a deal and he should send Vice President biden up there, but they need to find somebody who can make a deal. Theyve not spent a lot of Political Capital on this, frankly. Theyve got other things in their in box. They have tried, but i dont believe it doesnt excuse republican inaction on this, but i think there are a number of things i could list for you that you could get an easy deal with the republicans on. Its a political conversation, not a question of the arguments or the merits. I think the merits are there. Its a political thing. It requires president ial leadership and republican responsibility. Okay. We are going to take just a couple more questions. Then im going to go to the back of the room. Yes, sir. Lets take these as the last two questions. Mark harrison with the United Methodist church office. Thank you, mr. Ambassador. You didnt mention electricity. We had this whole power africa initiative. The ambassador from botswana. You didnt say anything about agriculture. Electricity for poor people then agriculture. Thank you. Hello, everyone. Thank you so much, dr. Dukule for your wonderful presentation. I wanted to ask if you could speak more about infrastructure developments as it contributes to the ability to accomplish the goals listed on the five pillars. Thank you. A good way to end, particularly with the summit coming up. Maybe you can just say a little bit about the next steps for this as you wrap up. And the presence of the summit and what she is hoping to accomplish there. With the gentleman about electricity, definitely electricity should have been i think i go out with the things we had back in coming out of the cold war process. Okay. We want to open our market, but there are conditionalities. There are so many conditions the u. S. Market was not really open to africa. I dont think so. There was electricity and that links you to the issue of infrastructure. I think infrastructure is still the biggest problem in africa. Transferred to electricity, roads, road network between countries and all of that. I think we still have big issues with infrastructure. I think if we can come up with something from, if this summit, what the president expects, i think she thinks this is a historic moment. That for the first time the u. S. Is saying okay, we can deal with all africa at one point, at some point. We can deal with the whole continent. Not in piece meal but sit around the table with the whole continent and start a dialogue. What will come out of this meeting, i think, is symbolic. I think the first meeting, such meeting is always symbolic. Lets start a dialogue. Lets follow up with real tangible issues. Lets set up committees. Lets set up group of think tanks between africa and the u. S. Let the partnership be at a level of, not only academia, not only on the level of the politicians, but also between the private sector on the continent. The transformation we talk about Economic Transformation is basically and first of all an issue that goes with the private sector. The private sector is part of our conversation. One of the highlevel meetings hopefully in south africa will be about partnership with the private sector. How do we feel private Public Partnership and what is the role of the private sector in the 2015 Development Agenda . I think we have that. What we expect from the summit . I think a dialogue on all these issues, on transformation, on new way of dealing with africa and getting out of the cluster of importing oil and gas from africa to go to different, to other sectors of the market. Also be more aggressive. I think the u. S. Has been very shy in africa. Maybe has to do with our history. The history of the two continent u. S. Has been very shy of africa. There is an opportunity. There is a market. There is a rural law in many countries and puts the possibilities on the continent that can be tackled. Thank you. Thank you very much dr. Dukule and thanks to dan. Thank you all for joining us. I do think theres mixed feelings about the summit coming up. The point is right that its the beginning of a dialogue. Maybe getting over some of our phobias about africa and our notion that somehow making money and investing in africa, making money is unseemly for the United States. Investment and trade are the things that are eventually going to drive the transformation. Youve got structural transformation and inclusive growth that puts the electricity issue that you mentioned, the el culture issue you mentioned and the infrastructure issue right at the center of that. Please join me thanking dr. Dukule. We look forward to the summit. In new york the United Nations Security Council is meeting on the crash of the malaysian airliner in ukraine. That meeting live on cspan. You can watch it online on cspan. Org. We are also asking for your comments on the investigation into the crash. You can reach us through twitter at the hash tag cspan chat or facebook page. It shows the incompetence of the eu aviation for routing a civilian plane over a known war zone. Dennis offers this, all those putin lovers should be ashame of themselves. Yes, he is decisive and a strong leader, yes, he just blew up 300 innocent families. Offer your thoughts. Go to facebook at facebook. Com cspan. Well have more on the crash from the white house this afternoon at 1 00 eastern. Thats when press secretary john earnest is scheduled to hold his briefing. Cspan will have live coverage of that. Up next, the increased use of robots to analyze mass communication, subsequent loss of prif of privacy. Thank you, michael. Its a great honor to discuss a paper by two lawyers i greatly admire. If there is a good overlap between the privacy law and policy community of the robot. If any of you care about your Digital Privacy rights and have sort of been hoping that people have been minding the store for us, kevin and amy are two of the most able and committed storyminders on that front we have. Theyve done great work and continue to do great work to protect our privacy rights and other digital rights. Its a great honor to critique and comment and pull apart their paper for you. The paper which, i dont know if it is inspired by the hall and oates song, robot eyes are watching you, watching your every move. The law and policy Communications Surveillance makes the thesis, i stated the abstract, robots are reading your email and asks the question whether private sector, and in particular government nsa automated monitoring scanning filtering and processing of our, the contents and associated meta data of our email is a legal problem. Particularly given the fact that with automated box scanning, the robots, the algorithms can spy on all of us all of the time. In some respects for a mixed crowd, this is a difficult paper to talk about. It is a very artful, impressive, geeky analysis of the legal code of Digital Privacy rights under the Fourth Amendment and under the electric Communications Privacy act. Originally i was tempted to really dig in with you all and talk about smith v maryland and some of the other cases i have not even heard of. I realize for a crowd of lawyers and technologists and policy types interested in the broad policy questions, if we privacy lawyers were to do that, it would be a bit like the computer scientists talking about which protocols they prefer for various sorts of packetswitching functions and it would get very boring very quickly. Im going to talk less about the law and more about the policy questions and the implications of this. A little about the law and what kevin and amy argue in the paper. The paper asks whether bulk collection and scanning by the government is illegal. The answer they have is yes. It is illegal both under the constitutional requirements of the Fourth Amendment, which grant to all of as reasonable expectation of privacy. In this case, confidentiality of our email assessing smith v. Maryland and a bunch of other important and some wellknown, some lesserknown cases. They also talk about the federal wiretapping act. Originally created to deal with the problem of phone tapping by government and private entities. The electronic Communications Privacy act. The ecpa has a lot of exceptions. The basic prohibition is it is illegal, both civilly and criminally, for anyone to intercept the contents of an tlek communicatielectric commun using a device. Police have to get a warrant. For warrantless wiretapping, warrantless monitoring, the legal question is whether the nsa is using a device, in this case the robot in room 641a, to intercept the contents of an electronic communication. Through a very careful, very important, and very sort of interesting close reading of the legal precedence, kevin and amy conclude not only is there interception of the contents of electronic communication within the statute and the relevant precedence of the Supreme Court and lower courts, but also there is a violation of something in which communications parties, senders and receivers of email, have a reasonable expectation of privacy. I want to take a step back. This is after all a robotics conference. The thesis of the paper is that robots are reading your email. And we should care about it. I think whether or not robots are reading our mail depends quite importantly upon what actually is a robot and whether that matters within our definition of robots and what we want our definition of robots to do. The seminole definition of what is a robot presented here two years ago, and those eminent robo law scholars concluded after much analysis it displays a mental agency but is not alive in the biological sense. A robot is embodied and it manipulates physical things in the world as distinct from a disembodied a. I. Under the richards and smart definition, the robot in 641a is not a robot at all unless, i suppose you could put arms and legs on it, but the activities are pure ly, even if it is in oe unit, it isnt technically a robot. My point in saying this is not to promote my definition of a robot or pull a jurisdiction game and say this is a robot conference and you are not talking about a robot, get out. We could do that and go to the bar early, but its a bit early for that. The reason i want to make the point is, whether or not it is a robot is an important question. How we define what a robot is depends upon what work, what legal work, what technical work, what policy work we want the definition of a robot to do. If we think there are a particular set of legal or social or technical problems that are roboty, that are worthy of separate treatment as robotics questions, we should define robot in a way that captures those problems so that we can deal with those problems on their own terms. My personal view is this is not a robotics question in the way that selfdriving cars or drones or other physical embodied things are robots. That isnt to say it isnt a tremendously important question. In fact, i think how we deal with algorithmic Monitoring Services and filtering services and sniffers is one of the most important digital liberties questions of our time. Its to kevin and amys great credit they are confronting this question. Why i quibble about whether it is a robot or not, i dont quibble about the fundamental importance of the question, both on a technical and fundamental legal Civil Liberties question. The method they used to address the question is crunching cases. They do, for the nonlawyers, they do a simply magnificent masterful job, not just in determining what the law is, but in marshalling cases. Some which wouldnt appear to support their position. But much of the important scholarship to show an interesting original and nonobvious ways why our natural for many of us, that an algorithmic machine is illegal under the Fourth Amendment and under ecpha. I want to push on the correctness in my mind of their conclusion. What if the law didnt say that . I share their ideologic commitments if we are bound by reasoning and looking at what the cases say and leaping from there entirely, we could get into a problem if it turns out the best reading of the law isnt the best reading of what we want the law to be. An example here, this smiley fellow is a guy called roger olmstead. He was a Police Officer who was the al capone of the west, the largest bootlegger of the west and the largest employment of the puget sound region in the 1920s. He brought barrels of whiskey down canada. Thats the untouchables where they do the same thing. Olmstead was known to be a bootlegger. Police installed a wiretap outside his house on a phone line. They found all sorts of evidence from the wiretap transcripts he was a massive bootlegger and he was convicted on the basis of those transcripts. And sentenced to a long prison term. He appealed to the Supreme Court arguing that the police should have had a warrant before they monitored his communications. The Supreme Court rejected the argument, engaging in the same kind of analysis that kevin and amy engage in here. They look as Fourth Amendment law looked at the time, and previous to that, to notions of trespass. The Fourth Amendment talks about protecting peoples persons, papers, houses and effects, not in that order, but tangible thin things, papers, persons, our homes. Electronic communication and electric communication along the wires was none of those things when it was merely electrons flying on the telephone wire. And because there was no physical trespass into the homes, papers and houses and effects of roy olmstead, there was no search or seizure, therefore, there was no need for a warrant. And therefore, the evidence was admissible. Its essentially the same methodology kevin and amy use except those precedents were not as far reaching or maybe chief justice taft didnt have the imagination and legal skills kevin and amy do. Olmstead is best known by the dissent by Justice Brandeis who looked not only at the narrow focus on trespass but what should the Fourth Amendment protect . What does privacy mean . Why does it matter . Regardless of what the precedents say, why does it matter our phone calls be protected from government surveillance . That i think is the question that really we want to ask here. Not just why a question of privacy. Practicing lawyers have to follow the trail of precedence because that is the practice of law. We could take a page from Justice Brandeis and ask what the questions are. If the paper is missing anything, thats whats missing from the paper. It talks about privacy and it talks about interception. We hear about the nfl, but what is missing in the middle is why for the unconvinced. Im fully convinced. I love the paper. For the unconvinced, the people who might think that an automated reading or scanning of your email, depending on how we define the practice going on. Thats bad. The thesis of my book and underlying article is surveillance is bad for two reasons. Its bad because it menaces our intellectual privacy. The privacy that is necessary when we are thinking reading, communicating with confidence, making sense of the world, making up our minds when we know somebody is watching or sharing halfbaked ideas, but when we are privately making up our minds if we are being watched, we might not read the article. We might not wonder. We might be chilled to the mainstream, the inoffensive and boring. If we care in a free society and individuality and about freedom to engage in ideas, any idea no matter how dangerous, we need privacy in that context. Thats the insight that underlies the Supreme Courts adoption of that view in the famous cats case in the 1960s. Its that enormative statement why we should line up the precedents. If they dont line up this way, we should discard them or distinguish them and come up with better tools to protect the fundamental value that animates not only this paper but the work of kevin and amy in their day jobs at lawyers in the trenches protecting our Civil Liberties. Which brings me to the final point. When we are trying to understand the new digital robotic world in ways familiar us to, we have to use metaphors. We have to use leaps that say this is like that other thing. The example here, hold your horses is a good one. The one that runs through the paper is interception. There are others. Even saying a computer is reading your email is itself a metaphor. I will stop because i want a broad discussion on these measures. Why we should craft the law to promote human values. Metaphor analogies are tools just like law. We need to pick the metaphors because they do useful, normtive, political, ideological work for us. Metaphors or tools and robots are tools, as well. There is not natural of a particular metaphor, use of a particular metaphor or the use of a particular technology or technological development, whether it is Robotic Technologies or software a. I. What is most important in this area of the law is we need to work out in advance to the extent we can, the human problems we want to solve. And the human values we want to be sure we preserve in those solutions. We need to pick the right tools for the job to do that. Whether those tools are screwdrivers, whether they are computers, whether they are robots, whether they are computer code or legal rules. My quibbling aside, i want to stress that kevin and amy have given us a very important paper and its a testament to what a good paper it is and what good lawyers they are that their paper raises these essential and criticalically important legal, technological and ultimately human problems. Thanks, neil. I think ill have a few comments and amy will have a few comments. So i think its worthwhile very briefing summing up once genoa question the paper asks and what the answer is. What we describe is all the traffic going over the internet back bone getting copied into a network of secret rooms filled with these big commuters that are looking at all the email and looking basically for a list of targets in the content of your email, seeing if you are talking about one of their targets, and then if it sees and identifier that its looking for, it saves that email and sends it down another network to the internet. If it doesnt see that, it passes out a memory. The question, sort of a tree falling in a forest type of question is, if it looks at your email as doesnt see an identifier and doesnt store your email, has your privacy been harmed . I dont think this is a philosophical or academic questions for a few reasons. First off because its actually happening and its a critical question. You might ask why does it matter . Who cares what the absent to this is . It matters because it depends, and we are both practicing lawyers. I think neils point about this being a focused paper is a fair criticism. We are litigators and we want to sue people. Whether or not your privacy has been harmed, is whether or not you have standing to sue the nsa. If we cant articulate an argument why everyone whose bits passed through this machine have been harmed, yet we do not know whose emails have been selected to be looked at. That puts is in a koftkaesque catch22 why we cannot sue the nsa. That is a problem for me. We first learned about this infrastructure from a whistleblower from at t mark klein who showed up at our door step in 2005. That was part of the impetuous for our lawsuits against nsa and at t at that organization. A lot of these ideas have been knocking around since then. I also want to clarify the paper doesnt address whether or not this stuff is illegal. We are asking the threshold question whether or not this is an interception under the wiretap act or a search and seizure under the Fourth Amendment. It may be that the answer to those questions are yes but it is illegal because it satisfies this or that exception and is reasonable under the Fourth Amendment or whatever. We didnt go into that because it would have been a longer paper. We are not writing a paper about nsa but whether automated scanning of emails violates privacy. We are simple country lawyers not philosophers. We are not coming at this as a philosophical question. We are coming at this speak for yourself yeah. For me at least, my best proxy, my best way of answering the question, does it violate privacy is looking to the laws that define when our privacy has been violated and answering the question based on that. I think that along with the pressure is one of the main reasons the paper is law focused. I do think there is room to do more about the particular harms of even automated surveillance. The one we address specifically in the paper, and we do this in part through storytelling, is the particular danger of mass surveillance that has been enabled by automated surveillance. For those who havent looked at the paper we step through a series of interludes describing the surveillance in a room and analogizing to millions of human beings sitting there reading everybodys email. Those humans are reading a lot of emails. They are not going to remember anything. Like your doctor, theyve seen everything. They are not going to be titilated in anything they see. If they dont see a keyword, they will shred it. I dont see how that is distinguishable having a robot do it. If they had an army of people reading our email that would violate our privacy. That would be a search and seizure. We in part through storytelling are trying to draw the analogy and say basically, and this goes to the legal argument in many ways, this automated process is not different from, but rather merely an agent of the humans who want to read your email but cant do it because they dont have the capacity to read everyones emails. These automated agents are not violating your privacy less. They are enabling humans to violate your privacy more scaling up to something massive that humans could never have done. Like neil, im promote my own work. Its also the subject of a paper by myself called tiny constables and the cost of surveillance, making sense out of u. S. V. Jones, saying things that were expensive years ago are now cheap and easy. It used to take a team to follow you covertly. Now the government can follow thousands cents per day using their cell phones what that means for our privacy and the future of law. I think ive somewhat addressed some of the things neil brought up. Amy . I think one of the questions neil brought up are we talking about robots, if not we should leave and drink. One of the early questions i heard does size robot matter . Does it matter how big a robot is . Is it molecularly small . That is an important question here. If you have, for example, im going to use more metaphors. If you had a team of humanoid robots opening letters and determining if they were passed on to the government, would you say those were robots. If you had robo dogs walking up and down every street and heatscanning houses to determine if they had heat emantaions that reminded the dog of a pot farm produced inside the house and sent back an alert to the local Police Station saying this house looks like they are growing pot, this house doesnt, this house does, that robo dog would be a robot. Does it matter when you take the physical piece out of it and put it into a computer and have the same effects occurring . Can this message be passed along . Thats the robot interest we were getting to in this paper is that it is acting on something, whether or not it is a physical piece or a bunch of bytes that contain personal communications, that is still something important. Then you asked me this yesterday, what if the law didnt go your way . Yeah, but the law does go our way. Its an important question because the law also doctor in shifts. Cats was an important shift after olmstead where they recognized that test wouldnt work. Thats when we moved to the reasonable expectation of privacy test. We saw another doctorurnal shift. We didnt leave olmstead behind. There is still a property interest that is implicated by the Fourth Amendment, but cats supplemented that. You have a reasonable expectation of privacy test and this property law test for whether aoccurred. Whether a gps device was physically placed on the car. Maybe in our new world it is time to shift away from the reasonable expectation of privacy test. Because we have persist end surveillance in public places. Nobody technically could even argue nobody ever has a reasonable expectation of privacy anywhere. Is that the future for the Fourth Amendment when youre spying on everybody all of the or not the dissents, the concurrenc concurrences, started to go that direction and started to look at the persistence of the surveillance and how much information is gathered and over how much time, and were starting to see another doctrinal shift in that direction. So its possible that well have to reevaluate this under another test, but the great thing about our paper is we were able to determine under the current test and the current case law that a search has occurred and that a violation of Fourth Amendment has occurred. So even if we get a better test later on, were already there. So let me say maybe three or four sentences and well start the queue. I suspect this is a question almost everyone the in the room has strong feelings about. One really doesnt need to be sort of intimate with the microphone in order to project through the room. I think thats right. I really like amies point about the letteropening physical robots versus the Software Agents. I think that essentially were in agreement. This was the problem in olment stead. And the doctrine was a physical doctrine. The question is, well, when the physical trespass reading ones mailed by the physical Police Officers, tiny constables or fullsize constables, whether we needed to adjust the task to take account of the change. But that, i think, is ultimately i think maybe my point of disagreement or at least the point that i want to push them on is why is that the case . And what values are served by changing the test . Because the test, after all, like a robot or like a software ai, is a tool. And simple country lawyers are not, i like that metaphor. Though, they are sort of highpowered washington lit gators. Theres some false modesty going on there. Butter this litigators. What litigators have to do, even litigators that dont appear before jury, they have to tell a story. They have to tell a story which explains to the unconvinced. I dont need any convincing this is right. But if we were to roll out this argument, it will not be met with universal acclaim, either in the corridors, digital or physical, of the nsa or in the federal judiciary, which is ultimately the audience that has to be persuaded by these questions. I think as taft and bran dice diverged in olmstead based upon what values were important. Prevention from trespass or protection of privacy, intellectual privacy and communications. The doctrinal argument needs to be intertwined with a normative story, rooted in our legal traditions and human values and our constitution. Absolutely. But that story is a necessary piece because just Like Software code, legal doctrine is malleable and can be constructed and used to build any sorts of things. But we want it to build good things. And in order to figure out what a good thing is, we need that political, ideological, normative story. And i think thats what many of the people on this side of the table and people who care about these issues have to explain to those who are either unconvinced or on the fence wanting to be convinced but not having heard the story that justifies that the change in test or the interpretation of ambiguous doctrine in a way that protects this. I would also add, i think kevin is exactly right. The Agency Theory here is a tremendously significant legal innovation or discovery that they have found and told a good story of in the cases. So were happy to take questions from the back queue. Were using the microphone in the back of the room. And again, general rules, if one can identify ones self, then well get cracking. Yeah . Steve wu again. I just wanted to thank you for your thought provoking paper. One of the things ive been thinking about ill mention two things. One of the things ive been thinking about is generally the transition from physical to digital. And how the law doesnt seem to have caught up. The example that i give is in the 1990s when i was really first thinking about the internet and i was trying to do quote unquote computer law is that i saw some of these cases having to do with Insurance Coverage for the loss of some kind of data center. A claim was put in by the insured to seek compensation for not only the loss of the hardware but also the loss of the data. And of course, policies werent very sophisticated at that time, but the courts basically said, well, you can recover for the loss of hardware, but data are intangible, and there are theyre not covered by the policy. Therefore, in the eyes of the insurance policy and the court, these data have no worth. This is all about the data. The hardware are commodities. But its all about the data. And i think youre seeing is the same kind of thing with this transition from reading physical paper to reading peoples emails. Its all about the data. So, you know, that might be something to think about in terms of, you know, further refining your draft. The other thing i would give you a little bit of a practitioners data point, which is what youre writing about has real difference in part because for the first time last week in a contract negotiation, which im trying to help negotiate an agreement for an internetbased service, a customer of the Service Wanted to impose a term on us saying that if we, my client, becomes aware of government surveillance that we have an obligation to notify the customer. I mean, mass surveillance, completely unconnected with legitimate antiterrorism activity and focused on particular individuals. But mass surveillance that my customer or my client has an obligation to not only notify the customer but also to file a lawsuit to try to stop the mass surveillance. You negotiation basically take on the nsa. I thought, i applaud the opposing counsel for coming up with the idea and jumping on an issue of topical importance, but on the other hand, it was quite a burden on my client. But yet, youre seeing something straight out of the news go into a contract negotiation. And so what, you know, if this program didnt exist, we wouldnt my client wouldnt be incurring these expenses. So i agree with you totally about the data versus hardware question. In fact, i was just in a conference in toronto where one of my fellow attendees had lost her laptop in the airport on the way to the conference. Somebody had stolen it. And it had an entire chapter of her upcoming book on it that had not been saved elsewhere because she said she hadnt backed up. She was like, ive just lost it. We were talking about how there should be a repository for people who have stolen devices to upload the contents of that device because youre really normally ready to give up the hardware if you can get back the data on it. Just give me my data back and i wont file charges on the computer. I mean, on the first point about the law, its a truism. The law isnt fast enough to keep up with technology. Technology is changing much faster than our doctrine can keep up. Luckily, in a lot of ways on a lot of these issues, we have ready metaphors, some of them simply physical metaphors like cyberspace, that help us grapple with these things. For example, on the issue of the electronic Communications Privacy act, this is a law that inadequate protects our data in the cloud. We have now for years been arguing, and i think its a strong argument, that the data we store in the cloud is analogous and should be treated it the same way in terms of Privacy Protection as the data we store at home in our personal file cabinets. I think well ultimately win that battle, but even with a ready metaphor, its taken many, many years. I think were lucky on this issue we have a bevy of ready physical metaphors from football interception to telephone switchboard operators to, you know, drugsniffing dogs or we distinguish that as an analogy. And simply the idea of millions of people sitting there reading everyones email that we have some pretty strong, you know, arguments by analogy to make. What freaks me out is when the Technology Gets so weird that ready physical analogy, there are no ready physical analogies. We can barely keep up with the easy issues. I consider this to be actually one of the fairly easy issues. When things get really, really weird, such that theres no ready analogy to the physical world, thats when not only is law not keeping up, law is falling far, far, far behind. And then ill just make one point on the contract negotiation. We set out in the beginning of the paper two programs that are being operated by the nsa under one of their authorities. The program where they actually go to the providers and ask for information and then the backbone program that we tackle throughout the whole paper where theyre just getting information off of the wires that make up the internet. And its very hard for, i think, in many cases, the providers to know that the information taken off the backbone is being taken off. So you wont get that notice that the program is even happening given to the provider. But what i think that were moving toward is actually a world where in contracts you have to secure our data as to the point that it cannot be picked up the wire in any readable format. And thats something that were aware of that were not necessarily looking at. Theres a huge problem with authorized access and how much information theyre getting and how much information is requesting from companies but also them just going around the company altogether and getting information off the backbone and what you need to do to make sure that cant happen anymore, to make sure this cant happen anymore. Very quickly on the first point about the physical to digital, i think the first part of your question answers the second, right. You said on the one hand, data has enormous value. Then you said, but securing data is costly. I think the fact that data has value perhaps justifies maybe not canaries for everyone and the obligation to file lawsuit, but wow, what a fantastic legal rule that would be, at least from my perspective. I think its the fact that data does create all this value but also creates risks to the companies but also to the users whose data is being safeguarded, i think actually does cancel itself out to some extent and argue that its actually okay to impose reasonable obligation of privacy and security on prooif entities. Also, it shows how this is not just a government problem or a government versus citizens problem. The intermediaries are an important part of the puzzle. On the metaphors, you know, we can call it a robot here, we can call it an agent. We can call it a device. The other example kevin used, we can call it the cloud, which sounds very airy and puffy. We could also call is the vault or the data locker. Compare icloud to dropbox. The various senses that conotes about security. My overriding point today is that the choice of those matters and the choice is important and the choice is natural and we should make those choices consciously, not because weve been using the metaphor before, but because the metaphor helps us to capture that the human and legal and social values that are at stake and we cannot let our metaphors get in the way of our values, even wellworn metaphors that are easier and require less cognitive load to follow down the path. Path probably being itself a metaphor as well. Hi. So i loved this paper. I especially loved, amie, your take on the reasonable expectation of privacy and your comments just a minute ago, when you said the test should just be chucked because its not very good. I would tend to agree with you. A lot of the reason i agree with you is the fact we just cant decide what the term privacy actually means. If it means anything. So on that point, i actually would like to pick up on what neil said, which is its important to create a story. And its important to create a narrative. Although i know you said youre litigators and thats not what youre actually going to do, i think you may have the beginnings of a very interesting narrative that i havent seen played out yet. I wonder if you could draw upon that a little more. So one of the big problems with privacy is we dont know what it means, and you can define it seven different ways. But one of the more popular ways we define privacy is the right to control information and is this idea of control. But of course, that doesnt work when were talking about surveillance because youve already lost control the moment you hit send. So we say, okay, well, that doesnt account for surveillance because surveillance isnt really an issue about controlling information. At least when were talking about emails traveling along the lines because its picked up along the way. You know, theres control lost. Then your information is traveling along. Then the privacy harm happens. But talking about the metaphor of the nfl, which i really loved and it was very intuitive to me, i wonder if the story that youre creating here is that the harm from surveillance actually occurs when control is gained by another. So not loss of control, but rather anothers gaining of control. Thats really what enables the harm here. And it allows us to talk about privacy harms in a certain type of way, a way in which neil has described in his work. The resulting power disparities that creates. One of the ways in which the power disparities are created is when another, third party, gains control of information. So i wonder what you think about that and if thats maybe a way you could then flesh out this theory a little more to put some scaffolding around it. Do you want to start . Yes to all of that. I mean, clearly one of the overall themes in the paper when we step through at least the interception, you know, the statutory analysis and Fourth Amendment seizure analysis is in some ways the robots are irrelevant. The real moment for, you know, when an interception occurred or when the seizure occurred was when the government gained control of a copy of your communications, such that you no longer had the ability to decide how it was disposed of and it was taken out of the regular transmission path, you know, and someone other than the intended recipient gained control of those bits. And the metaphor we used that you mentioned was an interception in football. The ball is intercepted. The moment that happens, the other team has gained possession. You lost possession. It may behe fumbled it immediately afterwards, he takes a knee or gets to the end zone and gets a touchdown. Whatever happens after that moment is irrelevant to the fact that it was intercepted. And so this does also reflect a theme that you see in work like neils or like paul ohms recent privacy in a the Fourth Amendment in a World Without privacy. And something youre seeing in discussions around big data now and the white house process, that were moving away from discussions of privacy and moving more toward discussions of power. And how data and access to data and imbalances in access to our control of data effectuate power relationships. And in a way, this ultimately goes back to my Cocktail Party version of my answer to the question of, why should i care about surveillance . I dont care if, like, the nsa has a copy of, you know, the recipe that my grandma sent me or whatever. And my answer to that question is always, well, its not about you, you narcissist. Like, it has nothing to do with you individually or whether you feel creeped out or violated. It has to do with maintaining the conditions for a Democratic Society. And if we live in a society where those already with power also have the power to automatedly look at all of our private communications to see if theres anything thats interesting to me that might, say, threaten their power, thats much bigger than a privacy question and certainly much bigger than a question about whether you feel personally violated, which frankly i dont care that much about. Thats going to come back to haunt me. So just to bolster everything that i agree with that kevin just said, we spent a long time oh, the computer went black. We spent a long time looking at the diagram that used to be behind me and trying to figure out when it when the privacy harm occurred and what the privacy harm was. Theres a very long discussion, i think, about harm that we tried to work in and were going to continue to try to work into this paper. Eventually, we came up with it occurs at the point the communication is originally diverted. It doesnt matter what happens in the box. It was that one point because thats when no matter regardless of if they discard it, regardless if they keep it, they now have the decision to make the robot has the decision to make about what to do. They have put it into the robot and now the control has been taken away from the person. So the moment it has been diverted off the path that it was intended to go on. A harm has occurred no matter what. I think theres a great point. I agree with everything kevin and amie have said. But one thing kevin said, if the robots are irrelevant, then maybe i think if theyre irrelevant to the story, maybe they should fall out. I love the title. Irrelevant to the search analysis. Theyre certainly relevant to getting the paper before this great conference. Im glad they did because we all get to hang out with them and read their work and argue about this stuff. But i will say theres another hypo in the paper that raises the same issues but indisputably involves a robot, which is one that amie mentioned, although she mentioned it as dogs. Imagine selfdriving cars that are driving around the neighborhood. I mix metaphors. Driving around the neighborhood doing heat sensing on the houses to try and detect marijuana grow operations. The Supreme Court has nund doing that type of scanning is a search of the house. And i think that metaphor, which is a different hypo from the nsa hypo but raises the exact same issues sort of demonstrates that the robots arent necessarily irrelevant. The robots are perhaps less relevant to the hypo we chose but perhaps is very timely. I would say theyre all agents. Thats the power of this paper. Its the Agency Theory. That is a story. And i think its a really powerful one. And it ties in nicely with, you know, neutral sort of existing, neutral legal rules. On the nfl metaphor, i like it, but i like sports and i like football. And, you know but we have to be careful. It might work for the interception part, but we cant let Fourth Amendment law be sidetracked by the nfl, right. Because im english, but if theres defensive encroachment you can call it american football. As opposed to real football. If there is encroachment by a defensive lineman before the snap, theres an interception, but the play is called back when its declined afterwards by the offensive team, which is complicated. But the point s we cant let the nflness and the coolness of the metaphor imprison our thought. Its useful for the point they use it in the paper, but we need to stop and say no more nfl because were doing privacy law and Civil Liberties law and Democratic Society power law, not football law. Michael from the university of miami school of law. Im going ask you guys to speculate about legal doctrine because one of you is a great expert, and the others are not only experts but inside the beltway. In order to set up a doctrinal point, i have to set up a slight detour. The case youre talking about, the heat sensing case is a very funny case because a key point of it is a reasonable expectation of privacy based on the idea that most people dont have heat sensors. Right. If heat sensors were built into the iphone that, case wouldnt hold theres a reasonable expectation anymore. One of the great achievements of your paper, which i love s that it puts agency law right at the heart of the surveillance mechanical surveillance problem. In a sense, the elevator pitch for 50 of your paper is we take the action of the agent, attribute it to the person and treat them like the person. And that gets us where you and i want to go so long as theres a reasonable expectation of privacy as regards the action of the person. The question i want to ask you to speculate about is how so thats really using agency law as a shield. The question i have is, can we use agency law as a sword . This gets to something amie was talking about briefly before. How can we deal with situations where there is no expectation . Thats important because to the extent we have this oneway ratchet and Supreme Court doctrine where as Technology Becomes more common, the zone of our reasonable expectation shrinks and shrinks and might some day be zero. The shield might not be enough. The shield is temporary. We may need the sword. So given the doors been a little open by jones and other recent cases, how can we is there a way we can use this agency idea to fix things, third party doctrine, banks, whatever, and the reason why this question seems to me so hard is that if i wanted tomorrow to open up a privacy bank that gave you a contract that to the maximum extent permissible by law protected your rights and therefore gave you more reasonable expectations of privacy, i couldnt actually give you much more than my bank gives me now because of the world of law and regulation in which banks are meshed and controls what they can offer me. I think the same thing is to a certain extent true in communications and lots of other infrastructure weve built. So its not enough, i worry, merely to take your idea and try to turn it into a sword. We then run up against all these other problems as well. What do we do . What do we do . So i have a few thoughts on that. Just so i dont want to ask you, but im a little confused about why this isnt simply a question about how do we address reasonable expectation of pro f privacy . Im not quite seeing the linkage. As i understood the paper, right, the Agency Theory gets its power because if the principal had done this thing, it would have been a violation of our reasonable expectations of privacy. If there had been no reasonable expectation of privacy on the part of what the principal had done, theres no problem with using the agent to do the same thing. Am i misunderstanding that . No. So what about, you know but the problem is that as republican expectation you could say, i suppose it is an answer, we need to put more life back into reasonable expectation. The trouble is, its very tough. Were in a world where worlds have meaning and metaphors work. So theres an interesting there are a number of really interesting things we can talk about here. On the just sort of general reasonable expectation of privacy question, you know, i share your concern. We have seen through jones a few alternate paths to ways that increases in technological capacity can strengthen our reasonable expectation of privacy rather than diminish it if. In jones, the Supreme Court held the 28 days of gps tracking of a vehicle on public roads, was a search, did violate a reasonable expectation of privacy even though that information was exposed to the public. And that shorter term or technologically unassisted tracking would not have violated reasonable expectation of privacy. Five of the justices in that case actually held that it was the tracking that was the violation, not the attachment device. So that shows there is a concern on the Supreme Court, and there are five justices on the Supreme Court that believe even just using technology advocating information that was public could violate your protection privacy. In that way, increases in capacity to surveil us could give us more protection than we had in a way as a counterbalance to increases in capacity could make what was a search no longer a search. On the agency question, there is a really interesting doubleedged sword here, and we wanted to address it in the paper. We didnt have time. We cycled a paper by toxin who, in the Fourth Amendment context, he argued that it shouldnt count if a robot reads your email from a Fourth Amendment perspective in part that he feared if it doesnt count that should eliminate the protection of privacy. That is, to the extent we have a lot of robots looking at our email to scan it for viruses or to service ads or whatever, if that counts and weve agreed to that or otherwise have allowed that, that could mean we have given up our overall interpretation of privacy in those communications. I fear that toxin was killing the Fourth Amendment to save it. I think im more concerned about the parables that come from government surveillance than private surveillance and i think our allowing that kind of behavior does not eliminate protection of privacy, and we have enough cases saying that that i feel comfortable. But its not that easy. It gets to the automation rationale which is the case where smithfield, maryland said we do not have enough cases to judge. I think this goes to age bias as much as anything else. They said, human operators used to connect our calls, and the fact the phone companies have automated that process doesnt change the fact we have exposed that information to the phone company. We pivot that and use that to our advantage in the paper and say, well, if its good for the goose, its good for the gander. The fact the government is auto mating this reading doesnt make it less of an advantage. Thats right, and i think another way of sort of restating this or maybe adding a bit to it that kelly and andy could answer the question is that we agree with you, neil and michael and woody, that the real genius of our paper is not the use of the word robots in the title but is the use of the word agent. Because we talk about the National Security agency and that National Security agency has agents, and some of them are human beings and some of them are Software Agents. Maybe some of them are scary robots, too. And those agents follow out the wishes of the principal, and it doesnt matter whether those wishes are accomplished through a Software Agent or a human agent or a scary killer robot agent. What matters is that the agency is happening. And the will of the principal is being affectuated through one of its agents. When michael said i dont have any privacy anymore because everything is being tracked, there is something that says we respect an expectation of privacy that people have, subjective, and also one that people accept as reasonable in an inquiry. If there isnt an expectation anymore, privacy goes away. There are two things we can do. Junk the perspective entirely, which i think we can do, and when it comes to objective reasonableness, we should look to lawyers. Lawyers, doctors, priests or librarians or psychotherapists, anybody who has a professional duty of confidentiality. When you trust someone with your data, your lawyer, lets say, this might be publicly known information but they are under a duty as your agent not to disclose under any circumstances. It doesnt matter whether the person asked the question knows whats going on, it doesnt matter really anything, and thats the way the agency can be used as a sword, that it can protect confidences, it can protect sharing. Ironically enough so that sharing can take place. It occurred to me that over the last 200 years, theres been a massive erosion in the publics concern with privacy. Because if you think about what our founders were trying to do with the bill of rights in protecting our papers and effects and preventing the interception of our mail, essentially the free ice cream that we get when we sign up for google or hotmail or Something Like that lets us sacrifice the privacy youve heard the free ice cream theory, right . I dont get the ice cream. Oh, sorry. There is a little bit of a theme, i guess, in privacy discussions on articles and stuff, they call it the free ice cream problem. That people will accept any crazy terms of use, including indemnification of the service that theyre providing and limitation of liability to the amount of their subscription, and they will do anything for the free ice cream. Thats the saying that is going around. If people are thinking, okay, ill click i accept these insane terms of use and sacrifice my firstborn and my arm and my leg, that is the reason why this expectation of privacy just kind of disappeared, then the only people who are terrified are the lawyers, right . Because the lawyers are thinking, how do i defend my client in court when the contents of every email that theyve ever sent are exposed for consideration . Thats one thing. How do we expose this problem to the general public and inspire them to be outraged in the same way that our founders were outraged, in the same way that the british were outraged when the Castle Doctrine originated . And how do we manage the problem of the destruction of a persons life during a multiyear litigation when you may finally get this critical piece of evidence that was acquired by violating the privacy kicked out of the lawsuit, but the person has basically been dragged through the mud in the public eye . I wont speak for kevin because hell noriel at me, but i get this privacy dead question a lot, like do people not care about this anymore . My experience is if they dont care, they dont know. To the extent they do, i agree with kevin on his point earlier that quit being a narcissist. But also because you talked about a multiyear litigation, i just had to go through this with my sister who lives in florida and had to be told her Facebook Messages could be subpoenaed, even her private messages. And she had no idea, which is an interesting place to put someone when they start thinking about what is private and what is public. You have to put it in context, is that people may give up their privacy but they give it up contextually and they dont understand that information can leave the context that you put it into. So i think there are a lot of psychological pieces that go into that that go outside the law, and lawyers are used to thinking of it in very rigid, specific instances and not really the way you think about it in everyday life. Kevin is right, its you will about power. But its all about power on the consumer expectation, too. The reason papers are in the Fourth Amendment wasnt because people were concerned about the government rummaging through their things, but they were rummaging through their things to find diaries or letters or evidence that could be used to punish or haul people in courts on charges of treason because it was very much a public liberty. I think thats part of the argument as well, but its an argument that we should care about the Fourth Amendment because we care about a Government Society. This might be controversial, it might be wrong, but ill say it, anyway. Its more important to have a Government Society than to have free ice cream. On the commercial side, its also a question of power. Amy is exactly right, its a question of limited choices. Its a question of knowledge and information. Where we have that elsewhere in the consumer context, we regulate it. That might be practically difficult to accomplish, but thats the answer, and i think thats the story we need to tell. These are all about stories. I just want to know if somebody from microsoft and google are here giving out ice cream. I want my ice cream. First of all, you two are my favorite country lawyers. Or at least kevin is, im not sure amy is from the country. She said she is. I think you should use that perspective actually more. Im going to push back against neal. The litigator perspective . Yeah. Actually, your uniquely situated for the litigator perspective. Kevin, something you said earlier struck me which is this is all about trying to get these issues into court. I looked to see if amnesty is included, and i couldnt find it. If this is about power, which i agree it is, the very complex series of hurdles that you have to overcome to even get to the question thats a lot of series. Right, but if youre about power, this is like that last piece in all the other pieces of the system, which i think is a really important part of it. Im just here to control neal because im still mad at him for saying we should treat robots like hammers and screwdrivers two years ago. I completely agree with you, neil, that the real argument here is agents, right, and not robots and that its intellectually dishonest to use the word robot in this context. I agree with that, but weve talked so much about how people perceive robots as agents and how we have these completely Unrealistic Expectations from science fiction, and it just sounds so different. A robot is reading your email versus your emails being automatically scanned, and so if were talking about getting people to care about privacy and, you know i dont know, im just trolling, basically, but if you had to choose between being intellectually honest and actually getting people to care about these issues, which would you pick . [ laughter ] thats directed at neil. Based on this wikipedia entry i just edited, what were talking about, they are robots. Theyre certainly bots. Would taking the ro off make people happy . So when did i stop beating my wife is the loaded question youre asking me. I dont think its intellectually dishonest to call it robots, and i want to be clear because that was one of my critiques of kevin on this paper. I dont think its intellectually dishonest. I think using the word agent is better. My concern about using at a tactical level using robots to get people to care is we may get people to care about the privacy issue, but then we create this whole anthropomorphic level, and we create a huge robotics problem with the anthropomorphic problems that the people yesterday were talking about. When i say robots are hammers metaphors are hammers, too, and hammers are good. We should just be clear that these are human construction tools. Hammer is probably a colorful way of expressing it. Toasters are even a more metamorphic way of expressing it. All of us are engineers and we just want to build good things. We can argue what good is, but ultimately thats all we have to realize. There is no mystery to this, its just hard. Thats why were here. Thank you all very much. I have two quick announcements. The first is we have tshirts for sale out front. If you want them they have the wonderful symbol of rosie the roboter. And this is the last chance to sign up for car action at the airport if you need that. Having done that, i now have the fun part of thanking you for joining this wonderful panel. It was a great panel. [applause] thank you. Well see you in 15 minutes sharp. Earlier today at the United Nations, the Security Council met on the downing of the malaysian airliner over ukraine yesterday. The u. S. Ambassador to the United Nations, samantha power, had this to say. Yesterday we were all shocked by the downing of Malaysian Airlines flight 17. All 298 people aboard, 283 passengers and 15 crew, were killed. As we stared at the passenger lists yesterday, we saw next to three of the passengers names a capital i. As we now know, the letter i stands for infant. To the families and friends of the victims, it is impossible to find words to express our condolences. We can only commit to you that we will not rest until we find out what happened. A full, credible, and unimpeded International Investigation must begin immediately. The perpetrators must be brought to justice. They must not be sheltered by any member state of the united natio nations. Let me share with you our assessment of the evidence so far. We assess Malaysian Airlines flight 17 carrying these 298 people from amsterdam to kuala lumpur was likely downed by a surfacetoair missile, an as11, operated from a separatistheld location in eastern ukraine. The airliner was traveling at a kuz altitude of 33,000 feet and its speed was typical for an airliner along an established flight corridor frequented by commercial traffic. The flight was transmitting its assigned transponder code corresponding with its flight plan and flight tracking data was publicly available on the internet. There was nothing threatening or provocative about mh17. Of the operational s. A. M. Systems located near the border, only the sa11, sa20, and sa22 s. A. M. Systems are capable of hitting an aircraft at this flights altitude of 33,000 feet. We can rule out shorterrange s. A. M. S known to be in separatist hands including sa13 systems which are not capable of hitting an aircraft at this altitude. Early thursday an sa11 s. A. M. System was reported by a western reporter and separatists were spotted hours before the incident with an sa11 system at a location close to the site where the plane came down. Separatists initially claimed responsibility for shooting down a military transport plane and posted videos that are now being connected to the Malaysian Airlines crash. Separatist leaders also boasted on social media about shooting down a plane but later deleted these messages. Because of the technical complexity of the sa11, it is unlikely the separatists could effectively operate the system without assistance from knowledgeable personnel, thus we cannot rule out Technical Assistance from russian personnel in operating the systems. The ukrainians do have sa11 systems in their inventory. However, we are not aware of any ukrainian s. A. M. Systems in the area of the shoot down and more importantly, since the beginning of this crisis, Ukrainian Air defenses have not fired a single missile despite several alleged violations of their air space by russian aircraft. This also follows a pattern of actions by russianbacked separatists. On june 13th, separatists shot down a ukrainian transport plane carrying 40 paratroopers and nine crew. On june 24th, as this council was meeting to welcome ukraines unilateral ceasefire, we received word that separatists downed a ukrainian helicopter, killing all nine on board. On july 14th, separatists claimed credit for the downing of a Ukrainian Military cargo plane flying at 6,000 meters and on july 16th, they claimed krel credit for the downing of a ukrainian fighter jet. If indeed russianbacked separatists were behind this attack on a civilian airliner, they and their backers would have good reason to cover up evidence of their crime. Thus, it is extremely important that an investigation be commenced immediately. In the first instance, the Osce Special Monitoring Mission should act as a first responder, laying the foundation for efforts by other International Organizations and individual nations, including those whose citizens were victims of this tragedy. Yesterday president obama assured ukraines president poroshenko that u. S. Experts will offer all possible assistance upon his request. President poroshenko has invited the independent and credible International Civil Aviation Organization to join in investigation. International investigators must be granted immediate, fushlgs and unfettered access to the crash site. All those concerned, russia, prorussian separatists, and ukraine should agree to support an immediate ceasefire to facilitate access by international investigators. In this regard, we look to the smm, also to Reach Agreement with separatists and others in the region to make this possible. All evidence must remain undisturbed, and any evidence removed from the site by the russianbacked separatists operating in the area should be promptly returned and handed over. Russia needs to help make this happen. Were asking for your comments on the investigation into the shootdown of a malaysian airliner in ukraine. You can reach us through twitter at the hash tag cspan. Patricia writes, malaysia has a lot to answer for. They were flying over a war zone, even though all planes had been warned off. And eleanor says, no passenger jet should ever be shot out of the sky for any reason. They are not at war, this was a total tragedy, and it should never have happened. 40 years ago, the watergate scandal led to the only resignation of an american president. Throughout this month and early august, American History tv revisits 1974 and the final weeks of the nixon administration. This weekend Opening Statements from the House Judiciary Committee as members consider articles of impeachment against president nixon. Selection of the president up as a very unique position within our political system. Its the one act in which the entire country participates and the result is binding upon all of the states for four years. The outcomes accepted, the occupant of that office stands a a symbol of our National Unity and commitment. So if the judgment of the people is to be reversed, if the majority will is to be undone f that symbol is to be replaced through the action of the elected representatives, then it must be for substantial and not trivial offenses, supported by facts and not but surmise. Watergate, 40 years later, sunday night at 8 00 eastern on American History tv on cspan3. With live coverage of the u. S. House on cspan and the senate on cspan2, here on cspan3, we complement that coverage by showing you the most relevant congressional hearings and Public Affairs events. Then on weekends, cspan3 is the home to American History tv with programs that tell our nations storyics including six unique series. The civil wars 150th anniversary, visiting battlefields and key events. American artifact, touring museums and Historic Sites to discover what our if i tacts reveal about americas past. History bookshelf with the best known American History writers. The presidency, looking at the policies and legacies of our nations commanders in chief. Lectures in history with top College Professors delving into americas past. And our new series reel america featuring archival government and educational films from the 1930s through the 70s. Cspan3, created by the cable tv industry and funded by your local cable or satellite provider. Watch us in hd, like us on facebook, and follow us on twitter. Three whistleblowers from the Veterans Benefits administration testified tuesday before the House Veterans Affairs committee on misappropriations, misconduct, and retaliation for reporting wrongdoing in the department relating to wait times for veterans to receive medical care. They called the problems in the Veterans Administration systemic and a culture of corruption, where management, bully, and harszed workers who report mismanagement. Good evening, even. Welcome to tonights hearing. Were going to be reviewing the veterans benefit administrations 2015 goals for disability benefit claims processing as well as the viability of those targets, which the former secretary established several years ago at 125 days to complete and 98 accuracy on the claims. Were going to delve into the actions that vba has taken and its singular focus to declare victory on disability claims in 2015, and we will endeavor to determine what price is being paid by our veterans, by the employees, the Human Capital of the Regional Offices, and by the american taxpayers. We have spent significant time on Veterans Health in recent weeks and have exposed the rampant corruption and dishonesty, the bullying, and the retaliation, the corrosive culture and the workplace fear that has flourished within the administration. Now we look to vba and seek answers on its part in creating the same, the very same environment that weve already heard about within its ranks. I received correspondence from a vba employee who is with us tonight who wrote, and i quote, here are excerpts from the report by the White House Deputy chief of staff rob neighbors detailing, one, the vhas 14day scheduling is standard and arbitrary, two, the vha needs to be restructured, it looks a transparency or accountability in its management. And three, a corrosive culture has led to personnel problems, highlighting poor management, distrust between va employees and management and a history of retaliation towards employee raising issues. The employee then stated in the letter, quote, if vha is replaced by vba and 14 days is replaced by zero claims over 125 days and 98 accuracy, these excerpts from the report apply equally to the vba, end quote. To determine the scope of this statement at the end of last week, the committee asked afge to inquire whether employees nationally agreed or disagreed with this sentiment. And in less than two days, fast responses were received from 18 Regional Offices. Not one Regional Office employee responded in disagreement. In fact, 16 ros agreed on equivocally. Let that sink in. Vba is still running guns blazing on this questionable path without a real plan, without a real change. So lets begin tonight by reminding everyone again of vbas real mission. And it is, quote, to provide benefits and services to veterans and their families and a responsive, timely, and compassionate manner, end quote. Youve seen the perverse consequence of the mixed metric goals within the veteran health administration. And tonight were going to look at vbas targets. And we will hear whats being done to push claims out the door. Out the door at any cost. 125 days and 98 claimbased accuracy would be a laudable goal if it were at all realistic. Weeks before tonights hearing, we began asking vba to provide this committee with information on the research and analysis that was conducted prior to setting this goal as well as its information on performance standards. Vba has declined to provide timely and complete responses, and in fact, we just got an email a couple of hours before this hearing. The purported responses failed to fully answer the questions that have been asked, and were going to discuss that again later. The vbas 2015 goals were outcomes directed by the thensecretary of Veterans Affairs to make progress. They were a call to action. And however well intentioned, they have now become a distraction from accomplishing true progress. Employees have been working for a year on a 20hour per month mandatory overtime schedule with no end in sight. In fact, we know that vba has not ruled out actually increasing the 20hour overtime mandate. Were going to hear from gao later about how 75 of the Regional Offices that they surveyed have agreements with the local unions that all veterans disability claims work done on this candle burning overtime shall be exempt from any quality review. I look forward to hearing from vba on how thats being sold as a veteranfriendly practice. Now, essentially, its the equivalent of saying, just make a decision and well hope that the veteran doesnt appeal. Chronic incidents of unchecked, oppressive, and vindictive management festers within many of the Regional Offices. And the honest input of expert va employees has been violenced, ignored, and at times punished. Im told that the performance requirements on production and accuracy have been weaponized, if you will, to keep vba employees in check. To what end . Its certainly not in the name of service to americas veterans. It is, instead, to create an appearance of success. Just as vha attempted to do by cooking the books on scheduling times and notifications involving disease. The va office of Inspector General will testify to the potential of over 1. 3 billion in improper payments. The oldest claims initiative, a push that required all claims that were two years old or older to be rated within 60 days, introduced a scheme called provisional ratings. This was another hard and fast deadline dictated by Central Office and vba promised, dont worry, well get them done right. They wont be going out the door without Service Treatment records, without medical exams, if thats necessary. So what was found at the Regional Office . Guidance that read, and i quote, a new va exam request will have a negative impact on our ability to meet the goal that has been mandated by our leadership, end quote. So vba employees were directed to move forward with the evidence of file, even if a medical exam was necessary to decide these ageing claims. Contained in the guidance, and i ask you to look at the screen and members, you should have this at your desk, i quote, from an email where it says, i understand this may be difficult to do and may appear to go against the values of how we do work, end quote. Quote, i want to assure you that and here it is typed in boldfaces there will be no negative consequences for you, the employees, as a result of following this guidance. The only possible negative consequences are those that exist if we fail to meet our goals for this project and for any actions that keep us from doing so, end quote. Vaoigs report issued earlier today stated staff incorrectly processed 83 of the provisional rating decisions that were reviewed. Who is paying the price for vbas selfdefined success . There are roughly 280,000 veterans languishing in three, four, and five years of an appellate backlog. And nearly 240,000 veterans waiting on dependency award adjustments. We then have the complicated case, the old cases, which were lost and then were subsequently found under a contrived and disingenuous interpretation of vbas guidance of may 20th of 2013. Even more egregious, vba has recently put out guidance to the Regional Offices that, unless a veteran puts specific words on their claim form, a form that doesnt provide any space for comment, that the claim condition has existed, that the claimed condition has existed, quote, since service, then a medical exam will not be ordered, and the claim will be denied. Denied. Robert gates, former secretary of defense, recently released his memoir entitled duty which he dedicated to the men and women of the United States armed forces. He writes about va and about his dealings with a former va secretary. The secretary notes, i was staggered when he said his department was in good shape and had no problems, and he continued, id be around long enough to know that when a head of a Department Says his organization has no problems, hes either lying or hes delusional. So ill close my remarks by speaking to vba directly. Whatever hooray you shout, whatever win you take credit for be celebrated. It has been made clear that there is not a corner of vba leadership that will not cut nor a statistic they will not manipulate to lay claim to a hollow victory. What we all want to see, both my republican and democrat colleagues on this committee, is progress, not deception. With that, i now recognize the Ranking Member, mr. Michaud, for his opening statement. Thank you very much, mr. Chairman, for having this hearing this evening. Tonight, we will have an opportunity to continue an important discussion we have touched upon in several of our previous oversight hearings, the Veterans Benefits administration and their progress in reaching goals related to the claims backlog. With the scandals at the Veterans Health administration weighing heavily on us, tonight the committee wants to assess the current state of play at the vba. The agency appears to be making some progress on its goals of eliminating claims backlog by the end of 2015. I do, however, have concerns in the vaoig shares the concern that the resources needed to achieve vas backlog goals are being directed and applied disproportionately ultimately harming other Veterans Services. I refer in particular to nonrating workload, quick start, benefits delivery at discharge, independent Disability Evaluation System and appeals, to name a few. We have heard over and over again of the dangers and failures of a system geared toward defining success based on narrow, fixed metrics. That is not how good Customer Service is delivered and it is not how our veterans perceive success. And why should they . What good is it for a veteran if vba process his or her rating in an unacceptable period of time, but then takes years to add a dependent. From july 2010 to july 2014, the number of backlog dependency claims cases have gone from 9,367 to 192,322. This represents a nearly 2,000 increase. Since march of last year, the number of pending appeals has gone up 12 and continues to increase. And there are personnel issues as well. We have heard reports of an unacceptable practices and challenges at many va facilities. At the baltimore va Regional Office, the oig found that as many as 9,500 documents, including claims, claimsrelated mail, and various other documents containing personal identifiable information have been improperly stored. Lax measures and practices with records to veterans personal information is simply unacceptable. Again, to me, this says vas focus on narrow Performance Measures are not realistic for defining success. Veterans define good timely care and services on their whole experience from start to finish. Thats what makes sense. And its something we must confront in todays hearing and in the larger term as we continue on our important work to reform the va. The department of Veterans Affairs cannot morally claim success in delivering better care to our veterans by touting their progress on the backlog if that progress has come at the expense of delivering other key services to veterans in a timely manner. This work takes an increased urgency as more and more veterans are coming home from Service Abroad in Operation Iraqi freedom and Operation Enduring freedom. To fix the current shortcomings in the delivery of service, we need all of the facts, and we need honesty, frank discussions. Thats what im hoping to get out of tonights hearing, because if we do not base our Reform Efforts based upon what is realistically achievable and what the facts are, we are setting the department of Veterans Administration and more importantly, our veterans, up for failure down the road once again. And i think we can all agree that this is not an option. So tonight, mr. Chairman, i appreciate your calling this hearing because it gives us a chance to take a hard look at what vba needs to do to ensure that it is providing its claims work force with the training and other tools needed to deliver timely and accurate benefits to our nations veterans and their families in all areas of their responsibility. So i want to thank you, mr. Chairman. I yield back the balance of my time. Thank you very much, mr. Michaud. I would ask that all members would, as the committees custom, waive their opening remarks and i would also ask unanimous consent of the committee that we allow some of our colleagues to join us here tonight from the eighth district of pennsylvania, congressman Michael Fitzpatrick and from the seventh district of pennsylvania, congressman Patrick Mckeehan and we may be joined by other colleagues later. Hearing no objection, so ordered. Tonight, we will hear from two panels. The first is comprised of individuals from various vba Regional Offices to include miss kristen rule, authorization Quality Services representative of the Pension Management center at the philadelphia Regional Office, mr. Ronald robinson, Veterans Service representative and member of afge local 520 of the columbia, South Carolina Regional Office, and mr. Javier soto who served as a rating veteran Service Representative and the executive Vice President of local afge 1594 in my home state, the great state of florida, under the supervision of the st. Petersburg Regional Office. The second panel were going to have will contain government witness in the following order. Miss linda holliday, assistant Inspector General for audits and Evaluations Office of the Inspector General, miss holliday is accompanied by mr. Brent arronte, director of san diego benefits Inspections Division office of audits and evaluation. Next will be vba to include the honorable allison a. Hickey undersecretary for benefits and she is accompanied by miss diana rubens, director of the philadelphia Regional Office, who is the former deputy undersecretary for Field Operations as well as mr. Thomas murphy, director of Compensation Service and finally, we will hear from mr. Daniel bertone, director education work force and income security with the u. S. Government accountability office. So i now acknowledge our first panel who is already seated, yield to our colleague, mr. Fitzpatrick for a brief introduction of our first witness. I would like to thank the chairman, the Ranking Member for the opportunity to participate in the hearing and to introduce miss kristen rule. Miss rule is a law school graduate, practicing attorney, commonwealth of pennsylvania, and a former law clerk of the pennsylvania Supreme Court. Miss rule works as a quality review specialist at the philadelphia Regional Office which serves tens of thousands of veterans in my community and hundreds of thousands in the greater region and throughout the country. She is a strong supporter of veterans and has been reporting various types of data manipulation and illegal payments to anyone who would listen. Unfortunately, the va was not listening to her and that brings us to this evenings hearing. In 2012, ms. Rule, frustrated that the va was not responsive, reached out to my office for help. I was inspired by her doggedness and desire to make the va a better organization, honored to work with her to help to get to the bottom of this. So now, mr. Chairman, this evening, with this committee and america as her audience, miss rule will tell her story of what can be described as no less than gross mismanagement at the philadelphia Regional Office. And i appreciate her courage in coming forward and her patriotism in doing so. I yield back. Thank you very much to our colleague, mr. Fitzpatrick. We appreciate you being here with us tonight to introduce your constituent. I would ask that all the witnesses would please rise and raise your right hand. Do you solemnly swear under penalty of perjury that the testimony you are about to provide is the truth, the whole truth and nothing but the truth . Thank you. You can be seated. Each of your complete written statements will be made a part of the hearing record for tonight. Miss rule, you are recognized for five minutes. My name is kristen rule. I have worked for the department of Veterans Affairs since august of 2007. I work at the philadelphia Regional Office as an authorization and quality review specialist. I possess a law degree and have previously clerked for the pennsylvania Supreme Court. Mr. Chairman, committee members, veterans and guests, i have been identified as a whistle blower. I started reporting various types of data manipulation and illegal payments and glitches in the operating system, a system that is responsible for paying out va benefits since july of 2010. I discussed what i perceived as gross mismanagement at the philadelphia Regional Office. I raised many issues, including but not limited to the proper improper shredding of military mail, beneficiaries receiving improper and or duplicate payments, illegal processes with the recovery of funds after an improper payment has been made and not returned, data manipulation, and various other gross misinterpretations of the law. Instead of solving problems, i was and continue to be retaliated against by the va. I have been targeted by middle and upper management at the va for over four years, despite the fact that oig recently confirmed these allegations as will be reflected in their testimony for today. The vas problems are a result of morally bankrupt managers that through time and grade have moved up into powerful positions where they have the power to and continue to ruin peoples lives. I can speak from experience. I do not believe in manipulating data to achieve monetary gain for myself while harming the veterans and their survivors. In 2013, the va issued fast letter 1310 regarding found or discovered claims. A simple reading of this fast letter established that these claims would be few and far between. To qualify for a new data claim rather than using the date stamped when the claim actually arrived at the va office, the claim had to be undiscovered and found in a claim