Its going . Looking at the Court Decisions that have come down to date. And a corollary of that is does the current analysis under the Fourth Amendment, reasonable expectation of privacy, does it really fit this subject matter . Or is there another way to look at it, perhaps . Another topic is how do we find out in our cases whether this technology has been used . Youve heard from our last panel efforts that have been made by Law Enforcement to keep it secret. How do we determine that it has been used . And for instance, in the instance of the stingray device, even after it was discovered that it was being used, Law Enforcement made an effort to keep the details of how the device worked secret. How do you discover how these devices are used, whether, for instance, they involve a trespass that would evoke the plurality of opinion in jones, how are they attached to something . Do they grab something out of the air . How do they work . And third, what do we do with this stuff . How do we litigate it . How do we specifically raise these issues in court. With that i will direct the first discussion to professor kerr. Id like for you to go first and jim follow up because yours is thank you for the invitation to be here this morning. And especially accommodating like a change in panel. It took me for a while to realize when passover was scheduled for this year. I was like, oops, thats a problem. So i wanted to talk about the situation for the development of Fourth Amendment law in the digital age some of the major fault lines and issues youre seeing. From a defense attorney standpoint theres good news and bad news. The good news is courts are being creative in interpreting the Fourth Amendment as it applies to new technologies. Theyre doing interesting things, theyre expanding Constitutional Rights in a lot of surprising ways. Think of the riley decision recently, the Supreme Courts decision on searching a cell phone incident to arrest. A unanimous decision in favor of rejecting the traditional Fourth Amendment rule and enacting a broad warrant requirement. Kind of a Surprising Development in a lot of the ways as to its unanimity. From a right standpoint good news from defense council. Theres a lot of creative arguments that defense lawyers should be making and can be making that things violate the Fourth Amendment that a few years ago probably would have seemed like very very hard arguments to make are now look easier and easier. And the down side is just as thats happening the Supreme Court is cutting away on the scope of the remedy that matters most to Defense Attorneys. That is, the suppression remedy and cases such as davis v. United states saying no exclusionary rule applies when the court for when the officer relied on thenexisting law. Full disclosure, you can blame me. I argued the case for davis and i lost. So it pains me that i have to keep talking about it wherever i go because i knew this was going to happen and oh, well. Two votes. What can you do . So in effect i think these trends are related, actually. As the courts move away from the exclusionary rule they feel more comfortable creating broad rules because no one is getting out of jail. So the good news from a defense attorney standpoint is the Fourth Amendment is expanding and the bad news is your client is probably not going to benefit much from it. But there are certainly arguments to be made to get around this and we can talk about this. Let me focus on the rights standpoint. So from a standpoint of what is a search or seizure, great cases out there that you should be using if youre a defense attorney with a digital evidence case. You should be relying on theres the jones majority opinion, the trespass case. Nobody quite knows what the trespass theory is in jones. Its really counterintuitive that placing a gps device on a car is a trespass into the car. Its not actually going into the car, its affixed on to the car. Just this week we saw a decision in grady v. North carolina saying that also applies to an ankle bracelet around a gps monitoring bracelet around a persons ankle and they did that without argument even. They just reversed on that ground so on the rights question, theres the trespass argument, the jones concurring opinions which really sort of depart from traditional understandings of Fourth Amendment law by suggesting that monitoring over time could be a search even though individual pieces of collection of evidence are not searches. Thats another thing you should be using wherever you have digital evidence collection because a lot of times digital evidence collection is part of a broader effort to collect evidence. That could be argued to create a mosaic which constitutes a search even if in the traditional context it might not seem like a search. For Fourth Amendment reasonableness we have the riley case which i talked about a minute ago and you should be pushing for riley moments in your cases. Just as the Supreme Court said in riley that the traditional Fourth Amendment rule for search incidence arrest does not apply in the computer context because computers are different, i think of that as the riley moment where the court says we need a new rule and that opens the door for lots of opportunities to make riley moment arguments in other contexts and some courts have already gone in this direction. And so from a rights standpoint theres just a lot of arguments that can be made as to whats a search, whats reasonable, pushing against the doctrine as it exists now with riley at your back and jones at your back and other cases that are suggesting that the courts are open to do lots of creative things. So ill emphasize that part and then ill not talk about the exclusionary rule part because, oh, im out of time. We should move on to someone else. I will probably use the same internal clock to figure out when im out of time. And i may not be the most helpful to defense counsel with their cases because im sort of a onenote johnny. Ive never tried a case or defended a case. But im a one note on how to argue your Fourth Amendment issues. Of course, as practical matter you want to argue the expectation of private. Because thats how its im always intrigued to find many lawyers believe that reasonable expectation of is a prefix to the word privacy, not regarding privacy as a separate condition that exists or doesnt exist without respect to what people think about it. But understand so argue that, but understand that that doctrine is a failure. And i think it wont survive very long, along with the thirdparty doctrine. The Supreme Court hasnt been using reasonable expectation doctrine for the last little while, at least not very much. Sure, a lot of people read jones as being all about that, but that was the concurrence and on the majority opinion. Whats wrong with that test . Well, its not administered very well. Rarely does a court actually examine the subjective feeling of the defendant as to their privacy. The objective part of the reasonable expectation of privacy is actually just a subjective statement on the part of the judge or judges who issued the decision. Usually or as often as not, i should say, in accuracy, it comes to the wrong result and i think that a welldone study of peoples expectations, that is people out in the land, not here in this room, with regard to their telephone dialing information would find that smith vs. Maryland is simply wrong. Most people who arent lawyers, who dont know about smith vs. Maryland and all this stuff would say heck, no, you cant see the content of my phone bill, thats stuff that i have. Its also not a product of the katz decision. Its a product of a solely concurrence in katz. Justice harlan i think was doing his very best to try to capture these difficult problems, the intersection between technology and the Fourth Amendment when he stated what has now become whats called the katz test. But katz actually went down on the fact that the defendant had entered into a phone booth and there concealed the sound of his voice from other people. So in closing himself in a miniature room, of sorts, prevented the information from reaching others and the government accessing it through use of a bug was unreasonable. The majority read your cases, folks. The majority in katz did not decide based on what has now become the katz test, reasonable expectation of privacy. My argument is to obviously use it but also argue for administering the Fourth Amendment the way you would any other law. So you go through it like a student would through a statutory law. The right to be secure against unreasonable searches and seizures in a persons houses, papers, and effects. You go through the major elements of that. Was there a seizure . Was there a search . Was the thing seized or searched protected by the Fourth Amendment . Then you get to the question of whether it was reasonable. The seizure so seizure and search are often collapsed together and that makes it hard to work with sometimes. But there are cases where there are seizures that are not in part of the not part of the search and there are cases where there searches that are not part of a seizure. But jones is a good seizure case because the court found it used the word search but what it was talking about was the invasion of a property right. Kara will send you off on a tangent because it treats the property right and the possessory interest as the same thing. But Property Rights go beyond the possession of a thing but use, administration, benefitting from the profits of having a thing. These are all within the realm of Property Rights according to that bundle of sticks that we learned about in law school. And attaching a device to a car converts the car to the purposes of an outsider, an interloper on this piece of property. So attaching a gps device to a car very much is an invasion of a property right. Its just not the possessory right. So jones didnt lose control of his car, the car wasnt taken away but his car was used by somebody else which is a violation of that right to exclude. So watch for seizures. Very often seizures and searches are mixed because the Law Enforcement officer will look at the underside, this is the seizure, this is is search and there are one or two cases where the court articulates those independently. Searching can happen in a stand alone way and kylo is the best example of that. Thats the case with where Law Enforcement used a thermal imager to access the heat profile on the side of the building. What it did was it made things that were otherwise imperceptible perceptible. Literally a thermal imageer takes heat waves are that are imperceptible to the human eye and moves them a different place on the spectrum so you can actually see the heat as visible. So in ordinary light no one can see what the heat on the side of a building is but using this sort of outre technology, at least at the time, that made visible what was theretofore invisible. There are terms about how to administer a search, in terms of going to subjective intention of Law Enforcement. Were they really, really, really looking very hard at a certain thing . You can call that a search. But even more granular and scientific about taking things from imperceptible to perceptible is when you get to search. Third question, is the thing seized or searched protected by the Fourth Amendment . Thats pretty easily administered. Persons, houses, papers, and effects. We have things people carry, cars are in effect, the court has found, et cetera. Then the question finally is was it or was it not reasonable . This is where the judging happens. And judging has to happen. Theres no test for the Fourth Amendment that gets away from it. But at least the question is focused on the right place which is on whether or not the government was being reasonable when it searched. The way the reasonable expectation of privacy doctrine works is that it examines whether the individual was being reasonable in expecting privacy and thats not what the terms of the Fourth Amendment call for. To apply this statutory style way of working with the Fourth Amendment you really, really have to understand how the technologies work. Let me walk you through a few technologies weve encountered over time to show you how it applies and ill start with mail. Paper is a very handy form factor for cellulose thats lightweight. It has a terrific sort of absorbency of ink and we use paper to put hieroglyphs into a fixed form, letters, numbers and symbols. And in the right order these hieroglyphs convey our thoughts, feelings, emotions, et cetera, et cetera. When folded and concealed in an envelope, the opacity of paper makes those thoughts, feelings, emotions, et cetera, et cetera, imperceptible to others that have not accessed the inside of the mail. And what we find is that when we use these physical characteristics of paper to conceal information, the information gets Fourth Amendment protection. So in ex parte jackson in 1877 which discussed very interestingly the constitutional difference between sealed mail and opened mail like newspapers and flyers, the court said letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection except as to their outward form and weight as if they were retained by the parties forwarding them in their own domiciles. The constitutional guarantee extends to their papers, thus closed against inspection wherever they may be. So using the opacity of paper to conceal information gives you constitutional protection as a matter of physics in the first instance, which is backed by law. Fastforward from 1877 to 1929 and the olmsted decision. Olmsted majority got it wrong, but the dissents were the really interesting ones. Brandeis is neat and all because he said that theres this wonderful right to be let alone, which is maybe a little too broad and quite hard to administer. Look to justice butlers dissent. He argued in fascinating language the contracts between Telephone Companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. Sort of a statement of Property Rights. During their transmission, the exclusive use of the wire belongs to the person served by it. Tapping the wires and listening in by the officers literally constitutes a search for evidence. Lets go back to how that Technology Works. Remember those hieroglyphs we talked about . Written language. Thats an abstraction on spoken language. And when i speak into a microphone, the microphone takes the sound waves, translates that into an analog electrical signal which passes along the wire and is literally passing along this wire here inaudibly and invisibly to anyone. Now, this is immediately being translated back into sound waves to be broadcast out to you. But on this wire the things im saying are inaudible and invisible. Imperceptible to someone coming along the wire. If it was a mile long, somebody spying this wire would not be able to see or hear what was happening on the wire. When they access it, they are accessing information that is mine. This communication on this wire is mine. If the wire is mine or if i rented the wire for this purpose. So its an invasion of a property right to take this communication from me and make a copy of it for yourself. The internet works in much the same way. Taking analog signals, the appearance of my face, the sound of my voice, the things ive typed, the things i say into the phone, and converting them not into analog electrical signals but digital electrical signals broken up into packets and transferred out across the internet. When i hand over this information to an isp, its subject to Contractual Protections so that if you want to talk about the signal itself, the communications as a unit of property, its essentially mine. But ive given an easement in the information to the isp and i have obligated the isp through at least implied contract to make sure that information is maintained in confidence across the internet to its destination. So theres as good an argument until the internet context as there is in the phone context that the communication belongs to the parties among whom it travels. Obviously the details of any given circumstance are you have to navigate through the very, very factspecific instances. But this is a way to administer the Fourth Amendment thats sound, that doesnt rely on the subjective whims of judges in a given situation and over time could restore the strength of the Fourth Amendment, applying it on its terms and consistent with precedent to new technological circumstances. I hope ive at least been interesting and maybe informative. Thank you. Thanks so much for having me. So i want to maybe take a step back and look a little bit at how the current federal policies are really impacting how these technologies are used by state and local Law Enforcement and how that affects the barriers to really addressing some of the technologies in court. So right now we have sort of a bizarre tension happening at a federal level. On one hand we are completely unable to keep pace with the technology development. Congress is legislating not a lot in this area as they are not a lot in a lot of areas. And when we look at some of the issues that have arisen in recent months, it really involves technology thats almost decades old. So for example in the Previous Panel i know you discussed sort of Location Tracking and stingrays and were having a debate right now over those technologies, but they were invented decades ago. And im pretty certain that are theres probably other technologies that are either in the pipeline or even being deployed that we dont even know about yet and we havent even had the opportunity to have a congressional or public debate about. And at the same time that we have sort of this complete inability at a federal level to put in place privacy protections or Civil Liberties protection regarding the use of these technologies, the government is awfully good at getting these technologies out into the hands of state and local Law Enforcement. And so we know that the department of justice and the department of Homeland Security have created Grant Programs. These Grant Programs fund the purchase of surveillance technologies by state and local Law Enforcement agencies and often these grants go out with relatively little strings attached. Theres not really a sufficient oversight and sufficient action by the federal government to make sure that these technologies are used responsibly. So saying all that, what are some of the policy changes that we can push for that will facilitate our ability to challenge the uses of these technologies in courts and will make sure that Defense Attorneys in the public are kind of armed with the information they need to have a debate on what the appropriate use of Location Tracking or radar technology, etc. , is. So i want to leave with four points in particular. The first is i think that we need a federal policy that prohibits the federal government from asking states and localities to deliberately hide the use of technologies. So this has come up in a lot of different contexts. In the stingray dirt box context through foia foia is what the aclu did we found out that the department of justice was asking states and localities not to disclose use of this information. In some instances they were asking state and local Law Enforcement to refer to information that was obtained by these devices as information from a confidential source so that judges would not really have an idea that thats how the information was obtained. In other cases they had asked prosecutors to dismiss cases where Defense Attorneys were seeking to challenge the use of these devices. Weve also seen cases where, you know, when a challenge does go up and is being debated by the courts they offer a very attractive plea deal for the express purpose, really, of trying do avoid a Court Oversight over the use of these technologies. And so i think attacking this problem really requires at a federal level less a federal level prohibition on stopping states and localities from actually disclosing information about these devices to courts. The second piece of it is obviously stopping information going to judges about uses of these devices. Depending on the context, there are cases where judges are being asked for either a search warrant or a pen trap order before Law Enforcement uses these devices. But unfortunately there are a lot of cases where the judges dont know what theyre signing. It sounds kind of shocking. But for example, in tacoma washington, judges signed over 700 orders to use cell site simmlitsimm simulators, stingray boxes. They didnt know because the warrant didnt say what it was. The warrant didnt say here is the device were using and here is how it works and here is what we are doing to the extraneous information that is likely to be collected. And so really allowing judges to do their job has to be a central piece of the federal policies. The third is, you know, i talked briefly about the amount of funding that is going from the federal governments to states and localities to purchase these surveillance devices and its sort of become a blank check. For whatever reason in this area the federal government is not good at attaching a lot of strings to that money. So they have to say if were going to give out into to a particular state or locality to use a particular device that state or locality has to have certain policies in place they have to abide by certain rules and abide by certain standards. Otherwise, its kind of leaving us in the strange place where were pushing out all this technology and were pushing it out in a way that doesnt ensure that its used responsibly. And i think the last piece i would say is, you know, the federal government has been unable to adopt consistent policies in this area with regard to technology. You know, were not seeing public guidance from the department of justice saying, look, if Law Enforcement wants to use a particular technology they need a warrant. Here are the exceptions to warrants and the situations where there can be no exception. And thats sort of leaving states and localities without i think a firm sense of what some either best practices are or at least minimum standards should be. So to really address this problem there needs to be a push at a federal level and from congress to put in place i think consistent standards that the public is aware 1 2 that attorneys are aware of so when theyre confronting some of these issues in court they really have a sense of what the rules of the road are. So having said all of that and all the things that dont exist, what is congress doing . And i guess if i was you that would be the part where i would say sorry, i ran out of time. Unfortunately, i think the answer is very clearly not enough. There have been i think recent efforts by members of congress to do more oversight in this area. But we cant really have a system where members of congress only get upset about something when they read it in a newspaper. Right . We havent created a system where congress is demanding notification prior to new technologies being deployed. They are creating an infrastructure that ensures we really have the privacy debate before its a problem. This is a problem of the general mind set which is use the technology now and think about the consequences later and put in the privacy infrastructure after the fact. So thats i think the piece that congress hasnt attacked how do we create an infrastructure where were able to debate these things before theyre huge problems. I think the one area that Congress Seems to have has taken a stab at addressing is more in the area of National Security and how surveillance technologies are used in the National Security context. Thats probably more a result of daeltds deadlines with various security authorities that force a congressional debate. But without the deadlines and without a clear push from states and localities, practitioners and others to proactively address some of these problems i think we are going to continuously be in a state where the technology has developed and we are ten or 15 steps behind where we should be in terms of the legislation on the federal policies. So that is actually a pretty good segue to what i want to talk about which is what can practitioners do in specific criminal cases and what can folks do at the state level either working through their state representatives or working through the state nacdl affiliate. The answer is i think there is a lot that can be done. So while i dont hold out much hope for congress to do anything about anything i have a lot of optimism about what is happening about what is happening in discrete criminal cases and at the state level. Weve heard a lot of general discussion about the proliferation of these technologies, how theyve trickled down, how judges have been deceived, how theyve been hidden. And i think whats important for defense practitioners a few years ago if you made these sort of claims, you were in a specific case, the judge would have laughed you out of the courthouse and said basically im not going to take you seriously. But we have amassed just straight up evidence that shows that this is happening, its happening at a systemic level across the country. You mentioned tacoma. Its not just tacoma. You know, in baltimore they threw out a case because the officer got up they threw out a case involving they threw out evidence in a criminality case about a stingray device where basically the officer during the suppression hearing was on the witness stand and asked to answer questions about the use of the device. He said judge i have a nondisclosure agreement. And i have the transcript, you can read this. The judge said you dont have a nondisclosure agreement with me, im going to held you in context if you dont veranswer my question. And the prosecutor said you know, what judge, well concede on the motion to suppress. I used to be a federal public defender. I never got a concession on a motion to suppress. Right . This happened in a transcript that is sitting on my computer in a criminal case just a couple not a couple but a you know, the next state over. Right . So thats another example. In florida, the Washington Post ran a story about a guy looking at a fouryear minimum charge on a robbery case involving the use of a bb gun to rob a marijuana dealer of like 100 bucks of weed. They used the stingray to find the guy. The judge ordered the stingray to be disclosed to Defense Attorneys for review. Government cut the guy a probation deal. We can amass all of this to show whats happening, and there will be results. And you know when the government concedes on a suppression motion or when they offer a guy whos looking at a fouryear felony prison term six months of probation, thats a win. Thats a win for that specific client. For criminal defense lawyers that has to obviously be the first priority. But we can use those victories in those specific cases even if they dont result in the evidence being disclosed we use that as evidence to show, judge, were not crazy here. This is not people who wear tinfoil hats telling you this is a problem. This is a documented problem. In tacoma and we are talking specifically about stingrays here, but i think this applies in a lot of other contexts. In tacoma what happened was all the newspaper reporting about the use of stingrays, these mz catchers, resulted in the judges basically having a closeddoor meeting with Police Officers and the Police Department basically saying, okay, judge, fine, well change how we do things. So there is that ability to have change. But its on the defense bar specifically to make hell about this on their specific cases and to look for cases where they think this is at play. If youve got a case where theres a search warrant affidavit or wiretap application that says a source revealed your clients location, youve got to start asking questions like is that source a human . Is that source a computer . Is that source some other thing . If youve got a case that involves the government retaining lots of digital data theyve seized from a computer doing like Forensic Imaging of a hard drive, which if youve ever handled a child Pornography Case or any case that involves a computer you know thats whats happening in each of these cases. You have to start asking questions. How long have they held on to that data . Where are they keeping it . What are they doing with it . What are they going to do when the investigation is over . Are they deleting it . Those questions are important now because courts are starting to grapple with this. Both at the federal level and at the state level. And then once we can make these sorts of discovery requests we can then make the legal arguments. And i think when it comes to the legal arguments to kind of talk to what more specifically oren referred to as the riley moment. What is this weve talked about riley so much. What is it about riley thats significant . To me and this is just my opinion. To me whats significant about riley riley, what is this riley moment moments really two separate things. The first thing is that the court did not feel bound to apply an earlier decision that applied a very different item. So a little bit of background. In riley the ultimate issue was whether the police could search the data on the cell phone incident to arrest. And the government had argued in the 1970s in a case called u. V. Robinson the Supreme Court had said well, you can search a pack of cigarettes found in a jacket as incident to arrest because thats a container and that you can search any container found upon upon the person of the arrestee or in their vicinity incident to arrest. The government argued and many courts agreed including my home court, the california Supreme Court had agreed that a cell sfoen a container just like a pack of cigarettes. The court in robinson did not distinguish the container based on what was in it or the nature of the container and thus, the search was okay. Riley rejects that. Riley basically says saying these two things are similar is like saying and this is in the opinion. Its like saying a ride on a horse is like a rocket ship to the moon. They get you from point a to point b but nothing else justifies lumping them together. And thats the point we have to make when the government comes into court and says the court has already ruled on this 40 years ago, they issued a case, and thats the answer here. And its like no, thats not the answer here. This is different. And the second riley moment, i think, is the courts and this is the courts own language, that there is a quantitative and qualitative difference about that cell phone that triggers a different constitutional perspective on whether or not it can be searched incident to arrest. It goes through four examples of the difference. To paraphrase it quickly, its that a phone stores many pieces of different kinds of data that in combination reveal a lot more about a person. So a phones going to have Text Messages and emails and pictures and apps and all sorts of stuff on it and when you look at all of that that reveals more about a person. The second thing was that even if you only look at one piece of data on the phone theres so much of it that that reveals more about a person. You may have one picture of your kid in your wallet but your cell phones going to have 1,000 pictures on it of what you ate for dinner and who you hang out with and whatnot. And that matters in the constitutional analysis. The other two things the court emphasized is that the data on the phone goes back before the phone is purchased. You buy a new cell phone and in five minutes you set it up and you have ten years of emails all over again. And you know, the fourth point was that phones are so pervasive in Society Today and that all of these things together triggered a different constitutional analysis that was not dependent on what the court said 40 years ago. That approach can work in other contexts. That approach can work when you are talking about cell phone Location Information and a forensic image of a computer hard drive thats seized at a crime scene. That approach can apply to all sorts of other kinds of metadata. And i think we have to make those arguments, you have to make them under the Fourth Amendment. You have to make them under your state constitutional protections because you may end up winning under that law rather than the Fourth Amendment. And thats the riley moment. It has to be a combination of asking questions, causing hell, making discovery requests and showing that we know whats going on or at least we think we know whats going on and weve kind of scratched the surface of whats going on and tying it to i love this phrase you came up with oren this riley moment. That that is where we can take the Fourth Amendment and state law protections. All right. Questions. If you can come up to the microphone there, please. First of all, thanks, you have done a really good job about distinguishing between the fruits of a search and the source of a search. When you look at rule 16 it talks more about getting information about the fruits of a search. So im curious about a couple of things. Especially in the context of federal criminal practice. Whats when i think about confidential informants, thats a way to ask a court to say look, we understand that the source of this information is a confidential informant, so we need to get discovery about that confidential informant. Is there good case law or good guidance you can offer about asking about the reliability of the information gathering device when its not a human but its a machine and in particular im wondering about whether there are kind of standard brady questions you should ask. Saying you know, we have evidence that this kind of evidence gathering is inherently unreliable and therefore its a brady obligation of the government to give us information exactly about what was used and you know whether the device was tested for reliability and whether it was operated by somebody whos trained in using these devices . So i have to give you a caveat. The caveat is im from california. And that means i practice and the ninth circuit. Okay . So thats my caveat. So when people ask me do you have good case law, i say ive got plenty of good case law but its ninth circuit. So take that as it may be. But the ninth circuit has a couple of opinions. They dont talk about electronic surveillance but they actually talk about exactly what you talked about, the reliability of a source of information. And in the specific case, a case called u. S. V. Thomas a case involving a dog, a caninesniffing dog. And in that case the ninth circuit said under rule 16, not necessarily brady but under rule 16, evidence of the dogs reliability is discoverable in order because its relevant to raising a suppression motion. And so ive argued that approach, if it applies to the dog it applies to the technology, right . The dog basically it does what . It tells you about the presence of contraband or not. And actually, the government has argued that the dogsniff cases basically support their use of technology that only looks for contraband electronic files like programs that are able to search a computer files hash image in order to decipher whether the image is a known image of child pornography, for example. To the extent that dog evidence is discoverable i would say that any information about the reliability of electronic evidence gathering would also be discoverable in the same vein. But the key is youre going to have to pin it to i want to raise a suppression motion. So its not discoverable for the sake of discoverable. Its discoverable because i need information about this reliability to make a suppression motion because im going to move to suppress under the Fourth Amendment because they didnt get a warrant. Im going to move to suppress because think theres a franks issue, because i think they werent completely forthright in the wiretap application and im going to challenge whether the basis was correct. I think you can definitely make that argument. You mentioned rule 16. Of course, again, in state court if your state discovery practice is broader than rule 16, and a lot of states have broader discovery rules than rule 16, thats certainly going to be something you want to hinge your argument on too. Anyone else on the panel want to address that question . Okay s p. Yes, sir . Good morning. Steve mercer with the maryland public defender. Mr. Harper, under your framework for the Fourth Amendment does it protect an individuals ability to control personal identifying information and to be anonymous . Well, it depends on the circumstances. If you have taken steps to protect personal identifying information, absolutely yes. Most of most of us share a lot of personally identifying information all the time. By entering the room we share the appearance of our face. By posting on a public forum we share identifiers. When we interact with websites we share the ip address which is essentially an identifier which can be quite reliable. So it depends on the particular factual circumstances and whether or not the person tried to restrain access to the information from others. Theres a really interesting dimension to the license plate tracking that we now know is going on so comprehensively. And thats the license plate. I am pleasantly surprised by the emergence of this issue because i wrote Something Like 14 years ago and testified in congress about the privacyinvasive aspects of requiring drivers, requiring license plates on cars. Nobody at the time i think really what is this idiot talking about . But now we realize that requiring a license plate on a car, because of the technology thats come along, is equivalent to requiring an individual to wear a name tag to walk in the mall, for example. There are some policy differences between the two, but somewhere, someone hopefully in a court will reopen the question whether putting licenses on cars might be a First Amendment problem because it prevents you traveling to a protest or to the seat of government anonymously. The changes are multidimensional, but certainly identifying information is just a special category of general information. Its important if people want to protect their privacy to withhold identifiers. And if they have withheld identifiers, factually keeping them from others then they should be protected just like all over information. Lets take a question from an online viewer. Ill get to you in just a moment. If you are watching this livestream and have a question you can email questions. Nacdlquestions g mail. Com. This one is from robert. And i think youll tell me if im saying this wrong. But he said forbes in 2013 reported that traditional mail was also being tracked, reporting adress information was being scanned, collected analyzed and shared. In essence mail information is metadata. Has this data been used in any cases . I mean, i am sure it has been used in cases because now basically all mail cover information is coming from this broader program. So the way at least according to this 2013 story, the way mail coverage is working instead of an individual request that an individual address, mail is going to be the outside of the mails going to be photographed, everythings photographed. And then its just assembled later on if there is a mail cover. My understanding this is the standard way that mail covers are now executed. I think thats right. I wanted to add one thing. That is correct as far as i know in terms of the mail cover specifically. But whats interesting about that is it shows and this kind of was something that was talked about in the first panel when we were talking about the way the nsa was collecting evidence at a large scale. What you see happens is it trickles down to other federal agencies and then it trickles down to the state Law Enforcement agencies. It starts with National Security collection and then it becomes male covers, license plate readers, then it becomes the d. E. A. Has this was broken in january. The d. E. A. Has or had a call records data base of calls that people in the United States placed to iran. And that was because according to the d. E. I. Iran has a nexus to Drug Trafficking and while maybe thats true, i dont really know, we could all think of other countries that probably have a more significant nexus to Drug Trafficking like our neighbors to the south. And so you see how this trickles down and then you hear about local Law Enforcement data bases of locally collected license plates or biometrics or dna or whatever it might be. And this is the world we live in in terms of how evidence is gathered and used to investigate and prosecute cases. And this is why its especially important for defense lawyers to not only be familiar not just the broad contours of this stuff but the specific contours of it and whats happening in their locality, what is happening in their state whats happening with the Police Department that is collecting information that they live down the street from and start to think of ways to inform the judges about whats going on in the specific localities that are, you know, at issue in their cases. Let me say that in april nacdl will issue a report on the use of mail cover information, reportedly approved i anticipate by a board in midapril and linked to the nacdl website shortly thereafter that will talk about some of the uses of that data and the accelerated usage of it in the last few years. Yes, sir. This is along the lines of the earlier question asking about the reliability of information being used in federal cases. One thing that i have been trying to obtain lately is the fbis cart manual, computer analysis response team. I think it would be tremendously useful in crossexamining fbi agents when theyre on the stand. But at this point ive not been able to successfully track it down. So im wondering if you guys at the eff have had any success with that or if anybody has ever seen it or anything along those lines. Im sure orens seen it. Or maybe not. I havent seen it. And i dont think its been turned over in foia. And i know there was one criminal case, state case i think in South Carolina a couple years ago where there was an issue about whether it should have been turned over and the court said no, it was fine. But i have not seen it. I would love to get my hands on it. I know the nacdl has done foia work to try to get some of the dojs their blue book i think its called and i know they lost that in the District Court and its on appeal in the d. C. Circuit. I agree with you but it goes back to some of the broader points about stingrays and excessive secrecy of some of this technology and that again its up to defense lawyers to kind of defense lawyers are at the forefront of this. Theyre the ones who have the client in court who have the ability to use discovery tools which are going to probably be greater in terms of getting information than just simply foia or pra requests. So youve got to make the requests. I mean, you dont want to make it in every single case. You dont want to look unreasonable. But if you think youve got a concerted case where you can make, it youve got to brief the issue and youve got to make the request. And i know that sucks to hear that because defense lawyers have a million other things they have to do for their clients too but i think this is an integral component to criminal defense in the modern age that lawyers need to be aware of. Lets take another question online. Jumana. This one is from mark pockowitz. If the lawyerclient privilege is negated by Third Party Doctrine has does this apply to maryland versus smith meta data programs . If he uses a thirdparty email provider like microsoft hotmail. Im not aware of a court suggesting theres a privilege in metadata generally. Off the top of my head at least im not aware i mean, the privilege would go to the contents of communications which the courts so far have said are protected under the Fourth Amendment. Theres also a difference between the privilege issue and the Fourth Amendment issue. They sometimes both use the phrase reasonable expectation of privacy but in a different way. So at least as far as i know theyre just distinct questions. I actually think theres an a. D. A. Ethics opinion on the use of email for attorneyclient privilege communications. I dont i was about to say dont quote me on that as ive got five cameras pointed on me. You have no reasonable expectation of privacy here. Exactly. But i think thats actually been settled and i think the a. B. A. Has said you can use it but theyve said you should be really careful with how you use it. And you know, i think its not a good idea for lawyers to email attorneyclient Sensitive Information over email. But thats just my ivan . Ivan dominguez. Theres an inescapeable implication of other constitutional protections that we have as we have this discussion today other than the Fourth Amendment. Mr. Harper you referred to going to a political rally and the First Amendment rights i believe Michael Price from brennan earlier spoke about membership lists. Theres a 1958 Supreme Court decision naacp versus alabama alabama fought to the Supreme Court seeking to compel the naacp in alabama to produce its membership list. The Supreme Court held that they werent able to do that. They did not have the right to that list. Lot of the technologies that are being discussed today seem to permit the indirect securing of such information and im wondering what your thoughts are on the availability visibility and force of the First Amendment argument concerning froe dom inging freedom of association which includes the privacy of ones associations. I think theres a strong argument that the first and fourth support each other for the reasons you articulated and the parallel to that earlier case. Metadata is very informative, and the metadata indicating all the people you contacted, all the people that you contacted at a given time, how long you spoke to them et cetera, et cetera, reveal your associations, reveal your behavior, and the argument goes that knowing that this stuff lacks Fourth Amendment protection, you will selfedit youll selfsensor. So i think thats a strong argument. There are plenty of cases, though, where the same kinds of what we think of as privacy invasions were the same kinds of invasions dont have any communicative First Amendment relevance so i think the Fourth Amendment should also stand on its own, that is your argument shouldnt rely on the fact that theres a First Amendment value at stake in order to get protection for information. The information should be protected as such independent of its communicative substance or meaning under the fourth in fact there was a section, an article i published with the American University law review that the subsection is titled four plus one does not equal four. And just looking at the cases in this area, my sense is that the First Amendment doesnt get you very far in a criminal context because youre dealing necessarily in a criminal context with somebody who in fact was discovered to be engaged in some sort of wrongdoing and that First Amendment cases allegedly. Well, okay. Allegedly. All my clients are instituted dont get me wrong. So youre dealing with a context where usually its going to be relatively clear that at least it was a good faith investigation. The government was trying to find evidence of criminal activity rather than just expose what a group of people were trying to interfere with First Amendment protected speech. Theres a case from the ninth circuit involving namla investigating a group engaged in potential speech theres a good faith test from a First Amendment standpoint that goes beyond what the Fourth Amendment standard would be. Theres no problem with infiltrateing the group, you have somebody on the inside of the group willing to share information with the government, not a Fourth Amendment issue but there could be a First Amendment issue if the purpose of it was to try to interfere with First Amendment expression. The implication of that is if the purpose is not to interfere with First Amendment expression its just a Fourth Amendment issue and the First Amendment issues coined of go away. Otherwise it would be difficult to have any kind a lot of criminal investigations are going to involve revealing what a person did and by revealing what a person did is going to involve what a person thinks, who their friends are, and so if the First Amendment posed a barrier that it would be hard to have investigations. The most protective approach is the ninth circuit which as i interpret it amounted to a good faith standard so the First Amendment issues are there but going to be relatively modest in most cases. Yes, sir. David clark, student at george mason. And i wanted to come back to the role, it can be chelleninging in situations, sting ray a government privilege situation involved or anything like that. Is there a way that you could talk about mr. Harper, or anyone else up there walking through that analysis, especially with technology and judges arent so sure, with what the governments doing is actually egregious enough not just a mistake of law, not an accidental great for Something Like that. Any thoughts about getting the prize which is excluded evidence . Now i can get to the depressing half of my other introductory talk. It depends on what the courts do the exclusionary rule and theres a lot of uncertainty to what the standard is. Until herring in 2009 there was sort of a rulebased approach to the exclusionary rule which was if evidence was discovered through some constitutional means, there was a set of rulebased doctrines standing doctrine theres poisonous tree inevitable discovery and that would tell you in the category of cases should there be suppression and not and if you could show they were standing and the poisonous tree and no inevitable discovery you could get suppression and herring introduces the suggestion that maybe now its more of a case by case was the officer bad in this case were the Police Acting badly. Davis although it nakts a rule maybe its more of a case by case question. Its tricky. The court replaces this costbenefit analysis with a culpability standard. Were the officers culpable, the idea being that culpability would be relevant to deterrence and the deterrence part is relevant to the cost benefit but the court effectively just has this now we think has a freestanding culpability question and then you run into how do you measure culpability. Is that in one case, five officers whose culpability matters. Some courts say we look at whether the officer was culpable in that this case. Youre stuck from the defense perspective when the courts take that approach the violation was sufficiently fundamental or egregious that here we should say the officer is culpable and the difficulty with that especially when the claim is based on some sort of evolving Legal Standard or a fairly novel legal claim is that its going to be hard to argue that an officer was culpable in violating some rule that didnt exist at the time that the officer was acting. Not impossible, because you try to root it in some broader framework. You say well, this is not a novel application of the law. This is actually a fundamental principle that searches require warrants unless theres an exception and the exception should be narrowly construed. Theres arguments you can make but its going to be tough going. And then really i think what were waiting for is eventually the Supreme Court will have to figure out what are they doing with the herring davis loin ofine of cases. Is this a case by case approach to the exclushary ruleexclusionary rule. Theres a lot of uncertainty. You hope you get a judge that takes a narrower approach rather than the broader approach to the exception to the exclusionary rule. Its something the Supreme Court has to resolve and the caveat to that, from the defense standpoint you want to keep the Supreme Court out of this case, out of this issue as much as possible. Obviously if you have a plausible petition youre going to file the petition to get relief to your client but i think the current justices on the Supreme Court are disinclined to apply the exclusionary rule. There hasnt been a winning remedy to the exclusionary rule case in a long, long time maybe 1990, maybe the 19le 0s. Its been a long time, probably reflecting interestingly i think the policies of the reagan Justice Department of the 1980s, which influenced the current justices. You have this weird historical lag, i dont think the scope of the exclusionary role is a major issue today to a lot of people especially with criminal rates down but it is to the current justices, they see cutting back on the exclusionary rule as an important and necessary goal so the ideal would be from the defense perspective, you draw a judge who is going to take you in the midst of this uncertainty going to take a broader view of the exclougsary rule and you hope the justices stay away from this for now. Can i add two quick notes . The first is when youre talking about god faith under davis, so davis which says reliance on binding appellate precedent is god faith, i think thats one of the areas where you can use that riley moment the idea these older cases dont necessarily apply. This has not worked very well in federal court so where this has come up is in cases postjones that involved the installation of a gps prejones right . So after jones was decided its a search to install the gps dwois device. All of the cases in the federal courts the court said this is davis god faith because prejones they were relying on two cases from the 1980s that said you could track a cars location in public. So that argument has been killed in the federal courts. But in the state courts, there have been some state Appellate Courts and state Supreme Courts that have said knots and carab dont control gps and thats not binding appellate precedent for our purposes. That is a minority position to be clear, and thats one example of how you could use that riley moment to kind of further that argument. When youre talking about leon god faith boipdinding reliance on an order that on its face looks good but later found insufficient, one area and this maybe reflects this kind of growing, reflects the fact that state Law Enforcement officers will oftentimes be the ones investigating the case that eventually makes its way up to federal court. In those instances if you can show the state Law Enforcement violated a state constitutional protection or state statute, if you can win the Fourth Amendment issue then you can use the state law as an advantage to defeat the leon good faith. You can argue im glad you created this new rule that you hadnt really thought of before but note that in this state for example police are allowed to do this for 30 years. In california for example from the last panel someone was asking about states overruling the Third Party Doctrine. In 1979 in the case called people versus blair the california Supreme Court said you have an expectation of privacy and your phone records under the california state constitution. You dont have one under the federal constitution, and blair was decided after smith and they said smith says you dont have a Fourth Amendment interest here but under the state constitution you have a state constitutional protection there, so that is we are going to find right of privacy there. If youve got a case where state lawmakers are investigating a case in california records that violate blair, the blair violation does not matter for the Fourth Amendment analysis but the court has to come to a point to decide god faith it could be relevant there. This is where you have to be creative in coming up and understanding and really exploring the interplay when to federal law and state law and these issues because there is room to not a lot of room and im not saying youre guaranteed to win but these are the types of creative arguments i think lawyers have to be making in their cases. Thank you. Hi. How big of a problem for practitioners is technical or technological literacy, and technological literacy for judges and for attorneys . I think its increasingly possible today to be exstromely intelligent, well educated well informed and still not have a basic grasp of how the things you use work let alone the things police are using and the fbi is using, does that play out as problematic in the court . I assume i know the answer to that but if so i know there are mechanisms certainly at judges disposals, maybe not so much as attorneys, appointing special masters or panelist of experts that maybe judges arent making sufficient use of but is that even enough or do we need some coined of systematic approach to making sure that judges and attorneys have the technological expertise they need . I would say it seems like its planning out to be a significant problem. Part of the problem is again the technology is developing exstromely quickly and theres a small number of people who appear to understand how it works. It seems like how it works the crux of whether an argument will work or not. And i think its becoming particularly cute with judges who even though they may have their oresources to reach out to technical experts, sometimes dont even know thats what they should be doing and they may not understand the complexity and how things work. Weve seen this in the nsa contacts right, even judges werent aware of how the Technology Works to collect peoples information and were approving orders without clear understanding of the number of people impacted. And so i do think that theres a need for education at all levels, both with attorneys and with judges and we might even be evolving to a place where having technological or technologist experts become a critical piece any of defense attorney or any litigant litigants arsenal that they need someone who is really a technical expert. I think youre absolutely right and i would add that this is i think the role of defense counsel to educate the judges as to whats happening. They get their information in the lower courts from the briefs and sometimes the briefs take the judges through the technology at a very basic level and sometimes they dont, and when they dont, thats when you have these sometimes opinions that have no idea whats going on or oral arguments and my favorite example of this and some of you will be familiar with it the city of ontario versus kwan 2008, involving pager messages and one of the issues, whether there was Fourth Amendment protection in the contents of the messages. It gets to the Supreme Court and it was briefed by civil litigants not focused on the technological question. They assumed the judges knew this and then the justices were asking questions that the oral argument along the lines, my former boss Justice Kennedy asked the question of if two messages come in at the same time, do they bounce, do they get a busy signal . Thinking telephoning and the lawyers were talking about how the communications go from server to server and it was chief Justice Roberts who asked you mean they dont go directly from the one dwoisevice to the other device . These are questions that make sense if the technology is a black box to you or like the telephone, something people are familiar with and i think its striking that the riley decision last year went out of its way to be sort of technologically savvy, technical authorities and heres what the cloud is and all of these sorts of things. I think probably perhaps as a response to the kwan argument which drouew some negative criticism. Primarily its the role of the defense counsel. What if youre a public defender and you dont necessarily this wasnt your field of expertise. Im an attorney and i Read Everything i can, i still dont get it. Weve hired consultants, technological consultants. We spend a lot of money on that. What if youre a public defender . What are your resources to have the information you need to try to persuade the court . I guess it just feels like maybe a bigger problem than just, i dont know. I would call the Electronic Frontier foundation. Seriously, i would call hattie and what can i do, what researches do you have. You should call me and we actually get lots of calls from proift defense lawyers, from public defenders. I think i get a lot more calls than i used to, which i take as im doing my job right and i think the other thing, too, is we are trying to create more Resources Available like pluginplay resources, like hey, defense lawyers, here is the discovery motion, a template, put in your clients name, tweak it a little bit and file it and thats something that the fed is working on the aclu worked on and one of the things that Defense Attorneys have as an advantage is you know we need to pool our resources and we need to pool our collective knowledge on these doctrines and i think in the last few years theres been an increasing amount of this because this issue has taken, is blown up. Orin talked about the difference when to qwan, without deciding the expectation of privacy and Text Messages sent to a pager, nobody in this room has a pager and in riley, encryption and facebook and webmd and Location Information. So i think there are resources there and we will help you and actually a lot of public defender offices like especially in the federal level they have on staff forensic examiners who are getting more uptodate on this stuff. Im actually speaking in two weeks at the National Defense Investigator Association which is just all public defender and federal defender investigators and just walking them through this stuff and theres definitely a growing awareness and growing collection of resources. Aclu Northern California for example has a great defense attorney guide to sting rays and catchers and you can download it off their website for free and its a great resource. I did a skim of it for the lawyer who worked the bulk of the work and so yeah, there are resources out there, and dont be afraid to ask and nacl is a great resource. Come talk to us. Let me briefly affirm the problem, thats not very helpful but in the way that might expand peoples thinking about this stuff. I served as an Expert Witness a few years ago on a case where a guy was charged with using a false i. D. Ive written about identification a lot, and what they made available to me before i testified was a copy, you know, a xeroxed copy of the i. D. When they plopped it in my hand, i was expecting to see the usual holograms to field just to be able to see the layers in the i. D. Itself and the ridges in there, all koindsinds of security measures you find in i. D. S. They handed me an i. D. Paper shoved into a folio with a glued picture. They hadnt given me in advance the nature of the i. D. They werent prepared to ask me questions that would elicit just how unbelievable this was as an i. D. That would actually fool anybody. So that compromised their ability to examine me as an expert about the technical characteristics of what a false i. D. Is. So again affirming the problem its not just in Information Technology or maybe an i. D. Information technology and lots of different systems that we have, everybodys got to bring up the game. Orins right its the defense bars responsibility to inform the court. Mr. Finley . I ask this question from it a unique perspective automatic a the secretary of nacdl, i have a daughter who is an attorney law student. Most importantly my mother is the number one viewer of cspan. Its friday after 12 00 and i think shes at her cspan support group. I want to ask this question from a bradyan rule 16 perspective. The first panel talked about the proverbial need until a hay stack but i want to address the rest of the hay stack. For most of of our nacdl members, the sting Ray Technology really produced nothing and to those attorneys that are members, this is a massive almost infinite source of reasonable doubt for their clients. So what id like is some perspective from the legal technical standpoint on how we can address these issues in the front end. In other words, telling the court and telling our opposing counsel, hey we want everything actually that you have because you produced nothing that indicates guilt, and if that is 18 messages or 18 million sources of communication that produce nothing thats potentially 18 million arguments of reasonable doubt on behalf of our clointsients. I totally agree with you, but theres going to be a bit of an obstacle and the obstacle is going to come from a couple different places. For example, lets say you want to get, and if youve been a criminal defense lawyer you probably have encountered this, say you want email messages from facebook as a defense lawyer. Youre not getting them because federal law prohibits them from turning that information over to you. They can give it to the government but not to you. There are obstacles to that approach approach. And i think that whats important to note is that these approaches arent like mutually exclusive. Lot of times i give a lot of talks at symposiums like this i talk about the Fourth Amendment issue and they go look this is great, i want them to get a warrant too but the reality is theyll get the warrant and 100 pages of cell phone records putting my client in 50 different locations. I dont care about the Fourth Amendment. I want to challenge the reliability of it. How can i, why dont you guys ever address that . I always say these arent mutually exclusive. Its a multipronged attacked. They didnt get a warrant you challenge that. If they got a warrant and its particularized and they want to use it at trial, you said trial. You can argue the records are precise enough to create a constitutional protection but not precise enough to be reliable and those are not mutually exclusive or intentioned with each other. This goes to the idea of collective knowledge and collective sharing of information amongst the defense bar to mount these challenges and appropriate circumstances. So i think thats the general point. In terms of the specific point like i said, i agree with that. I think the practical difficulty is getting your hands on the data particularly when its the government that has collections with that data. That being said, like i said, ive heard of examples. I know in San Francisco for example the public defender there routinely gets cell site information to prove alibi or to prove its the other guy that did it and those sorts of records you can get from the telecommunications provider. Im trying drawing a blank now, there have been other examples and actually i talked to a lawyer in arizona who did that to get a case dismissed against this client, he had cell site records that showed his clients is nowhere near the scene of the crime at the time it was committed. Again, you cant even make those sorts of requests unless you know that information. Whether you want to go in with the tactic of show me everything, bring it all in, its going to prove reasonable doubt, thats going to depend on the facts of every individual case but again the important piece is to have knowledge and to share resources and figure out what is the best approach in my specific case and to think about maybe the best approach is all four of these approaches, maybe the best approach is to focus on the suppression issue. Maybe the best approach is to focus on a dalbert point unless something else. And again theres room to work on that. Were still kind of struggling and figure that out more specifically but thats something we have on our radar. Anyone else . Ted . [ inaudible question ] you know, this may seem selfserving but one of the great resources itself this past woke we had extensive discussion on the general listserv of of this topic of the card analysis and information provided and just like in riley the answer is but a millisecond away. On that listserv there was much information including access online to a 200page forensic handback produced by the fbi which is incorporated to card, not entirely and someone else posted after davis of supervisors in the card program of discovery. I think for those that are members of nacl i know it was posted on that as well and so those members who were watching certainly go to the general listserv under that discussion and youll find it and if you happen not to be a member, consider becoming a member, thank you. Ill echo that briefly. I published an article in your magazine articulating some of this thinking on modern application of the Fourth Amendment so its a helpful resource. The other thing about the listserv for example when this other woman was talking about where to get resources on technology a simple post to the site will produce technological experts and other people that can provide just the kind of information you need to help you in your cases so i think it is a great resource. Okay. Well have another question from our online viewers and then im going to exercise the moderator privilege and ask a question myself. Id like to get a sense to pull back a little. I know hes dug into a lot of the details but this is two larger picture questions. Weve been talking about this riley moment but one of my questions is where do you see going next . Whats coming through the courts . What do you think might be hitting the Supreme Court and do you have some tv predicting on where you think some of this might go . I dont know if orin or somebody else wants to jump in. I have questions on how these things are being challenged in the criminal cases but several cases im sure if you dont know you can always look at our website. Its is he something not talked a lot about how that shows up in cases and how do you find out if theyre masking it in other ways. I was hoping those two things could be addressed a little bit. So i think the next Fourth Amendment and Technology Issue thats likely to get to the Supreme Court is Fourth Amendment protection for cell site data the records that Cell Phone Companies are coping about where phones are located mostly in Historical Context whenever a call is made or a message is received or sent. So thats my guess as to the issue that will get up to the Supreme Court but it might take two or three years. I dont think there are other issues likely to get there soon at the Supreme Court level. To give you a flavor of what the lower courts are getting some attention, i dont know if in the earlier panel there was any mention of the case of United States versus gainey, fascinate fascinating case from the Second Circuit gives defense counsel a lot to work with and that involved was there a discussion, sorry. There were two searches in that case, one a search warrant in 2003 which seizes a bunch of information about mr. Gaineys customers and in 2006 the government gets probable cause to believe that gainey himself was involved in criminal activity and the government has in its possession the files that were copied from gainiouss computers in 2003 so they get a second warrant based on the probable cause to believe he committed the second crime and search the computers a second time with the second warrant and the Second Circuit says cant do that. Why . Well because when the government copied the files from gainious computers pursuant to the first warrant, the government was allowed to get data which was responsive to the warrant, but there was lots of other stuff that they overseized in which they had to overseize to get the underlying information which the government had in its possession, by conditioning to possess that information on the governments own computer that was a continuing seizure which became unreasonable at some point and that meant the government was not allowed to use that in any case even when the government had a warrant. Think about some of the steps involved in that, one is that its a seizure under the Fourth Amendment to copy files thats one important holding there, which i think is correct and then the second is continuing to hold on to a copy of a seized foil is a a seizure continuing and can be unreasonable and some sort of requirement that the government delete seized files thats a holding which wenot have expected a few yoernlgz when years ago when it came out people said wow thats something people had not been talking about. Its copying a seizure, the implications of longterm storage and another issue that i want to flag for defense counsel is when the government is obtaining contents of email accounts pursuant to a search warrant they are very often preceding that with a 2703f letter. It says please hold onto the contents of the account. Were coming with a warrant later on and so basically if the person might want to delete their foils or if the provider might end up dloeting them somehow theyre preserved. Its kind of a hold this stuff while we go get a warrant. In the Fourth Amendment context, the police are allowed to do that but the rules usually are the government has to be expeditiously getting a warrant. Maybe the seizure can be allowed for 2344 hours sr. Something like that. In the 2703f context the statutory rule is the government can get that for 90 days and they can renew that for another 09 days. Lot of investigations prosecutors upon finding out there is an email account involved they send that f letter and basically are preserving every email account that is possibly involved in the case and they might come back to it two months or three months later. I think theres a significant argument that violates the Fourth Amendment. Under gainious the copying of the seizure and holding of the file is seizure at the government request and being held onto for a long period of time, its not a day. It could be 90 days or 180 days and at spom point the gainious rule kicks in and even pursuant to a warrant that information cant be provided. As i mentioned earlier theres the remedies problems so there would be a god faith argument the government would have of reliance on the statute which may authorize that, so theres the rights versus revenues distinction again. Defense counsel should be making that argument first of all whenever you have an email case you want to find out was there a 2703f letter. Is what youre seeing as the email the fruits of an unconstitutional seizure because the files were there because of the f letter and so thats your example of the kinds of arguments i think were going to be seeing. Im more of a doctrine watcher than a case watcher and i think the interesting trend is away from the reasonable expectation of privacy test, its used less often by the court. Its relied on less often by the court and courts, i sort of tried to stick the first panel with the city of los angeles versus patel case but i think thats an important case that has been argued and not yet decided that will have a lot to say about what doctrine is like in this area. Ordinance in los angeles requires hotels to keep Certain Records of their guests and make those records available to Law Enforcement for the asking. The records actually have to be kept in the lobby or near the lobby so that at any time of day, Police Officers can come in and gather those things. For strange reasons related to the case of rose, the challenge is only to the governments seizure of the records, that is ohm to the police come in and taking the records. But the case is important i think because it shows how poor reasonable expectation of proif privacy doctrine is for administering the Fourth Amendment in this case. Hotel not being a sent yent being doesnt have any expectation at all but its plainly obvious these are the hotels papers and its given in the case that theyre being seized. Is it reasonable for them to be seized for any reason or no reason at any time of day by Law Enforcement . I think the answer is probably no, and whats interesting is how the court gets to that result. It will have a lot to say about things like nsa spying because this is basically relitigating the banks soakcy act cases in 1974 and 1976 after the passage of the Bank Secrecy Act in 1970, the repair cases that said businesses could be required to maintain information about their customers by the government that didnt violate the Fourth Amendment, and then they could be required to turn it over later because they were, the individual didnt have a Fourth Amendment claim on what were business records. So its a wonderful awful twostep around Fourth Amendment protections for any information shared with a third party as discussed on the earlier panel that just doesnt comport with the way life is lived today where vast amounts of highly personal information are shared with third parties all day every day. Thats patel is a very important case to watch taken will tell us a lot. Yes, maam . Tiffany jocelyn with nacdl. It was mentioned the civil cases and what we can expect to come down the pipeline. Based on what weve seen i think there are two issues litigated and potentially remain barriers i think to addressing some of the larger programs outside of the criminal context. One of those obviously is standing. Its been raised and virtually all the cases and the court, if it you look at the governments arguments withstanding, theyre becoming more aggressive in some cases theyre arguing that not only would you have to demonstrate your information was collected, youd have to demonstrate a harm resulting from that. Obviously the more secret information is and the more secret the programs are, the more insurmountable that barrier becomes and we think about the nsa surveillance cases but for ed snowden i think most people accept that we probably wouldnt have been able to get to the stage of litigation thats been in. The second issue thats come up over the years and i think will remain an issue is the state secrets doctrine, and even cases where there is sufficient information to get to court there are plaintiffs who potentially have a standing, the governments ability to really retain under the state secrets adoctrine not recontrol some of that information in the court and undercut the ability to get to the merits of any of these arguments, you know, remains a problem, and so i would anticipate both of those issues continuing to be litigated and sort of remaining i think the main barriers in civil context. I apologize for cutting you off. Tiffany jocelyn nacdl. This was mentioned earlier but employer litigation doesnt seem to work. We cant get the discovery blue book, we cant get the cart manual, they said no you cant get it. We have Edward Snowden whistleblower. Where is the middle ground besides trying to get it through the courts representing criminal defendants we dont know what we dont know. Is it flipping someone in doj, former prosecutor bringing them out and the manual with them. How do we get this information that they wont give us and were not able to get through the court system . I will say theres one middle ground, state public acts request. We talked about stingrays for example. We know a ton about sting rays, because poem love talking about this stuff. I joke at eff we could write a blog post writing sting ray 50 times in the body and it won the most reviewed blog post on our blog and were going to work on that. You just saw a flurry of state public act requests that got a ton of information about this and so even though the federal foya hasnt been super successful, state requests have been successful and on sting rays you saw a ton of it and its led to other requests for other forms of information about license plate reader data which a ton of pra requests were sent to municipalities. The bouty is that the process is much quicker than in the federal foya and usually its been our experience at least that not just in california, but in other states that all sorts of information gets disclosed that would never see the light of day under the federal foya act. The nyclu got a suit they brought with a 25page opinion where the judge basically said all of the sting ray records are published today that i think the county appealed but the public records act works, foya works. Foya can be tedious but it works and pra is a god middle ground. I think another approach, i mean its sort of a hail mary, but its relying on congress to actually do its oversight function. So in the face of a lot of the reports that came out of sting rays you had 12 to 15 senators the department of justice and Homeland Security asking questions, questions about how theyre used, what the policies are, what the restrictions are and i think really leaning on congressional offices to make public the responses they get to those requests and maybe even have congressional hearings so that theres at least some type of public debate as another avenue and always the speech and debate clause. All it takes is one member of congress to reveal something and they can do that. Its a hard avenue. Lot of members of congress may not necessarily be interested or willing to do that, but there is the ability to use public pressure to potentially get information in that way which in another context may not be available. I had one last thing quick. Another approach is to go through the state legislature. Im sure aclu has had the same experience that eff has had, in the last two years the number of phone calls from state legislative offices who want to talk about these issues and not just like sting ray but about digital search and seizure, license plate reader, all of this is blown up and you know, state legislative offices have a role to play here and i have to credit the utah affiliate of the nacdl who got an amazing bill passed through their state legislature i think about a year ago and basically put a parent requirement for everything, like metadata, subskroiber everything has a warrant, in the state of utah. You might be thinking the state of utah only for Law Enforcement but the more, when we write amicus briefs we cite to the stat statutes. As this gets bigger and bigger, that is an indicator of where the public feels about these issues so i think thats another avenue especially if youre in a state where somebody who knows your local representative or if the state nacdl affiliate has a relationship with a member of the state legislature, that is another opportunity where theres a lot of room to work, and i mentioned utah but its the same experience right now in oregon for example. The Oregon Association of criminal defense lawyers is working with the aclu of oregon and legislator to get a great piece of comprehensive electronic proifcy legislation that has suppression remedy answer a warrant requirement for location for cell phones t has great restrictions on license plate reader data. That is also another kind of middle ground approach. I hate to wrap this discussion up, its been so great. I want to thank our discussants for great commentary and you in the audience and online for the Great Questions and again, thank you very much. Our next phase of this is i believe humana is going to tell you about it. Here are a few of the back festivals well be covering this spring on cspan2s back tv. In the middle of way visit maryland for live coverage of the gaithersburg festival, frmer Senior Adviser to president obama, David Axelrod and close out at book expo america in new york city where the Publishing Industry showcases upcoming books. First week in june live for the chicagotry chicagotry printers lit fest with lawrence wroigt and your phone calls this spring on cspan2s book tv. Now former National Intelligence director and ambassador, john neglectroponte says the u. S. Has intervened too much in areas of conflict causing more trouble than would have occurred had certain regimes been left in place. Hosted by the institute of World Politics, this is an hour and a half. Ladies and gentlemen, welcome. My name is owen smith. Im here because im chairman of the board of these two World Politics. On behalf of the board of trustees, on behalf of the institute of World Politics its my pleasure to welcome you. We have this morning, this evening a program thats been developed by a member of our faculty, matt daniels, the founder of you see the name here, gudoval and he heads the center for human rights and International Affairs here at the institute of World Politics. We have the privilege of having with Us Ambassador negroponte. Now im not sure whether i should address you as mr. Ambassador or professor. Because i know in addition to your role as a senior diplomat you are still have one foot in the academy. You told me in the past of your wokely trips to yale. I went to school just up the street from there, about the same time you went to yale, i was at Trinity College and but now i know youre running seminars at the respected Jackson Institute at yale. So as chairman of the stotinstitute World Politics its my privilege here to welcome you here to my family. If you ever get tired of that commute, call me up. The institute we have a unique institution that was founded by 25 years ago, in fact were going to have a 25or event on the 14th of october founded 25 years ago by john lucohawski who is the chancellor and president right now, but we provide education im not going to go through the details but we have eight or nine major masters degree programs and we have a student body studying and were producing graduates who are going into government into the military intelligence and various different aspects of governments. I know you, upon graduating from yale joined the Diplomatic Service and went to vietnam. I understand that in the 80s you were in a place called honduras. My fatherinlaw bill casey was there frequently and i heard a lot of stories about what was going on in that part of the world from him. In the days immediately following 9 11, you assumed the role i think you had already been confirmed but not taken office yet as United States representative to the United Nations. Somehow he had to find his way through so he called the Security Council to get our activities following 9 11 approved by the u. N. And he did a wonderful job doing that. He did such a great job doing that, he got sent to iraq as United States ambassador to iraq. And did a wonderful job there. And the right through your kroer a lot of president s have seen how strong you were so you became i guess you were the first director of National Intelligence. As director of National Intelligence ambassador negroponte had the responsibility of coordinating 17 agencies who were part of what i will call the intelligence community. Im not sure that theyre all agencies that are easily coordinated, because they all have their own spirit, lets put it that way. And now he has a similar role because probably a third to a half of our intelligence apparatus today is probably coming out of the corporate world, and ncia the intelligence and National Security alliance coordinates and provides training for that corporate world and at this point, the ambassador is the chairman of that board. And we welcome him and we look forward to hearing your remarks. [ applause ] i said bill because i was thinking of bill casey, your fatherinlaw, whom i used to welcome to honduras when i was ambassador there. Thank you, owen smith, very much for your kind introduction and i want to thank also matt daniels for having had the idea of organizing this discussion. And so im going to make some remarks for maybe 20 minutes or half an hour Something Like that, about diplomacy and Foreign Policy and National Security issues and then were going to have a question and answer for a while and then well open it up to questions from the audience as a whole. But what i wanted to say at the outset is diplomacy is really older than the republic. I know its sort of selfevident, given what we all know about the diplomacy that was conducted by the founding fathers, but its important to recall it. On the eighth floor of the state department the portrait hanging on the wall at the very end of that ceremonial hall is the portrait of ben franklin, who we referred to as the father of american diplomacy and there was adams, john adams, there was thomas jefferson. These people were instrumental in gaining support for american independence. I dont think we can point to diplomatic achievements of quite such scope and magnitude as was accomplished more than two centuries ago. Support for our independence, the expansion of our territory thereafter, once we became a republic. I was speaking to a group of 600 lawyers last this past saturday evening down in of all places boca raton, florida where they were having their annual outing. And a lot of them were in the Real Estate Department of their law firm and i said you guys just dont know anything about real estate deals. Think about the Louisiana Purchase and think about the acquisition of florida, where were standing, at this very moment and think about sue ward folly, the 67 million purchase of of alaska and again, that is really quite incredible diplomacy, and likewise, the diplomacy of Abraham Lincoln in helping to save our union when our fledgling or not so fledgling but our, you might say early adulthood republic was in dire straits and severe danger of collapsing on itself in some pretty good diplomacy was exerted in order to avoid countries likening gland coming in on the side of the confederacy. That was a real danger at that particular time. So you know when people start telling you that the diplomacy to look at in the 19th century is about maturnick and all those people my answer is look at some of the diplomacy we americans conducted ourselves during that century. Next thing id like to make a few comments about is the issue of leadership because and i mean leadership by our country, really that period of post civil war, after we averted the catastrophe of the union being dwoid divided and we had by the way a president , president lincoln who were really committed to the growth of the United States, and very interested in our expansion westward, and the construction of our Transcontinental Railroad and all of those things. I mean thats what he would have been doing had there not been a civil war. Thats what he really was very, very interested in and by 1870, we had by some reckoning had become the largest in terms of gdp the largest economy in the world, and i think thats an interesting day 1870, to have reached that status in the worlds economy because its not beyond imagination that the country of china will become similarly perhaps the largest country by gdp by overall gdp within the next decade or so this is not an impossibility whatsoever, and it took from 1870 about 40 years really, to the advent of the First World War before we began to play a global role commensurate with our economic strength, so it just causes me to wonder at what point china will be able to convert its obvious economic strength that it has now in to really effective Global Political action. Im not trying to venture any prediction for you, but our own National Experience suggests that this equation if you will, the translation from economic to political power, isnt necessarily automatic, number one, and secondly, it doesnt necessarily happen right away. There are other factors that come into play. In our case it was world war i. It was Woodrow Wilson. It was the role we played in helping bring that war to an end, but regrettably, the diplomacy of wod row wilson which was very proactive he conducted you almost want to say he conducted too much of it himself, but he negotiated the treaty of versailles with the allied powers and as we all know, that treaty first of all, we didnt, wilson didnt succeed in getting it ratified by the senate. I think in part because he was very ill at the time, and just a side bar about the presidency, but thats not a job that is very easy to conduct when you have Serious Health problems and wod Woodrow Wilson had them at the time of the versailles debate. We really planted the seeds of the next war and that brings us to franklin roosevelt, who succeeded in several major respects. First of all in leading our country to building the largest economic machine that had ever been known in the history of nan man, an absolutely extraordinary accomplishment to build that economy while also mobilizing some 16 million people. He pursued a grand strategy in fighting the war that was nothing short of brilliant in terms of managing to delay our own actual entry into the fighting until such time as we really were ready to go into action. And not everybody particularly likes this fact but by making a pact with the devil if you will joseph stalin, in order to, he recognized the necessity that in order to beat hitler you had to align yourself with the soviet union at least during the time that we were actually in the emergency of fighting against the nazi regime. And then lastly, and this i think is where he compares from a diplomatic point of view very favorably with Woodrow Wilson is that he really believed in preparing the postwar period, i think a lot more systematically than Woodrow Wilson had. I mean he and Winston Churchill really started doing that right from the beginning when they pronounced the Atlantic Charter and so forth, and he had a lot of planners down at the state department and the white house elsewhere, working on the postwar system, which of course resulted in the creation of the United Nations and the bretttonwoods economic system, both of which we more or less still operate under today, although more about that subject a little bit later. And he had, i think the foresight and the intelligence to insist, some people goent like it but he insisted on having the veto in the Security Council within the u. N. Charter because he said and judged and i think correctly that otherwise,judged and i think correctly, otherwise the congress would not have, once again, ratified yet another treaty charter ending yet another war. I think he felt for congressional ratification there had to be a veto in the Security Council. And thats how the charter was adopt adopted. Now at the end of the war, as we all know, the United States economy was extraordinarily strong. It represented Something Like 50 of the global gdp. And i would say we had political influence around the world that was commensurate with that tremendous strength. Im not going to take you through volumes of history here but the cold war then sort of challenge the this post war that had been established. It happened write fast. We take the cold war from 1957 and 1947 to 1991 there were a number of major regional conflicts during that time. Most importantly, korea. Vietnam and afghanistan. And we had close brushes a couple of times with nuke year exchanges. I think most especially in the cuban missile crisis when kushav was fool hardy enough to send ships to cuba armed with nuclear missiles, which i think was an irresponsible act on his part. With great skill, i think, the Kennedy Administration its been documented and written about in many ways and makes for fascinating reading one of my favorite books is Robert Kennedys own accounts of those events called 13 days. And we had this close brush with nuclear exchange, but we got past it. So then we moved into the post cold war period, which really started with the political transformation of Eastern Europe in 1989 and 1990 starting first of all, i think i would say with poland. And the fact that there was a polish pope who i think played an extraordinarily Important Role in cat liezing, if you will the end of the cold war. For those of you who are not old enough to have lived in that period new of us professional diplomats believed that this eventually tuz possible. There may be people now that tell you oh, i foresaw it. Believe me we were surprised. And a lot of people were surprised. I think you can count pretty much on the fingers of one hand ronald reagan, gene kirkpatrick was one, a number of others. Dick wahlers. Right. Who was at the u. N. At that time. I think you would agree with me that they were in a minority were they not . Reconciled to this perpetualty of the cold war division. We no longer viewed events around the globe of the prism of east west rivalry. And we went through a period in the 1990s where we thought of ourselves and it was articulated by Madeleine Albright as the sole remaining superpower. And the Clinton Administration also exercised an option, if you will, for a peace dividend, the reduction of defense expenditures and reduction of expenditures for National Security. But that period was relatively short lived and we woke up to the trud shock of the events of 9 1 9 11, the ensuing socalled global war on terrorism which really governed our perspective on World Affairs for half as doen years or so. And included mounting pretty large expeditions into afghanistan and iraq. I got called back to Public Service by the bush administration. Id been retired for four years. Ended up doing four different jobs during the eight years of the bush administration, starting first with being ambassador to the United Nations. And actually, i wasnt confirmed until after 9 11 because my nomination had been held up for irrelevance, political irrelevance. I had a hearing scheduled for september 12. They canceled it. And then they rescheduled it. Dick holm brook left ten months earlier. We really do need a permanent representative in new york. We real then i had the haefring on september 13 and was confirmed unanimously by the entire senate. After waiting desperately for a hearing, it all happened quickly and i made it up to new york. Iraq came on to the agenda fair ly early on. And with the change of administration in 2009 there was a deemphasis of iraq and afghanistan in con nicotines, but all the while maintaining a pretty robust counterterrorism policy, as opposed to, if you will, a counterinsurgency policy and a policy of trying to build the iraqi and afghan nations. I think we put less emphasis on that and weve been putting more on just the counterterrorist aspect. Probably the next time frame, if you will, and perhaps the one were in now is the arab spring and its sequel. It was, i would say, the next watershed, starting with tunisia in early 2011. Since then, the social and political unrest and really the violence has struck the middle east with a vengeance. Egypt, syria libya. And now yemen. The political turbulence of course, has been compounded by the sunni extremists and terrorists whether its al qaeda or in the adjacent areas of africa. Thats been one of the trends that occurred in the last half dozen years or so, the movement of this extremist activity from the middle east to parts of africa. And, of course it continues pretty much unabated in parts of south asia. While all this is going on, and this nonstate actor activity that weve been experiencing we cant neglect the fact that there are rising powers. I mean, we talked about the United States having been represented 50 of the global gdp back in 1945, well, we dont represent that anymore. Maybe were something more approximateing 20 and there are other important rising nations. Most importantly of which, of course, is china. It started to emerge from that situation back in the early 1970s. I had the opportunity to go to china with Henry Kissinger in june of 1972. Ive been watching developments in china ever since. And i remember in 1979 when we established relations with china, i just moved over late 79, early 80 to the East Asia Bureau back to the East Asia Bureau, and i remember us debating about what are we going to import from this economy . We now we recognized china we lifted the embargo. And we were all scratching our heads, what are we going to buy from china . I think the question is from 150 years of weakness, i think they consider humiliation and in many different kinds of situations whether the opium wars or whatever example you choose to cite, sperm concessions for the european powers in china, its a country now is thats come back to its own. I think if you read dr. Kissingers book on china, which is a very thorough history of china from a u. S. Perspective, he makes the point that