commercialization phase of the other companies' developed ip. these companies face the same precious to compete in the global marketplace. any other u.s. multinational company is facing today, including the pressure to locate facilities and plants in the u.s. or abroad, threatening the livelihood of thousands of u.s. workers. one of the most effective tax incentives utilized by several european nations is the patent box. my question to you, dr. hines, is ginn the growing diversity of companies in the life sciences industry and the increasingly specialized roles of bringing ip to market and the hundreds of thousands of jobs in the commercialization, development, and manufacturing of these products, how do you suggest that we equitably allocated benefits in the context of a patent or innovation box model? and specifically, as it relates to our competitors around the world who are already moving in this direction. i know this to me appears to be a complication to the tax code, but at the same time, without the companies we'll have fewer dollars coming in from this specific area. >> we can't ignore international competition. the question for the committee is, if the united states isn't going to adopt some form of an intellectual property box or patent box, then what are we going to do? are we going to just ignore what's going on in the rest of the world? it hardly seems like a good idea. but the downside, and peeples ha people have noted this, of the property boxes or patent boxes, unless they're carefully crafted, you could have a serious problem of encouraging too much property being included in the patent box. and you get a lot of revenue erosion that way. and it's pretty undesirable. the issue really is, what are we trying to achieve with the intellectual property box, the patent box? i think the answer should be that we want to encourage activities that we would otherwise lose. and if we find ourselves in that situation, we should find a way to craft one of these things. the rest of the world is doing them and we ignore it at our peril. >> i think i have a different perspective on that. some of the articles by marty sullivan in tax notes describe a lot of the problems with patent boxes. i see this as something that may not end up increasing innovation and just being another vehicle for corporate income shifting. and i would much rather, if you want to increase innovation, to have more -- i don't know, the current incentives may be strong enough. but if you want to have more, just have more tax credits or more generous tax credits for activities in the united states. with regard to what other countries are doing, yes, they are engaged in a race to the bottom to try to subsi siubsigh subsidize their multi-nationals in various ways. we may need to start going after theirs before the situation comes back into balance. it's a troubling situation. that's why i'm very much in favor of moving away from the corporate level and more toward the individual level taxing of individual income that comes from corporations. >> your thoughts on how we would attract other countries' companies to our 35% tax rate and make it competitive? >> well, it's hard as long as you have a 35% rate. that's for sure. and as long as you have a worldwide tax system. but, you know, with the issue with the intellectual property boxes, the justification, the strongest justification is not that they encourage research activities, but that these are businesses that you wouldn't otherwise have unless you offered a favorable treatment. it's not that any one business would necessarily do more international property development as a result of the box, but it's the whole package in attracting companies. >> it appears to me -- thank you, mr. chairman, for the time. i would suggest that if we don't figure out how to frame the conversation, ultimately they're all gone. >> i intend us to get into this a lot more than we are. senator schumer. >> i'll be very brief because we only have a minute or two left on the vote. i'll just maybe ask some questions in writing. first i want to welcome mr. zinman, a fellow new yorker from westchester county. thank you for being here. second, i just want to say i heard what senator carper, senator portman, and senator hatch said on the floor. i believe in international reform. i believe we have to do something about inversions. i believe we have to make our companies competitive. and international reform is a lot easier to bite off than broad corporate tax reform, even though that is desirable in my opinion as well. and i'm still ready to work with the chairman and with all the others. and i know senator wyden is as well, and senator carper, senator warner, senator brown, people who were part of our tax reform international, to get something done, even if we could get it done this year. i'm game to do it, because i think it's really important for american competitiveness. and my advice would be, let's do the international side first, then we can deal with all the complicated issues elsewhere. with that, mr. chairman, i'll yield that my time because i know we have a vote coming up. >> thank you, senator schumer. i know of your hard work in this area and i intend to work with you. i want to just thank all of you for being here. mr. barthold, i had questions for you, and we've run out of time. we'll get those separately. this has been a very interesting hearing from my left to the right here. and i really personally appreciate the time that you've given. i just wish we had more time. but we have three votes on and i guess we're going to have to recess until further notice. thanks so much for being here. . former virginia senator macdonnell is facing penalties. the case is under appeal in the supreme court which will decide whether it was fair to classify the former governor's actions as accepting bribes. you can hear oral argument to the case later today at 7:45 p.m. eastern on c-span. later this evening, a look at the influence of william shakespeare on the 400th anniversary of his death. the folger shakespeare library in washington, d.c. recently paid tribute to the famous playwright. you can watch that program tonight at 9:00 eastern on c-span. it's known as one of washington's premier events, bringing together government officials, members of the press and hollywood stars. c-span has live coverage of the 2016 white house correspondents' dinner this saturday, starting at 6:00 p.m. eastern. our live coverage from the washington hilton hotel includes red carpet arrivals, background on the dinner and awards presentations. 2700 people are expected to attend this sold out dinner. larry wilmore, host of "the nightly show," will headline. this year president obama will give his final speech as commander in chief. join us beginning saturday at 6:00 p.m. eastern, live on c-span. next, a discussion about government surveillance and the african-american community. part of an all-day symposium at georgetown university law center that ran about two and a half hours. >> ladies and gentlemen, welcome back to surveillance, government monitoring of the african-american community, hosted by georgetown law on center of privacy and technology here at georgetown law. we have purposefully for the post-lunch hour scheduled one of the most interesting debates we have this conference. it is a debate about predictive policing and predictive sentencing. for the large majority of american history, police officers' decision to stop a citizen on the street was, in legal terms, predicated upon having reasonable suspicion. and up until very recent history, that was a very human decision. that was, of course, in some cases driven by bias. what happens when a computer makes that decision? what happens when a computer not only makes a decision about who to stop, who to arrest, what happens when the computer makes a decision as to what that individual's sentence should be? those are questions that are the heart of this panel and we have an extraordinary panel here to discuss them. we have chairing the panel, arjun singh sethi, adjunct professor of law at georgetown law, andrew ferguson, david a. clarke school of law, sonja starr from michigan law, and christie lane scott, acting director of the private of civilian liberties at united states justice. welcome our panel on predictive policing and sentencing. [ applause ] >> good afternoon. very happy to be here. we've got four panelists, one moderator, 45 minutes. so let's get to it. sonja, you can get us started by talking about predictive sentencing. >> thank you. thank you, it's an on honor to be here. i am not a surveillance expert, so i'm learning a lot today. i'm here to talk about the use of actuarial risk assessments in the post arrest criminal justice process by which i mean data driven tools used to predict the future crime risk. posed by defendants. these tools pervade almost every step of the criminal justice process, bail, sentencing, corrections, parole decisions. and you'll hear from other panelists about similar methods that are being used for predictive policing. my work focused on critiquing their use in sentencing and parole but many issues are similar across the board. so an actuarial risk assessment is one that bases prediction about the defendant's future crime risk on an algorithm that's grounded in empirical data about the recidivism rates of prior offenders that share the defendant's characteristics. some risk assessment instruments have been created by state corrections departments. e most popular are corporate products, their formulas are proprietary. we know something about the variables that go into it but defendants don't know how risk scores are calculated. what are the variables? the algorithms vary. all contain some variables related to criminal history. the rest vary but there are a few different categories. first, socioeconomic variables which include things like past and present employment, housing situations, financial stability, ability to pay bills, education, next, variables related to one's family background and associates. do you have family members in prison, were your parented parents incarcerated? friends with criminal records? next, demographic variables, particularly gender age, marital status. then, there's some of the instruments include psycho social assessment variables, which are usually based on interview with a corrections official and they ask whether you have an oppositional attitude towards criminal justice system, toward authority, toward social norms, et cetera. so, race you may notice is not among the explicit variables. this was not true -- rather, this was not always true. many parole boards, up until the 1970s, used risk predictions that were explicitly based on race. but modern instruments are race neutral on their face. most variables that i listed, of course, are quite strongly race correlated because they're essentially indicators of poverty. and so we can expect these instruments to have a racially desperate impact. in my view, many of the variables that go into the scores are simply inappropriate and possibly illegal factors on which to base the treatment of criminal defendants. so, most of them, as i said, are merely markers of poverty. and i'm not saying that those things are not correlated or predictive of recidivism risk, right? crime is obviously correlated with poverty in our society. although we should remember that the extent of that correlation may be exaggerated by the fact that what recidivism studies measure, they don't measure crime, that can't be directly observed. they measure getting caught, right? so what you're saying is that people who had these characteristics are more likely to be arrested. and that arrest rate may reflect crime differences but also may reflect simply policing differences. so, but even if we assume that all of those characteristics actually predict crime rates, that doesn't mean that we should use them to decide how much to punish a person. when we tell a judge sentence this person based on a risk score and we treat indicators of poverty or demographics, et cetera, as risk factors in that score, we are explicitly basically telling judges we want to literally punish people for their poverty. that is, their score is determined not by what they did in the case, but by who they are, who their families are, how much money they have. so, i have set forth a constitutional argument against the use of some variables. it's in a law review article. i don't have time to go through detail. it's not especially boundary pushing. there's quite strong existing supreme court precedent that says -- it comes from a case in which they -- the state tried to revoke the probation of a probationer who lost his job and the state tried to defend this, in part, saying, look, there's all of these studies that show people who have lost their jobs and poor people are more dangerous. and the court said, look, you can't lump all poor people together and say just because this person shares a characteristic with people who have committed an elevated level of crime in the past, that this person is more dangerous, that is nothing more than punishing a person for his poverty. that's exactly how this supreme court described it. that is exactly what today's risk assessment instruments do, and i think they run up against that doctrine as well as what should be our moral intuitions. it's somewhat surprising these risk assessment instruments have been embraced by what otherwise progressive advocates of criminal justice reform. risk assessment is a prong in many pending criminal justice reform pieces of legislation. and why is that? i think in part, people hope that it will help reduce incarceration allowing judges to identify low risk people who don't need to be incarcerated. my view is that, you know, that reducing incarceration is an important objective, of course, but that adopting it through measures that prevent the very people that have been the most disproportionately incarcerated, that is people who face markers of disadvantage from taking advantage of it, is not the way to go about it. all right. i have much more to say i'm getting a big stop sign. i'll stop. [ applause ] >> andrew's now going to briefly talk about predicted policing. >> in my opening, i'd like to make one major point, which is when it comes to predictive policing, the color of surveillance is not white. it not black. it's not brown. it's dark. it's hidden. it's secret. it's hard to figure out. predictive policing, the idea that past crime data can allow predictive hot places, hot spots or hot people, persons, through algorithmic number crunching is not necessarily intentionally discriminatory. race is removed from all of the algorithms. the results has impacts on racial justice, communities of color. and that reason is simple and elemental, the police data comes from police. and all of the implicit and explicit biases policing in america today show up in that data. in this way, predictive policing may not be any worse than traditional policing the question is whether it could be better. want to sketch out the reality, scope of objective policing, give you terms and we will discuss it in the question and answer. to give you the sense of scale, predictive policing is only used in major cities like new york, currently being used in major cities like new york, philadelphia, seattle, kansas, and a whole host of smaller cities. there are three main types of predictive policing, ideas that you can predict where burglaries might be, where car thefts, thefts from autos. you have your violence, gang shootings, retaliatory shootings in bars and clubs, and you have your person-based, we can identify the people involved in criminal activity and target them through public health models or surveillance. i want to briefly sketch out what these look like and then we'll talk in the question and answer what to do about them. for place based predictive policing, past crime data, usually just three types of idea. type of crime, location of crime, and time of crime are fed into a computer algorithm to forecast a heightened risk in a particular location. usually these areas are 500 by 500 square foot areas, maybe a city block. and police are handed maps with these red boxes and they go patrol them. the logic is not some algorithmic magic. it's really that some crime is contagious. people burglarize one house and they realize they can do it again and they tell their friends these are the houses you can burglarize. some car theft rings take place in various parking lots because there's some environmental vulnerability. so there is a contagious factor. predictive policing works on that. gang shootings are retaliatory. there are had more sophisticated programs that add in the time of the day, the weather, all these things to be able to forecast an elevated risk in a particular neighborhood at a particular time. the result isn't really a prediction of crime as much as predictions of risk factors in the areas where police can patrol. secondarily there is subject based predictive policing, namely predicting people. chicago's police department has a heat lost, people who they think are more likely to be the victim of a violent crime or the perpetrators of violent crime. those 400 people on the so-called heat list get a knock on the door, by a detective, usually a social worker and maybe a community figure like a football coach. knock knock knock. we know you're on this list. we know you're involved. you goto rielthd, get social service, you go to the left, go to jail. the idea of targeting these people is now part of chicago's policing. in the minute i have lift -- we're only given four minutes. in the minute i have left, i want to address how constitutional rights might be affected by this policing. the 4th amendment protects all of us from unraze nabl searches and seizures. the question is, if you are in that box, that 500 by 500 square foot box and a police officer has been told by the algorithm to be on the lookout for suspicious behavior sees you, have your 4th amendment rights been changed? if you're on the heat list and you have been designated one of the top 400 people most likely to be involved in violent crime, should your 4 -- are your 4th amendment protections changed? the answers are hard. it's not easy. but it goes back to the difficulty of trying to -- why this symposium is valuable. it's shedding some light on the darkness of predictive policing and sentencing. thank you for all being here, and my time is up. [ applause ] >> sha nary is going to stalk about what she's seen with respect to predictive policing and sentence ago the community level. >> my na is. i work for the center for media justice. i'm an organizer there, and i'm also an organizer with our bay area. our bay area black lives matter chapter do direction action training through a couple of different groups across the country. i'm going to talk about three things when it comes really to policing, to predictive policing. so a little bit around the data that was talked a little bit earlier. the money and the lack of accountability, and then what's happening on the ground, right? so the first one is -- and it was kind of brought up -- is the assumption that the data is neutral, which we know is not the case, right? we know and we have historical studies that have proven over and over again that various communities might predict -- might actually do more crime, yet other communities are policed for that crime, right? and if that's the case and that's the data that's going into these maps and going into the studies, then it's only going to continue to produce inaccurate information that relies on racist human assumptions. so that's number one. the other one is that these -- there's an influx of money. it was discussed earlier on one of the panels, and i can't remember exactly which one, around the stingray one in particular, around the amount of money that's coming in either from the seizure of assets from police departments, but also from the federal government over the last 13 years there's been about $23 million that's come in through the department of justice to grant to local police departments four different technological policing solutions and a lot of that has gone into these pro-dicktive policing softwares that are unproven. at this point there are several departments say actually don't work. and because the money comes in through these grants, they're not then given the same kind of accountability for the inflated police department budgets that we're seeing. so we have community members that are fighting for community policing or other kinds of policing structures in their cities. but millions and millions are being funneled for technologies that don't have the same level of accountability. and then the last one really is around like what's happening on the ground. so we have all of these algorithms that are used to really predict crime and to fight crime. but what that means and what's not discussed is it's a continuation of the militarization of our police departments. so ha may kahn from l.a.p.d. spying spoke earlier around the use of drones and the militarization, but these predictive policing practices and technologies were created for the military. they were created to be able to find hot spots in iraq and in afghanistan and are now being used in our departments and police departments across the country because it can take public dollars into corporate -- into large carp ratiorporations the level of accountability and transparency that is required generally for police departments. the other thing that i would say is that there are a lot of different groups that are kind of starting to work on this, right? so you have like ella banker center based out of oakland that is working to produce technology that really then is around holding police accountable. we had the technology earlier that brandon spoke around, s.w.a.t., that's around police accountability and police transparency, so there are ways that communities are responding using technological mechanisms to be able to hold police accountable but don't necessarily know as much around the ways in which predictive policing and predicktive sentencing and the big data is being used against us. so i would say the last thing that i've seen just in conversations that i've had with activists and organizers across the country in a lot of different communities is really that we kind of have a sense of it. like we know that there's money in it. we know that because of the work of organizers across the country, police are on -- there's been a massive spotlight on policing in this country. we know that. and because of that, the answer has been how can we use technology to be able to solve that, and how can we take the human nature out of it and instead using technology to really reproduce historical harms and using the technology, to really reproduce structural racism. thank you. [ applause ] >> and we will conclude with kristi, who will tell us a little bit how the government views both predicktive policing and sentencing. >> good afternoon. i want to specifically thank al var oh bedoya for inviting me here to this important event. i think it's most critical in this juncture within the united states. predictive policing or data analytics post-9/11 is a term of art that integrates crime analysis, crime-fighting technology, intelligence-led policing and more to inform critical prevention and crime prevention tactics. although this term of art is new, the types of detective work to solve crimes is not. and while there are enhanced technical capabilities, there is a distinction need to ensure that adequate privacy and civil liberties predictions are adequately protected. i want to address and sum of some of the points that some of the prior speakers have made with respect to some of the funding, and i'll do that in just a minute. the term predictive policing or data analytics raises fears, understandably so, that the police might engage in illegal practices, that they may overstep their bounds and potentially use that information in an intelligence way that abridges the 4th amendment as well as the 1st amendment and other privacy laws. simply put, the term conjures up images of a minority report society where police are able to arrest individuals before a crime is committed. making predictions, however, is one-half of the prediction led policing and the other part is acting on those predictions. it's important to understand and underscore the relationship between federal law enforcement and state and local government. the majority of crimes are enforced at the state and local level, and within the schematic, it is important for the federal government to provide strong policy considerations that protect communities of color and to ensure that they are not negatively impacted or targeted on the basis of race. there is the need for clearly defined mission in order to understand what information should be collected is clear. in december of 2014, then attorney general eric holder updated the department of justice's use of race policy. this policy builds upon and expanding the framework of the 2003 guidance, and it reaffirms the federal government's deep commitment to ensure that its law enforcement agencies conduct their activities in an unbiased manner. biased practices, as the federal government has long recognizesed including what mr. jim bakker talked about, perpetuate negative and harmful stereotypes. and moreover and vitally important, biases practices are ineffective from a law enforcement perspective. and as former attorney general eric holder stated, such practices are simply not good law enforcement. as privacy professionals and attorneys, we seek to distinguish intelligence and information which determines what is and what is not protected under federal privacy laws. in this vein, privacy officials need to be engaged in policy developments about what information can and should be shared with other agencies. and at the department of justice, these responsibilities are within various offices within the department, and we take a multilayered approach to protecting privacy, civil liberties, and civil rights. as ja nary mentioned, in 2014, the white house released a report titled big data, seizing opportunities, preserving values, and this was the result of president obama 90-day big day to report. this report called on the department of justice to examine and focus the domestic use of predictive policing and specifically to focus on the more complex predictive technologies. for example, not merely mapping crimes that have already occurred and searching databases for specific information, because as we know, the data is only as valuable and as good as it is collected. so if you're relying on older data and not raw data that is actionable, you're not going to get the results that law enforcement needs to work in their law enforcement mission. so one of the things that was important within this report and within this task was that the department established guidelines for the use of state and local law enforcement because as we know, a lot of this is targeted at their level. so although the federal government, because the federalism and other issues can't specifically tell state and local law enforcement how to conduct their business, we can establish policies and standards of conduct that can be used as a milestone or a model for future policing activities. thank you. [ applause ] >> thank you, everyone. i'd like to start off by asking just a very blunt question, and that is are predictive policing and sentencing racial profiling by another name? and i'd like to direct that question to chen ari first. >> hello? okay. so just the short answer of that, i would say. if we are studying the ways in -- there's two parts, right? the first one is the fact that it does rely on old data that is not neutral, right? like that is really the crux of it. the other one is that very similar to what i think sonja said, we have these algorithms that are proprietary. so we don't know what factors go into them and then how these maps are being created. and because of that, there's just a lot that's not there. so i would say between the two of those, it is. it's being able to take communities that are already overpoliced and now finding new reasons and new neutral reasons to police them again and police them more. >> kristi, did you have a response? >> yeah, i think one thing that we haven't explicitly talked about is the need for transparency. when president obama took office, one of the things that he mandated was open government, open data. and i think that one of the things that the governments can do in a real concrete way is to require within -- certainly they're required within the federal government, but basically encourage the state and local law enforcements to have some sort of privacy policy, some sort of privacy impact assessment that lets the public know how the systems are developed, whether or not the proprietary and what are some of the risks in using that data to make sure that there aren't disparity impacts. >> and sonja, and andrew, would that assuage some of your concerns regarding sentencing and police something. >> i think in terms of transparency, it's a key issue we need to focus on. and what happens with congresss like this and debates and discussions like this, is that we can begin demanding that. there isn't transparency right now. there are certain proprietary predictive policing technologies that don't share their information, and there's some that are recognizing that they needo and they will. and i think perhaps in the competitive advantage, those might win out. but the governments, the police who control the data, are not necessarily giving it up. and i think because of that, it's easy to label things as racial profiling where it's actually more complex. we're talking about loss of socioeconomic factors, lots of correlations and an attempt to remove race although you can't remove race from either policing or the realities. but without the transparency, we are left with those labels, and i think it's incumbent on governments and the federal government to lead the way to demand that transparency so we can see what is happening, pull it apart, have data scientists who understand it be able to pull it apart, and look at the consequences. and we don't have that now, and we need it. >> so i think that transparency is certainly important. i think it's an outrage that defendants can be sentenced -- can have their parole denied, can have bail denied on the basis of algorithms that they don't have access to. that said, i don't think transparency is enough, right? that's a procedural problem. there's also a substantive problem with the bases on which the decisions are being made and telling people what the bases is is part of being able to allow them to make the arguments about what's wrong with it. but there's still the substantive problems with the factors that are being included. do i think it's racial profile something i mean it's not literally racial profiling in the sense that race is not included in the instruments. it is certainly profiling, and it's profiling on the basis of a bunch of factors that are inappropriate -- that are inappropriate to use. i wish people would use the phrase "profiling" more often, whether you app end the racial or not because instead when we talk about these predictive technologies, what tends to happen, especially when it's sort of in the discussion of potentially progressive policy reforms, is that we use you've mystic language. we refer to the sentencing predictions as evidence-based sentencing, right? that's an almost or wellian euphemism is the one thing they're not based on -- >> i think your mike may be muted. you just tap it right there. boom. >> did that work? [ applause ] >> it's almost -- evidence-based sentencing is almost an orwellian euphemism because the one thing these predictions are not based on at all is the evidence in the individual's case, right? the evidence all comes from a profile based on what past offenders have done. and i think we like to use sort of an oh dine language because one of the attractions of these things is they take a process that is inherently discretionary and subjective and people are uncomfortable with that subjectiveness, and they make it scientific, right? but, you know, the language of science shouldn't blind us to the fact that we are, in fact, like calculating these scores based on inputs that if you did it in qualitative terms, if you had a judge that says i was going to give you prison but you only make minimum wage, so i'm going to -- and when we do that under the guides of coefficients and a regression that produce a risk score, we should also have those gasps. and i think it will help for us to refer to it as profiling rather than with these sort of technical terms. [ applause ] >> can big data alone ever justify a stop? >> okay, me because i've written an article on it. >> absolutely. >> i say no. i think what has happened is it will database you know, our 4th amendment standard of reasonable suspicion for a stop, you have to have specific and ar tickable factors warrant the belief that criminal activity is afoot, is a pretty loose standard. it's a pretty weak standard. and it's a totality of circumstance standard which means you can take into account anything you want. so you can just imagine being that officer on the street, right? you've been told to go to this block and be on the lookout for a burglary. you go there. there's a person. he's holding a bag. normally holding a bag is not a crime. there's no reason to stop someone. but the algorithm told you to be on the lookout for a burglary, and burglars have bags. can you stop him? i mean that's the question, right? and i think the answer to that is no. i hope the answer to that is no. but the courts are going to have to wrestle with it, about how do you take -- how do you conceptualize this algorithmic tip. it is based on some data. it's not completely fan iful, but it also lacks a nexus to what you saw. it lacks an understanding. i'm sure the officer himself or herself does not understand the basis of it. and yet it's going to be and has -- you know, it has been a justification for stops although we haven't seen the case yet there. but it will be a difficult question for the court to pull apart. is this enough? and, again, my hope when that judge reviews it, they'll say no. but they'd have to have read my article so i don't know. >> one more question, then we'll open it up. can big data be used for intervention, meaning do we feel differently about it if it's used not by law enforcement but by them make the connections, help them make the spaces that have allowed to bring people in to create those organic connections between these. it's for people who really feel the movement and are engaged in the movement to find some way to build those, and how can the institution forward that, which i think there are ways. but on the same token, sometimes the institution is going to be resistant, and i think that's okay. i think the importance of understanding that that's okay and that sometimes we can't -- it can't all come from this and the connections are going to be more ground level is also important for us. >> hi, how are you? so my question is the movement for black lives and how you're dealing with the totality of issues that are very deep, very complex, very historic. so my question for you is, you know, we're sitting here talking about surveillance of communities of color. and many of us are thinking, you know, how can we actually make a difference in this area? my question to you is in light of the totality of issues and how deep and profound they are, is working on an issue like surveillance helpful, or is it small and trivial? i can see it being potentially one or the other, and i don't know what the perception of that is? >> yeah, i would say it's extremely helpful. i think from the point of view of activists in general, one big thing you run into like for example i live in ward 8 in d.c., you know, and every time -- not every time, but all the time people stop me on the street and they're like, man, i love what you're doing but just don't get killed. just don't let them kill you. and it is kind of -- you know, it does sound a little funny but the fear is very palpable because they remember what happens to dr. king and malcolm x and the black panthers. i think this worked to sort of demystify because i think when you can understand something, even when it's challenging to you, it's easier to deal with t. i think it's key. two, i think pushing back on these practices, which are clearly inappropriate. listen, the government has surveilled the occupy movement. they surveilled the black lives matter movement. so these people are completely non-violent. so we actually have to surveil them even more because we have to prove that they're violent. so i mean in a sense that we have this whole range of political surveillance that's happening right now that's not being discussed a lot around it, i think the work to try to push back on that, understand that, put a spotlight on that is incredibly key for our ability to not only do our work but to help understand people what they're going up against and make an important decision about their own ability to get involved. >> one more? >> yes, sir? >> all right. so for those of us who are working on surveillance at a congressional level [ inaudible ] i think the question for you is where are we failing to explain the nuances of this in a way that connects, you know, sort of all these acronyms and numbers to the actual impact that it has on activists? and how can we connect sort of those two spaces in a way that allows the activists to do their work more effectively and more safely? >> yeah. i don't know if you are failing. i would say most activists are people who are real, everyday, down and dirty organizers actually know about that. they try to learn about what's going on with the patriot acts, what other types of things they're doing because it's trade craft from the point of what we do. i think there are connections that can be made and more information that needs to be put out there about what types of political surveillance are going on. i think we've scratched the surface. you know, where i'm from in virginia, they used to use the patriot act against drug dealers? is that happening? so some of that information is getting out there more. i think a lot of it is actually succeeding in getting out there. just, for example, like every black lives matter activist on the planet now is using signals because the knowledge of encryption has gone way up. there are groups that are going around giving people training and things like that about all these different things. so i think there's a high level now of consciousness. so i would say just keep doing the work you're doing because it's getting there. >> wow. how about a round of applause? >> thank you all. [ applause ] >> so when act vis many movement for black lives are using encryption, are they being paranoid? that's a question we're going to take up now. we've heard a lot about the history. now let's talk about current events. let's talk about whether and what the fbi, the department of homeland security, and your local police department is doing to activists like eugene. to start us on that conversation -- and it is a start because we've been talking a lot about data. well, later in the afternoon, we're going to have real data from people who have done foia, freedom of information requests about black lives matters activists. so they're going to reveal some of their findings here. but now a history lesson that starts with september 11th, and our professor will be a real-life professor, sahar aziz. he's the associate professor at texas a&m. she teaches in the area of national security and torts. before she joined the academy, she worked among other places at the department of homeland security. so she'll have lots to teach us. sahar, thank you. [ applause ] >> there we go. all right. thank you so much for inviting me today. it's great to be back in georgetown. i was actually an adjunct here before i went to texas a&m. it's great to see professor butler and the dean and so many other colleagues. and i'm really impressed with the turnout today. not only in terms of number of people but diversity of backgrounds, and i'm glad that we've got advocates keeping us in check so that we don't get too abstract, particularly those of us in the academy. so what i want to talk about today, much of it is in a law review article which is why i can't go into the details so i cited it. i want to talk about the way in which the relationship between the war on drugs affected the war on terror and the war on terror is now boomer anging back to a war on drugs. and of course drugs implicit is the war on attacks. terror implicitly is the war on muslims. i realize that's a very provocative statement but if you look at the way these so-called domestic wars are being enforced, the data is clear if you look at the names of the defendants and their identities. so after -- in britain, after they had experienced terrorist attacks, this is a quote that the americans then adopted and said let's see if we can copy the brits. so they essentially said why don't you use the communities to defeat terrorism, which then brings up ideas about community policing, which was used often in the war on crime, war on drugs. so just to give you a very brief history, and we had a previous speaker who talked about this, is the african-american community in my opinion -- and if you look at derek bell's work and the black/white paradigm and critical race theory, there's a lot of truth to of it. it is sadly the baseline for understanding race in america, race relations in america, discrimination in america. and i think anyone who is working on civil rights with minority communities needs to understand the history of the discrimination against african-americans to see how discrimination against other communities are an offstring up. not necessarily identical. in the '60s and the '70s, part of the surveillance against mar f tin luther king and malcolm x, and what we're seeing here is very connected. it's the same law enforcement agencies. it's the same laws. but they are effectively the same infrastructure, just targeting different communities and just because they add a new community such as muslim does not mean as we've scene today that african-american communities suddenly are imnmun from the same historical problems. we've also seen the expand the left-wing political groups, particularly with regard to surveillance and surveillance is the hook that then leads to the prosecution and leads to the incarceration and the many derivative effects such as the chilling effect in terms of squashing activism. and i've heard a question mark there because if you ask any police officer they've done studies and they show that police officers at the local level have said that if you want to know where the biggest threat to, quote, home-grown terrorism is, domestic terrorism is actually more from right wing political groups, white supremacist groups, militants, domestic militant groups, so people who are -- some of them are completely protected by what they do by the first amendment, and some of them cross more into violence. but ironically that's not where the law enforcement resources are being targeted. and in 2009, there was a report that essentially argued that home-grown, right wing extremism is a problem and something that law enforcement needs to focus on. if you go and look online, the response and the backlash was quite notable, and dhs had to withdraw that report. so what i look at specifically is countering violent extremism. i don't know how many of you know what that is, but it has become a big term of art in d.c. when i wrote this paper, that wasn't the case. so it means that the industrial complex has officially taken off, and there are now financial interests in the ngo sector n the academic sector n the government and in the private sector. so it's something you should be familiar with, and although it facially appears to affect only muslim communities, it's actually very connected to what's been happening in african-american communities and it will probably expand to -- continue to expand to other african-american and other minority communities. okay. so you have a policing infrastructure, and i thought -- i was very glad to see the fbi general counsel here because i took note of the fact that the laws have changed to some extent. one could argue for the better from a civil rights perspective or liberties and some could argue for the worse. but just because the laws have changed to create more quote unquote oversight, sometimes what you're doing is just legalizing surveillance. so they may have overstepped the law in the '60s and '70s, but be careful. sometimes the response, the fix, is to just legalize what they were doing. so and it's no longer extra judicial or extralegal, but it is the same action and the same violations of one's privacy rights if you have high expectations. okay. so after 9/11 [ inaudible ] information sharing. there was no information sharing because of all of the different federal agencies. now you have the complete opposite. it's all very opaque and all very secretive. here are all the different agencies. you've got the police departments, particularly the large police departments. they are now engaged in counterterrorism at the local level. at this point in time, through litigation, through freedom of information act, we're pretty confident that they're focusing on muslim-american communities. but, again, it starts with one particular group and then it expands. you also have an entire infrastructure with centers, but these are state entities where the police departments essentially produce suspicious activity reports. they're not necessarily related to criminal activity, but they're just a form of spying and putting these suspicious reports. they ask businesses to do the same thing. so it's all a form of collection that is tied to national security. and many of the businesses are afraid to push back because they don't want to have any trouble with the government because the politics of counterterrorism is very fear-based. so businesses or third parties who get subpoenaed, politicians, and even members of the public, they're told, well, if you push back, if you defend civil liberties and there's a terrorist attack, there's blood on your hands. it's a very fear driven rhetoric. task forces is where you have police working with all these federal agencies to offensively counter terrorism. facially it sounds very reasonable. the problem, again, is it's very opaque. so there's very little oversight, very little to monitor. even those who issue foias or request transparency, they have to litigate for two years, and you've got local police engaging in counterterrorism that is highly racialized and is stigmatizing communities which then creates distrust between communities and local police. so there are a lot of, i think, conflicts of interest and tensions in the role of the police. and the metadata collection, you all have probably heard of this on the news wh the nsa, but i just wanted to note that this actually had been going on in the '90s with the dea where they were collecting telephone metadata for drug cartels or assumed drug dealers. this is actually not as new as we thought it was or not as post-9/11 as we thought it was. these are some of the things that our police and federal agents are doing. many of them are things that have been happening continue to happen the african-american community. the use of informants, sting operations. we do have racial and ethnic mapping has become institutionalized and the fbi will tell you this is not racial profiling. we're just trying to understand the community. we just want to know the beat that we police. the problem is when you look on the other end of that black box and you see the prosecutions and you see that the identities are kinlt consistent of a particular racial and religious group, it's hard to take that statement as a good-faith statement. and then we've also seen through litigation, when there is litigation, and nypd just settled a case of mass surveillance of muslim communities where they sent undercover agents into mosques. many of those student groups, the muslim student groups along the east coast having undercover agents that infiltrated them and all of that is going into intelligence databases. at that point, that can kree, aside from the privacy issues and the chilling effect, that is a way for them to start targeting people, and then that leads to very tangible, adverse harms on people's rights because once you're on their radar and once you're in their web, it's very hard to get out, and you don't find out until it's too late. this is just an idea of the -- because the informant problem is a very big one. this is not unique to the post-9/11 counterterrorism context by any means. but this is just to show you how 9/11 has offensively put what was the war on crime paradigm -- put it on steroids offensively so you have in 2011 over 15,000 official informants. and all of these individuals, if they're particularly the ones that are paid, have to get paid. the way they get paid is they find a plot. we've had cases -- it was in the media if you look up greg montel in california. he was an fbi informant. he officially converted at the mosque. he essentially went around trying to create a terrorist plot with the people in the mosque. the mosque reported him to the fbi. and said, this guy is crazy, there's something wrong with him, i think he's a terrorist. and the fbi disregarded it and kept working with him and said, have you found anybody, maybe you can have a relationship with a woman and find out if she can tell you something about people. i mean, it was all kinds of very illicit activities. ultimately, he ended upturning on them and he told -- he sued the fbi, but he also told the public exactly what he had been up to and how he had been paid over six digits and he wasn't the only one. so it's a very dirty game. the fbi will say that was an exception, but how many years can you keep saying that. and then of course we have the patriot act. this is literally it's own law class. it's three or four weeks of counterterrorism. but the patriot act changed and expanded the authorities particularly of the fbi significantly primarily by lowering the standards in which they can get these types of warrants. so instead of -- so you have things such as relevance or indicative of or some purpose rather than significant purpose. and for lawyers, that does mean a lot because it's a higher burden to have to meet if you're trying to get a warrant. you also have -- so just if you don't know, this is the business records if you go to the business to get your warrant. the sneak and peek is where you go and get a warrant, but you don't have to tell the person that you're searching their home or car. you go, search it, come back, and later you tell them. which is an anomaly under the normal process. the wiretap, it's essentially not connected to a particular phone or device, but it roves allegedly with the person. you can see how that can become very broad if it's abused. then you have the national security letters which effectively are subpoenas, administrative subpoenas that existed before 9/11, but the patriot act expanded them so all they have to be a relevant to a terror investigation. they're usually issued to banks and businesses and thard parties. and the easiest way to persuade them that it is relevant to a terrorism investigation is to include the name of a muslim-sounding person on the subpoena. and they'll usually say, oh, yeah, we'll cooperate with whatever you want. or south asian or arab sounding name. so there's a lot of racialization in the process. explicitly and implicitly. and then of course you have the fisa court. i appreciated the comments about the fisa court being a check. it is a far from perfect check. it is a secret court which is a complete exception in the american legal system. and so you have judges who are -- they get an application from the fbi or the department of justice and there are internal checks within the department of justice before it gets to the fisa court, but there's no adversary. there's no one on the other side to say on this warrant, i want to challenge it, i want to -- so it's not an adversarial process. it's a secret court. you have the executive and the judiciary. some would argue it's too differential. in the national security context again, you don't want the blood on your hands, judge. i'm not sure i'm convinced that the fisa court is a good check if that's what you look to as solving the problems of the 1960s and 1970s. you also have threat assessments which effectively allow the fbi to follow you physically, to interview people and lie about who they are, the police can lie. it's legal for them to lie. and without any any relevant -- no reasonable suspicion. it can be essentially a non-criminal basis. so they're very, very problematic in the way that they can start focusing in on you. there are tracking devices although we had jones that limited that a little bit. and then of course we all know about the militarization of the police. these are the ways in which the legal tools have expanded their powers. some will say what about the guidance on the use of race. now, this is just guidance. in 2003, which was under bush, there was a very explicit exemption for national security. in other words, if it was related to national security, the fbi and law enforcement could use race as a factor. not from an individualized perspective where you have this particular suspect. that's legal. but in general. now, holder changed that and said we will apply these guidelines to national security and intelligence, he also expanded it to also include religion, gender identity, sexual orientation. but again, when you -- if the hypothetical is isis or daesh is trying to recruit muslims, that gives us a basis that we now need to keep an eye on the muslims and surveil them. we know they're usually between the ages of 15 and 25 and we know they're muslim and they're from a middle eastern country originally. that doesn't give those communities a lot of assurances that they will not effectively be spied on based on their identity as opposed to individualized action or suspicious activity. okay. so all the that is to say others who push back -- what i explained to you is what is called counterterrorism. it's the adversarial, prosecutorial, criminal law enforcement approach. it's not rehabilitative. it's punitive and retributive. there's a movement that's arguing, maybe we need more soft counterterrorism. that's where you get the language of community policing which was the same used in the war on drugs and war on crimes context. i think it's essentially a euphemism. it's a difference without a distinction. this is kind of from the d.o.j.'s policing, if you already have a community policing program, just expand it. we already have the up infrastructure. there's a whole literature about community policing. a debate on whether it works. but this is the more traditional model. this is what i call traditional community policing, war on drugs, war on crime context, is it's often the communities working with the police to protect the communities against a third-party criminal. so it may be a gang. it may be drug dealers. it may be people who are in the community selling violence. they're working with the police with a common interest. in the countering violent extremism. the incentive for the muslim community to work with the police and to beg them not to infringe on their civil liberties. they go and say, could you please stop profiling me at the airport. could you talk to the tsa? could you please tell i.c.e. to stop selectively deporting those of us and deporting our religious imams and religious leaders. i participated in these programs. it was called community engagement at the time and i'll talk about that in a second. so there's a whole different purpose and a conflict of interest. this is what i'm talking about with the distinction without a difference. i think all of this terminology all just goes back to counterterrorism. for that reason, i tend to be a little bit suspect in terms of the narrative that the government gives to the community which is let your guard down, trust us, talk to us, cooperate, and you'll be better off from the civil liberties perspective. but, there are -- let me just go back here very quickly. the problem is that they talk partnership but they act adversarial. so if you look at actions -- those of us are lawyers, it doesn't matter what someone says. it's what they can prove and how they behave. so they go to these outreach meetings and gather information. we have no way to know who that goes to. they'll claim it doesn't do that. talk is cheap. why don't you prove it? are there laws that prohibit you from doing that? you have ausas at the table. i have witnessed situations in boston where you had an ausa in the outreach and the same ausa was prosecuting a muslim individual who used to participate in the outreach efforts. they nabbed him for some immigration information. so it was a huge conflict of interest. but they walk in with straight face and say, what's the problem with that. a huge at least legitimacy problem. and then you have false statement prosecutions. they will use the meetings to go and meet with people the way that law enforcement recruits informants, they'll meet with people in a non-threatening environment, get to know them, build an informant. then they'll give voluntary individuals thinking that they're trying to help the police. they'll make a false statement about something material that isn't necessarily related to terrorism. did you go to yemen? no. turns out he went to yemen to visit his mother, but he was scared to tell them. he thought they'd think something bad. they use that false statement, that's up to five years in jail.

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