tv Fourth Amendment and Technology Panel 2 CSPAN September 2, 2015 4:33pm-6:16pm EDT
is largely responsible for an improved economy, expansion of energy options and less reliance on middle eastern oil. given its history and importance to our economy, attempts to regulate the process should be based on sound science and not science fiction. the record will remain open for two weeks. again i thank the members and the witnesses and we stand adjourned. 5 >> thank you, mr. chairman. the c-span cities tour visits literary and historic sites across the nation to hear from local historians, authors, and civic leaders. you can hear them every other weekend on book tv and on
c-s. with congress on its summer recess, the cities tour is on c-span every day at 6:00 p.m. eastern. today we head to wheeling, west virginia. the first major highway built by the federal government. we'll take a look at civil war battle flags and recount senator joe mccarthy's "enemy from within" speech which he delivered in wheeling in 1950.t next, legal analysts talk about government surveillance and data gathering technologies in the digital age. they examine the role of congress, the courts, and the administration in enacting rules to protect consumer privacy. american university hosted this event. >> >> the senior counsel with the national association of criminal defense lawyers. if you missed it, but if you're watching online and you have questions you can e-mail them to firstname.lastname@example.org
we'll do our best to get them asked. for those tweeting we've been tweeting with the hashtag fourth amendment. so feel free to use that. i want to introduce the moderator of our next panel, who is gerry morris. a sole practitioner in austin, texas who's practiced criminal defense both state and federal for 36 years. he focuses primarily on trial work but also happens appeals and post-judgment relief. he is the president-elect of nacdl and also currently our fourth amendment advocacy committee co-chair. in addition to fourth amendment work that he does including this symposium which he worked on very closely he also works on indigent defense reform and currently working in travis county, texas, on a groundbreaking effort to strengthen the aed counsel system there. please welcome him up to the podium. [ applause ] ant to once again t american university for dedicating the resources and the
staff and all that goes into having us here to put on this symposium. i've asked around and i'm quite confident that this is the mostg comprehensive symposium on this topic that's ever been held. that's both rewarding and a bit concerning because this is not new stuff.ul4-o and the discussion certainly needs to move forward. the panel -- the topic of this panel, it's a good segue from the last panel. we talked in the last panel about what is the technology out there for surveillance, data content, location, what are the techniques available to the government and the devices, technology. this panel is basically going talk about what can we as practitioners do about it? how do we challenge the use of these techniques and devices in our cases?pyñ like the last moderator i'm not
going to give the long introduction because you have the biographies in your materials. our panelists are hanni fakhoury, senior staff attorney electronic frontier foundation. most of you are familiar with that organization and what they do. they're on the cutting edge of these issues. also if you look at the materials you were given when you came in, you'll see the copy of "champion," this month's issue of the national association of criminal defense lawyers magazine. there's an article in here by mr. fakhoury that discusses the riley decision and practice steps having to do with that decision. neema singh guliani, counsel american civil liberties union. jim harper, senior fellow cato institute. and orrin kerr, francis steven research professor of law at george washington university law school.r=ñ when we were preparing for this
panel i proposed three general areas of discussion. the panelists are not limited to these. but to give you an idea of where we're going with this. those areas of discussion are what is the current law, fourth amendment law, regarding these issues and where do we think it's 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? you've heard from our last panel áháhat have been made b law enforcement to basically 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.#!b= how do you discover how these devices are used, whether, for instance, they involve a 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? these issues in court. with that i will direct the first discussion to professor kerr. >> i'd like for you to go first and jim follow up because yours is -- >> thank you for the invitation to be here this morning.if
and especially accommodating --k my slight change in panel. it took me for a while to realize when passover was scheduled for this year. i was like, oops, that's a problem. so i wanted to talk about the situation for the development of fourth amendment law in the digit age, how it looks right now, and some of the major fault lines and issues that you're seeing.6b from a defense attorney standpoint there's good news and bad news. the good news is courts are being creative in interpreting the fourth amendment as it applies to new technologies. they're doing interesting things, they're expanding constitutional rights in a lot of surprising ways.1%rrñ think of the riley decision recently, the supreme court's decision on searching a cell phone incident to arrest. a unanimous decision in favor oç 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. there's 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 downside is just as that's 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 @e74 exclusionary rule applies when the court for -- when the officer relied on then-existing 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)obably not going to benefit much from it. but there are certainly arguments to be made to get around this and we can talk let me first 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 you're a defense attorney with a digital evidence case. you should be relying on -- ah there's the jones majority opinion, the trespass case.?b nobody quite knows what the trespass theory is in jones. it's really counterintuitive that placing a gps device on a car is a trespass into the car. it's not actually going into the car, it's 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 person's ankle and they did that without argument even. they just reversed on that xú7l
ground so on the rights question, there's the trespass argument, the jones concurring f 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. that's 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 o 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 doo 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 there's just a lot of arguments that can be made as to what's a search, what's reasonable, pushing against the doctrine as it exists now with riley at youé back and jones at your back and other cases that are suggesting that the courts are open to do lots of creative things. so i'll emphasize that part and then i'll not talk about the exclusionary rule part because, oh, i'm out of time. we should move on to someone else. >> i will probably use the same internal clock to figure out when i'm out of time. and i may not be the most helpful to defense counsel with their cases because i'm sort of a one-note johnny. i've never tried a case or defended a case. but i'm a one note on how to argue your fourth amendment
of course, as practical matter you want to argue the expectation of private. because that's how it's -- i'm 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 doesn't 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 won't survive very long, along with the third-party doctrine. the supreme court hasn't 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 not the majority of opinion. what's wrong with that test?mz well, it's not administered verh 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 well-done study of people's 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 most people who aren't lawyers, who don't know about smith vs. maryland and all this stuff, would say heck no, you can't see the content of my phone bill, that's stuff that i have. it's also not a product of the katz decision. it's 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 pw what's 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 person's 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 but jones is actually a good seizure case because the court found -- it used the word "search" but what it was talking "search" butas the invasion of 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 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. it's just not the possessory right. so jones didn't lose control of his car, the car wasn't 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. searchatqjan happen in a stand alone way and kylo is the best example of that. that's 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 imager 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 a different place on the spectrum to you can see the heat as visible. so in ordinary life no one can see what the heat of the building is but using the technology at the time, that made visible what was there to for invisible. that was a search. there are ways to strer a -- administer a search. going to law enforcement. we were really looking hard at a thing. you call that a search. but being more granula and scientific of taking things from imperceptible to perceptible is the search. third question. is the thing seized or searched protected by the fourth amendment. persons, houses, papers and
effects and cartilage, and people things carry, cars and the effects that the court found. and the final question is was it or was it not reasonable. and judging has to happen. there is no judging from the fourth amendment that gets away from it. but it is focused in the right place, and that is whether or not the government was being re -- reasonable, and the individual is being seasonable in respecting privacy and that is not what the terms of the fourth amendment call for. to apply this sort of statutory style way of working with the fourth amendment, you have to really understand how the technologies work. so let me walk you through a few technologies that we've encountered over time to show you how it applies. and i'll start with mail. paper is a very handy form factor for cell los that is
light weight. it has a terrific sort of absorbancy of ink. and we use paper to put high row glifs into a fixed form, numbers, forms and symbols ab they convey our thoughts, feelings, emotions, et cetera, et cetera. when folded and it concealed in an envelope, the paper makes those thoughts, feelings, emotion, 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 interestingly
the constitutional difference between sealed and open mail like newspaper and flyers, the court said packages of this kind are as fully guarded from examination and inspection as to the outward form and weight as if they were retained by the parties forwarding them in their own dom isil. the constitutional guarantee is closed against inspection, wherever they may be. so using theo passity of paper gives you constitutional protection, as a matter of physics in the first instance which is backed by law. fast forward from 1877 to 1929 and the home stead decision. the majority got it wrong but the decents were the interesting one. brandize is need because he said there is this wonderful right to be let alone which is broad and hard to administer, but look to justice butler's dissent.
he argued the contact between telephone companies and the users are the communications belong to the parties, between whom they pass. sort of a statement of property rights. during the transmission, the exclusive use of the wire belongs to the person served by it. tapping the wires and listening in by the officers, literally constituted a search for evidence. let's go back to how the technology works. remember the high row glifs we talked about, written language, that is an abstraction on spoken language. and when i speak into a microphone, and that takes the sound waves and translates that into an analog signal and passes through this wire and it is passing along this wire here inaudibly and invisibly to anyone. this is immediately being translated back into sound waves to be broadcast out to you. but on this wire, the things i'm
saying are inaudible and imvisible, imperceptible to someone coming along. someone seeing this wire, could not see or hear what is 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 minor if i've rented the wire for this purpose. so it is 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 i typed and said into the phone, an converting them into digital electrical signals and broken up into packages and transferred across the internet. when i hand over this information to an isp, it is subject to contractual
perceptions. so if you want to talk about the signal, the communication as a unit of property, it is essentially mine but i've given an easement in the information to the isp and i've obligated the isp through implied contract to make sure that information is maintained in confidence across the internet to its destination. so there is as good an argument in the internet context as there is in the phone context, that the communication belongs to the parties among whom it travels. obviously the details of any given circumstance are you have to navigate through the very, very fact-specific instances. but this is a way to strer -- administer the fourth amendment, that is sound and doesn't 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 to precedent to new technology circumstances. i hope i have 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 effects the barriers to really addressing some of these 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 legislativing not a lot in this area as they are not in a lot of areas. and when we look at some of the issues that have arisen in recent months, it really involves technology that is almost decades old. so for example, in the previous
panel, i note you discussed -- you discussed sort of location tracking and stingrays and we're having a debate right now over those technologies but they were invented decades ago and i'm concern there are some in the pipeline or deployed that we don't know about yet and we haven't 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 protections, regarding the use of these technologies, the government is awfully good at getting the 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. there is not really a sufficient
oversight and suv acti-- suffic action by the government to make sure the technologies are used responsibly. so saying all of that, what are some of the policy changes that we can push for to challenge the tule in courts and will make sure that defense attorneys an the public are kind of armed with the information:v9z they n to have a debate on what the appropriate use of location tracking or radar technology is. so i want to leave four points in particular. the first is i think that we need a federal policy that prohibits the federal government from asking state and localities to deliberately hide the use of technologies. so this has come up in a lot of different contexts. in the string ray dirt box context, drew foia, at the aclu, 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 the judges wouldn't have an idea of 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 the devices. we've also seen cases where -- when a challenge does go up and is debated by the courts, they offer an attractive plea deal for the express purpose of really trying to avoid a court oversight over the use of these technologies. and so i think attacking this problem really requires at a federal level less -- federal level prohibition on stopping states and localities from actually disclosing information about these devices ÷íí] courts. the second piece of it is obviously stopping information
going to judges about using 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 has been a lot of cases where judges don't actually know what they are signing. and it sounds kind of shocking. for example in tacoma, washington, judges signed over 170 orders to use cell site simulators, stingrays and dirt boxes and they didn't know that is what they were approving because the warrant application didn't say that is the device, an here is how it works and here is the people impacted an here is what we're doing with the information collected. and allowing judges to do their job has to be a central piece of the federal policies. the third is -- i talked briefly about the amount of funding that is going from the federal government to state and
localities to purchase the surveillance devices. and it sort of has 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. and i think there needs to be more congressional involvement to say if we're giving out money to a state or locality to purchase or use a particular device, that state or locality has to have certain policies in place and abide by certain rules and standards. otherwise, it is kind of leaving us in this strange place where we're pushing out all of this technology and pushing it out in a way that doesn't ensure it is used responsibly. and i think the last piece i would say is, the federal government has been unable to adopt consistent policies in this area with regards to technology. we're 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, here are the situations where there can be no exception.
and that is sort of leaving states and localities without, i think, a firm set of what the best practices are or what minimum standards should be. so to address the problem there needs to be a push at a federal level and from congress to put in place consistent standards that the public is aware of and that attorneys are aware of. so when they are confronting some of the issues in court, they really have a sense of what the rules of the road are. so having said all of that and all of the things that don't exist, what is congress doing? and i guess if i was you, i would say sorry, but we ran out of time. [ laughter ] unfortunately, i think the answer is very clearly not enough. there have been, i think, recent efforts by members of congress to do more over site in this area but we can't have a system where members of congress only get up set about something when they read it in a newspaper, right. we haven't created a system where congress is demanding
notification prior to new technologies being deployed where they are creating an infrastructure that ensures that we have the privacy debate before it is a problem. and i think it is all really a part of the general mindset which is let's use the technology now and think about the consequences later and put in the privacy infrastructure after the fact. and so that is, i think, the piece that congress hasn't attacked and how do we create an infrastructure where we're able to debate these things before they are huge problems. i think the one area that congress seems to have taken a stab at addressing is more in the area of national security and how surveillance technology is used in the national security context. that is probably more result of deadlines with the various national security authorities that force a congressional debate. but without the deadlines and without i think a clear push from states and localities, practicers and others to proactively address the
problems, i think we'll continuously be in a state where the technology has developed and we're always about 10-15 steps behind where we should be in terms of the legislation on the federal policies. >> so that is actually a good segway to what i wanted to talk about, which is what can practitioners do in their specific criminal cases and what can folks do at the state level, either working through state representatives or working through the state nacdl affiliate because the answer is, i think there is a lot that can be done. so while i don't hold out much for congress to do anything about anything, i have a lot of optimism about what is happening in discrete criminal cases and at the state level. and so we've heard a lot of very general discussion about the proliferation of the technology and how they have trickled down and how judges have been deceived and they've been hidden.
and i think what is important for defense practitioners, a few years ago, if you made these sort of claims, you're in a specific criminal case and the judge will laugh you out of the courthouse and say i'm not going to take you serious will you. but we have amassed evidence showing this is happening, at a systemic level across the country. you mentioned tacoma. it is not just tacoma. and in baltimore, they threw out a case because they -- the officer got up -- they threw out a case involving -- they threw out evidence in a criminal case about a string ray -- stingray device where an officer was on the witness stand and asked about the device and he said i have a nondisclosure agreement and i have the transcript and he said you don't have that with me, i'm going to hold you in context if you don't answer my question and the judge sudden we'll concede on the motion to
suppress. i used to by a -- be a federal public defender and never got a concession. that is on a transcript in a criminal case in just a couple -- well not the next state over, right. so that is another example. in florida, "the washington post" ran a whole story at a guy liking at a four-year minimum charge on a robbery case for a bb gun to rob a marijuana dealer with $100 worth of weed and they used the stingray to find the guy. the judge ordered the sting way to be disclosed and government cut the guy a probation deal. and when the government concedes on a concession motion or offering a guy looking at a four year felony term, six months of probation, that is a win and a win for that specific client.
and for defense lawyers that has to be the first priority. but we can use the victories in the specific cases even if they don't result in the evidence being disclosed, we show judge, we're 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're talking specifically about stingrays here but i think this applies in other contexts. in tacoma, the newspaper reporting about the use of stingrays, the mz catchers, resulted in the judges and the police department saying we'll change how we do things. so there is that ability to have the change and to lock for cases where this is at play. so if you have a case where there is a wipe tap application that says a source reveals your
clients's location you have to ask questions like is that source a human, a computer, some other thing. if you've got a case that involves the government retaining lots of digital data that they've ceased from a computer doing forensic imaging of a hard drive, which if you've handled a child pornography case, you know that is happening in each of the cases, you have to start asking questions. how long have they held on to the data. where are they keeping it? what are they going to do with it? what are they doing when the investigate is over. are they deleting it? because this is important because courts are grappling with this at the state and federal level. and then we can then make the legal arguments. and when it comes to the legal arguments to talk more specifically about what or in referred to as the reilly motion.
but what is it about reilly that is significant, and this is my opinion, but what is the reilly moment, is two separate things. the first thing is that the court did not feel bound to apply an earlier decision that involved a very different item. so a little bit of back ground, in reilly, the ultimate issue is whether the police could search the data on the cell phone incident to arrest and the government had argued that in the 1970s in a case called u.s. v. robinson, they said you can search a pack of cigarettes found in a package so the government had argued and courts had agreed, including my home court, the california supreme court had agreed that a cell phone is 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. well, reilly rejects that. and reilly basically said saying these two things are similar and this is one of the best lines in the opinion, it is like saying a horse -- a ride on a horse is like a rocket ship to the moon. they both get you from point a to point b but nothing justifies lumping them together and that's the point we have to make when the government comes into court and says, judge, the court already ruled on this. 40 years ago, they issued a case and that is the answer here and it is like that is not the answer here. this is different. and the second reilly moment i think is the courts -- and this is the court's own language, there is a quantitative and qualitative difference about the cell phone that differs whether it can be search incident to arrest. and it goes into four examples of the difference and to paraphrase it quickly, it is that a phone stores many pieces
of different kinds of data that in combination reveal a lot more about a person. so a phone will have text messages and e-mails 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 even if you only look at one piece of data on the phone, there is so much on it that reveals more about a person. so you may have one picture of your kid in your wallet, but your cell phone has a thousand pictures on it of what you ate for dinner and who you hang out with and what not. and that matters in the constitutional analysis. the other two things the court emphasized was the data on the phone goes back before the phone was purchased. like you buy a new cell phone and in five minutes you set it up and you have ten years worth of e-mails all over again. and the fourth point was phones are so pervasive in society today and all of these things together triggered a different constitutional analysis that was
not dependent on what the court had said 40 years ago, that approach can work in other contexts. that approach can work when you talk about cell phone location information, that approach can work when you talk about a forensic image of a computer hard drive that is 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 and under your state constitutional protections because you may end up winning under that law rather than the fourth amendment and that is the reilly moment. so it has to be the combination of asking questions, causing hell, making discovery requests and showing that we know what is going on, or at least we think we know what is going on and we've scratched the surface and tieing that to this -- i love this phrase you came up with, or in, this reilly moment, and that
is where we can take this in the reilly questions. >> all right. questions. if you could come up to the microphone there, please. >> first of all, thanks. ufr done a good job about distinguishing between kind of the fruits of a search and the source of a search. and when you look at rule 16 it talks about getting information about the fruits of a search and i'm curious about a couple of things. especially in the context of federal criminal practice. what is the -- when i think about confidential informants that is a way to ask a court to say look we understand the source of this information is confidential informant and we need information about that and is there good case law that you can provide about asking about the reliability of the information-gather device, which it is not a human but a machine, and in particular i'm wondering about whether there are standard brady questions to ask. you know, we have evidence that this information gathering is
unreliable and it is a brady obligation to of the government to give us information exactly about what was used and whether the device was tested for liability and whether it was operated by somebody who is trained in using these devices. >> so i have to give you a caveat. the caveat is, i'm from california. and that means i practice in the ninth circuit. so when people ask me do you have good case law. you have it but it is ninth circuit. so take that as it may be. but the ninth circuit has a couple of opinions. they don't talk about electronic surveillance, but they talk about the reliability of a source of information. and in the specific cases, called u.s. v thomas, it is a case involving a dog. a canine sniffing dog. and in this case, the ninth circuit said under rule 16, not necessarily brady, but under rule 16, evidence of the dog's reliability is discoverable,
because it is relevant to raising a suppression motion, right. and so i've argued that that approach -- like if it applies to the dog, it applies to the technology. the dog, it does what? it tells you about the presence of contraband or not and the government has argued that the dog sniff cases support their use of technology that only looks for contraband electronic files like programs that are able to search a computer files hash image to decipher whether it is a known image of child pornography for example. so to the extent that dog evidence is discoverable, i would say that any electric -- electronic evidence-gathering would be discoverable in the same vain. but the key is you have to pin it to, i want to raise a
suppression motion. so it is not discoverable for the sake of discoverable, but it is discoverable because i need this information to make a suppression motion because i'm moving to suppress under a fourth amendment because they didn't get a warrant or because i think there is a franks issue and i don't think they were completely forth right in the wire tap application and i'm going to challenge whether the basis was correct. so i think you can definitely make that argument. and you mentioned rule 16. and of course, again, in state court, if your state discovery practice is broader than rule 16 and a lot of states do have broader discovery rules than rule 16, that is something you want to hinge your argument on to. >> anyone else on the panel want to address that question? okay. yes, sir. >> good morning. steve mercer with the maryland public defender. mr. harper, under your framework for the fourth amendment, does it protect an individual's
ability to control personal identifying information, and to the anonymous? >> well it depends on the circumstances. if you have taken steps to protect personal identifying information, absolutely, yes. now, most of us share a lot of personally identifying information all of 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 an identifier that can be quite reliable. so it depends on the particular factual circumstance and whether or not the person tried to restrain access to the information from others. there is a really interesting dimension to the license plate tracking that we now know is
going on so comprehensively. and that is the license plate. i'm pleasantly surprised by the emergence of this issue because i wrote something like 14 years ago, and testified in congress, about the privacy invasive aspect of requiring license plates on cars. nobody at the time i think -- what is this idiot talking about. but now we realize that requiring license plate on a car because the technology that has 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 multi dimensional. but certainly identifying information, it is just a special category of general information. it is 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 other information. >> let's take a question from one of our online viewers and then i'll get to you in a moment. >> just a reminder, if you are watching this live streaming, e-mail to nacdl questions at gmail.com. and this is from robert greer and he will tell me if i'm saying this wrong. he said forbes in 2013 reports that traditional mail was being tracked, reporting that address information was being scanned, collected, analyzed and shared and collecting it as metadata.
has this data been used in any cases? >> i mean, i'm sure it has been used in cases, because now basically all mail cover information is coming from the broader program. so that -- the way -- at least according to the 2013 story, the way mail covers are working instead of it being an individual request that then individual addressed mail is -- the outside of the mail is going to be photographed, everything is photographed an then it is just assembled later on if there is a mail cover. so my understanding is this is just the standard way that mail covers are now executed. >> i think that is right. i wanted to add one thing. that is correct as far as i know in terms of the mail cover specifically. but what is interesting about that is it shows, and this was something talked about in the first panel when we were talking about the way the nsa was collecting evidence in large scale.
what you see happens is it trickles down to other federal agencies and state law enforcement agencies. so it starts with national security collection and then becomes mail clovers and -- covers and then license plate readers and then the dea, this was broken in january, they had a call records data base of calls that people in the united states placed to iran. and that was because according to the dea, iran has a next us -- a nexus to drug trafficking, and we could think of other countries that have more drug trafficking like our neighbors to the south and so you see how this trickles down. and then you hear about locally collected license plates or biometrics or dna or whatever it may be. and this is the world we live in, in terms of how evidence is gathered and used to investigate and prosecute cases and that is why it is especially important for defense lawyers to not only
be familiar not just with the broad contures of this stuff, but the specific contures and what is happening in their locality and in their state and with the police department collecting information that they live down the street from and start to think of ways to inform the judges about what is going on in the specific localities that are 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 by our board in mid april and linked to the nacdl website shortly thereafter and it is going to talk about the uses of the 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 that is being used in federal cases. one thing that i've been really
trying to obtain lately is the fbi's cart manual, computer analysis response team. i think it would be tremendously useful in cross-examining fbi agents when they are on the stand but at this point, i've not been able to successfully track it down. so i'm wondering if -- if you guys at the eff have had any success with that or if anybody have seen it or anything along those lines? >> i'm sure or in has seen it and i don't think it was turned over in foia. and i think there was state case i think in south carolina a couple of years ago where there was an issue about whether it should have been turned over and i think the court said no it is fine. i haven't seen it. i would love to get my hands on it. i know the nacdl have tried to get the internal manuals like
the blue book and they lost that in the district court and it is up on appeal in the d.c. circuit court. and i agree with you. but it goes back to the broader points of stingrays and secrecy about the technology. and then again it is up to defense lawyers to kind of -- the defense lawyers are at the forefront of this. they 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 you have to make the request. you may not want to make it in every single case and make it look unreasonable, but if you look like you have a concerted case you have to make the issue and make the request. and i know that sucks to hear that because defense lawyers have a million other things to do for their clients too but i think this is a integral thing that the lawyers need to be
aware of. >> let's take another question online. >> this is from mark parko witz. if the lawyer-client privilege is negated by third party doctrine how does this apply in the smith versus state metadata. if an e-mail sends something, if you used something like a third party e-mail, like microsoft hotmail. >> so i'm not aware of a court suggesting there is a privilege in metadata generally. so i -- just off the top of my head, at least, i'm not aware. the privilege would go to the content of the communication which the court said are protected under the fourth amendment. but there is also a difference between the privilege issue and the fourth amendment issue. they both use the phrase reasonable expectation of privacy but in a different way. so, at least as far as i know, they're just distinct questions. >> i actually think there is an
a.v.a. ethics opinion on the use of e-mail for attorney-client privilege communications. don't quote me on that as i have five cameras pointed at me. >> you have no reasonable expectation of privacy here. >> exactly. and i think that settled and the ava said you can use it but you should be careful with how you use it. and i think it is not a good idea for lawyers to e-mail attorney-client sensitive information over e-mail but that is just my opinion. >> ivan. >> yes. ivan dominguez. there is an inescapable 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 first amendment rights. i believe michael price from brennan spoke about membership lists. there is a 19158 supreme court decision, naacp versus alabama
sought to compel the naacp to produce the membership list. the supreme court held they couldn't do that and didn't have the right to the list. a lot of the technologies being discussed today seem to permit the indirect securing of such information and i'm wondering what your thoughts are on the availability and advisability and the force of the first amendment argument concerning the freedom of association including the privacy of one's associations. >> i think there is a strong argument that -- that the first and fourth support each other. for the reasons you articulate and the peril of that earlier case. metadata is very informative. and the quote, unquote, metad a metadata, indicating all of the people you contacted, all of the people 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 self edit and self sensor. so i think that is a strong argument. there are plenty of cases, though, where the same kinds of -- what we think of as privacy invasions, the same kind of invasions don't have any communication first amendment relevance so i think the first amendment also should stand on its own. that is your argument shouldn't rely on the fact there is a first management 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 subsection is titled four
plus one does not equal four. >> just looking at the cases in this area, i mean, my sense is the first amendment doesn't get you far in a criminal context, because you are dealing with somebody who was in fact to be discovered in wrongdoing and that the first amendment -- >> allegedly. >> well okay. allegedly. all my clients are innocent too, don't get me wrong. so, you're dealing with a context where usually it will 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. there is a case from the ninth circuit, and it is involved nambla, where they said
investigating a group engaged in potential speech like that, there is a good faith test from a first management standpoint that goes beyond what the fourth management standard would be. there is no fourth amendment of in filt rating the group. you can have someone on the inside of the group willing to share information with the government. not a fourth amendment issue but it could be a first amendment issue if the issue was try to interfere with first management expression. and you cannot interfere with the expression and the first and fourth amendment issues go away. and a lot of criminal investigations will involve revealing what a person did and by revealing what a person did it will involve what a person thinks and who their friends are and so if the first -- the first amendment imposed a barrier to that, it is a lot to have a lot of criminal investigations generally. so the first approach i've seen is the ninth circuit, which as i
interreceipt it, amounted to a good faith standard. so the first amendment issues are there but they are modest in most cases. >> yes, sir. >> hi. david clark. student at george mason. and i wanted to come back to the exclusionary rule and it can be very challenging in situations like stingray, when there is a government privilege type 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 kind of analysis, especially with technology and judges aren't so sure what -- what the government is doing is actually egregious enough or not a mistake of law or accident of administration or anything like that. so any thoughts about getting the prize, which is excluded evidence? >> yeah, so this all -- now i can get to the depressing other half of my introductory talk.
it depends on what the courts do with the exclusionary rule and now there is uncertainty as to what the standard is. so until haring, in 2009, there was a rule-based approach to the exclusionary rule which was if evidence was discovered through some unconstitutional means there was rule-based doctrine. the standing doctrine, fruit of the poison nuss tree and should there be suppression or not and if you could show they were standing and fruit of the poisonous tree and you could get suppression. and hairing introduces the suggestion it is more of a case by case, was the officer bad in this case or were the police acting badly. and then davis, although it enacts a rule, also suggests that maybe it is a case by case question. it is tricky because the court replaces this cost benefit analysis with a culpability
standard. were the officers culpable? the idea being that culpability is relevant to deterrence and that is rell tablet to the cost -- relevant to the cost benefit but the court has this free-standing culpability question. and then how do you measure culpability. is that in the one case. if there are five officers, whose culpability matters and some courts are saying we look at whether the officer was culpable in this case. if we find a bad actor and then we'll suppress and then you are stuck from the defense perspective when courts take that approach, saying the violation was sufficiently fundamental or egregious that here we should say the officer is culpable and the difficulty with that when the claim is based on an evolving legal standing or a fairly novel legal claim is that it is going to be hard to argue that an officer was culpable in violating some rule that didn't exist at the
time that the officer was acting. not impossible, because what you do is try to root it in a broader framework. you say, well, this is not a novel application of the law. this is a fundamental principal that searches require warrants unless there is an exception and the exception is narrowly construed. there are arguments you can make, but it is tough going. and then really what i think we're waiting for is eventually the supreme court will have to figure out what are they doing with the haring-davis line of cases. is this a case by case approach to the exclusionary rule or a rule based approach to the exclusionary rule and right now there is a lot of uncertainty. and so you hope you get a judge who takes a narrower approach rather than a broader approach to the exception to the exclusionary rule. but it is ultimately going to be something the supreme court has to resolve. and then the caveat to all of that, from the defense standpoint, you want to keep the
supreme court out of this case and issue as much as possible. so obviously if you have -- if you have a plausible cert for petition, you will file the cert petition to try to get relief to your client but the current justices on the supreme court are -- are disinclined to apply the exclusionary rule. i think there hasn't been a winning remedy to the exclusionary rule case in a long, long time. maybe 1990 or maybe the 1980s. so it has been a long time. probably reflecting, interesting, the policies of the reagan justice department for the 1980s which influences the current justices. you have a lag. where the exclusionary rule is not a major issue today, especially with crime races down. but it is to the current justices, they see as cutting back on the exclusionary rule as a important and necessary rule. so the ideal is from the defense
perspective is you draw a judge in amidst of the uncertainty is going to take a broader view of the exclusionary rule and you hope the justices stay away from this for now. >> can i just add two small -- real quick notes. the first is when you are talking about good-faith under davis, so davis which says reliance on binding appellate precedent is good faith. i think that is one of the areas where you can use that reilly moment, the idea that these older cases don't necessarily apply. now this has not worked well in federal court so where this has come up is in cases post jones that involve the installation of a gps pre-jones. so africa jones was decided it is a search to install the gps device. what happens to the place where the gps installed gps before jones was decided. and all of the cases in the federal courts, they said this is davis good-faith because pre-jones they were relying on knots and carrow, who cases from
the 1980s that said you could track a car's location in public. so that argument has been killed in the federal courts. but in the state courts, there have some been state appellate courts and supreme courts that said knots and carrow don't control gps an that is not binding appellate precedent for our purposes. that is a minority position to be clear. and that is a minority position even in the state courts. but there have been a few decisions. and that is one example how you can use the reilly moment to kind of further that argument. and then when you are talking about lean on good faith and reliance on an order that on its face looks good but later found to be insufficient. and one area, and maybe this reflects this kind of growing -- the reflects that state law enforcement officers will oftentimes investigate the gate that 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, while that doesn't necessarily mean you win on the fourth amendment issue, if you can win the fourth amendment issue, then you can use the state law as an advantage to defeat the lean on good faith and argue, i'm glad you created this new rule that you hadn't thought of before but in this state, for example, police have been allowed to do this for 30 years. i'll give you a concrete example. in california, from the last panel, they asked about states overruling the third party doctrine. california has overruled it. in a case called people versus blair, the california supreme court said you have a reasonable expectation of privacy in the state constitution. and they said smith says you don't have a fourth amendment issue but under the state constitution you have a state constitutional protection so we are going to find right of privacy there.
so if you have a case where state law enforcement are investigating a case in california where they get records that violate blair and that case goes to federal court, the blair violation does not matter for the fourth amendment analysis but if the court has to come to a point to decide good faith, it could be relevant there. and that is where you have to be creative in coming up and understanding and really exploring the inner play between federal and state law on these issues because there is room to -- not a lot of room and i'm not say you are guaranteed to win, but these are the types of creative arguments i think lawyers have to be making in their cases. >> thank you. yes, ma'am. >> hi. how big of a problem for practitioners is technical -- or technology literacy. and for judges and for attorneys. i think it is increasingly possible today to be extremely intelligent and well educated
and well informed and still not have a basic grasp of what you are using and let alone what the police are using. does that play out in court. and if so, i know the answer to that. but i know there are mechanisms at judge's disposal, such as appointing special masters or panel of experts that the judges aren't making sufficient use of but is that enough or do we need some kind of systematic approach to making sure that judges and attorneys have the technology expertise they need? >> i mean, i would say it seems like it is playing out to be a significant problem. part of the problem is again the technology is developing extremely quickly and there is a small number of people who appear to understand how it works. and how to works can often go to the crux of whether an argument will work or not. and it is, i think, becoming particularly cute with judges, even though they have the resources to reach out to
technical experts, don't even know that is what they should be doing and may not understand the complexity of how things work. we've seen this in the nsa contacts, where even judges weren't aware of how the technology works to collect people's information and we're approving orders without clear understanding of the number of people impacted. and so i do think that there is a need for education at all levels. both attorneys and with judges. and we might even be evolving to a place where having technology experts become a critical piece of any defense attorney or any litigants kind of arsenal, they need someone who is a technical expert. >> liza, i think you are absolutely right. and i would add that this is -- i think the role of defense counsel is to educate the judges as to what is happening. they are mostly getting their information, especially 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 don't. and when they don't, that is when you have -- sometimes opinions that have no idea what is going on or oral arguments. my favorite example of this and some of you will be familiar with it is the city of ontario versus quwan case that the supreme court argued now in 2008 i think it was, involving text or pager messages and one of the issues was whether there was fourth amendment protection in the context of the messages and it gets to the supreme court and it was briefed by civil litigants not focusedond technology question. they assumed the judges knew this. and the judges were asking questions at the oral arguments, and my former boss, justice kennedy, do two messages come in, do they bounce, thinking telephones and they talk about how it goes from server to
service. and i think chief justice roberts said they don't go directly from one device to the other device. and these are questions that make sense if the technology is a black box to you or just like the telephone or something people are familiar with. and i think it is striking that the reilly decision last year went out of its way to be sort of technology savvy to cite a lot of technical authorities and here is what the cloud is and all of these sort of things. i think perhaps as a response to the quwan argument which drew fegive -- negative criticism. >> but what if you are a public defender, right, and you don't necessarily -- this wasn't your field of expertise. i'm an attorney and need to know something about technology to make my argument and the way i do, i read everything i can. and i still don't get it. we've hired at the brand center technology consultants and we spent a lot of money on that.
what if your a public defender, what are your resources to have the information you need to try to% wait the court. i guess it just feels like maybe a -- a bigger problem than just -- i don't know. >> i would call the electronic frontier foundation. seriously. i would call henne and say what can i do, because they are great on these sort of issues. >> you should call me. and we get a lot of calls from private defense lawyers, from public defenders. i think i get a lot more calls than i used to, which i take it as i'm doing my job right. and i think the other thing too is we're trying to create more resources available like plug-and-play resources. like defense lawyers, here is a discovery motion. it is a template, put in your client's name and tweak it and file it and that is something that the acl and others have
worked on. and one of the things defense attorneys have as an advantage is we need to pool our resources and our collective knowledge on the doctrines. and in the last few years there has been an increasing amount of this because this issue has taken -- is blown up and orin talks about the difference between quwan and text messages sent to a pager, which nobody in this room has a pager and reilly where they are talking about encryption and facebook and web md and location information. so i mean, i think there are resources there and we'll help you and call -- and a lost public defender officers, like specially on the federal level, they have on staff forensic examiners who are getting more up to date on this stuff. i'm actually speaking in two weeks at the national defense investigator association which is all public defender and federal defender investigators and just walking them through
this stuff. and there is definitely a growing awareness and collection of resources. the aclu in northern california has a great guide to stingrays and mz catchers and you can download it off their website for free. and it is a great resource. i did a skim of it who did the bulk of the work. so there are resources out there and don't be afraid to ask and nacdl, afc, aclu. come talk to us. >> and let me affirm the problem, and it is not helpful in a way that might expand people's 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. i've written about identification a a lot. and what they made available to me before i testified was a -- a copy, a xerox copy of the i.d. when they plopped it in my hand,
i was expecting to see the usual holograms, to feel -- to be able to see the layers in the i.d. itself, any ridges in there, all kinds of security measures that you find in i.d. and they handed me like paper shoved into a folio with the picture glued on it. they haven't given me in advance what the nature of the i.d. and so they weren't prepared to ask me questions that would illicit how unbelievable this was as anid that would fool anybody. and that compromised their ability to examine me as an expert about the technical characteristics of what a false i.d. is. again affirming the problem. it is not just information technology or maybe i.d. is information technology, it is in lots of different systems that we have. everybody has to bring up the game. i think orin is right that it is the defense bar's responsibility to inform the court. >> mr. finley. >> thank you. i asked this question from a
unique perspective. i'm the secretary of nacdl. i have a daughter who is an american university law student but my mother is the number one viewer of c-span. in fact, i note it is friday after 12:00 and i think she's at her c-span support group. and i want to ask this question from a brady and rule 16 perspective. the first panel talked about the proverbial needle in a haystack. but i want to address the rest of the haystack. because for most of our nacdl members watching this right now, these type of searches, whether it is stingray technology produce nothing. and to those attorneys that are members, this is a massive, almost infinite source of reasonable doubt for their clients. so what i would like is some perspective from the legal/technical standpoint on how to address the issues in the
front end. in other words telling the court and opposing counsel, we want everything that you have, because you've produced nothing that indicates guilt. and if that is 18 messages or 18 million sources of sources of communication that produce nothing, that's potentially 18 million arguments of reasonable doubt on behalf of our clients. >> if you give perspective, that would be great. >> so i totally agree with you, but there will be a bit of an obstacle and the obstacle will come from a couple of different places. so, for example, say you want to get and if you've been a criminal defense attorney, and as the defense lawyer, you're not getting them, right? the federal law prohibits that information to you, and they can give it to the government, but they can't give it to you, right? there are going to be obstacles to that approach and i don't think that's a bad approach, and i think what's important to note is that these approaches aren't
mutually exclusive. a lot of times i give a lot of talks at symposiums like this where they talk about the fourth amendment issue and this is great and i want them to get a warrant, too. they'll get the warrant and have a hundred pages of cell phone records putting my client in 50 different locations and i want to challenge the reliability of it so how can i, you know, why don't you ever address that and these aren't mutually exclusive. it's a multi-pronged attack. you don't get a warrant? if you don't have a warrant, you challenge the warrant and if they have the warrant and they want to particularize it, you challenge at trial and you create a constitutional protection and not precise enough to be reliable under dowbert and those are not mutually exclusive and this goes to the idea of collective knowledge and collective sharing of information among the defense bar to amount these sorts of challenges and appropriate circumstances and that's the
general point. in terms of the specific point, like i said, i agree with that. i think the practical difficulty is getting the data, particularly when it's the government that has collections on that data. that being said, i've heard of examples and the public defender there routinely gets cell site information to prove alibi or to prove it's the other guy that did it and those are sorts of records that you can get from the telecommunications provider and there have been other examples and i talked to a lawyer in arizona who did that to get a case dismissed against his client that showed his client was near the scene of the crime at the time it was committed. you can't each make those sorts of requests unless you know that information whether you want to go in with the tactic of bring it all in and it's going to prove reasonable doubt and that
will depend on ever reasonable case and the important piece is to share knowledge and 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 and maybe the best approach is to focus this oppression issue and maybe the best approach is to focus on the dalbert point and less of something else and, you know, again, there's room to work on that and we're still struggling and trying to figure that out more specifically and that's something that we have on our radar. >> anyone else? ted? [ inaudible question ] >> my comment is about the resources that was posed to the question prior when someone posed a question about the current analysis. you know, this may seem self-serving as president of the cbo, but one of the greatest
resources of the cbo itself. just this past week we had expected discussion on this very topic of the analysis and the information provided and just like in riley, they got the answer and on that list served there was much information posted including access online to a 200-page forensic handbook produced by the fbi which is in part related to court and not entirely and someone else posted affidavits of supervisors of the cart program and other discovery. so i think for those that are members of nacl, i know mr. harwin posted on that himself and so those members that are watching go to the general under that discussion and if you happen not to be a member, consider becoming a member. thank you. i'll echo that briefly and i
read the article in your magazine articulating some of the thinking of modern application of the fourth amendment and it's a helpful resource. >> what this other woman was talking about and where to get resources on technology and a simple post of 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 and i think it's a great resource. >> we'll have another question from our online viewers and i will exercise moderator privilege and ask the question myself. >> i'd like to get a sense to pull back a little and the two larger picture questions and i know we've been talking about this riley moment, but one of my questions is where do you see it going next. what's coming through the courts and what do you think might be hitting the supreme court and do you have tea leaves predicting where this might go and i don't know if someone else wants to jump in, and then i also had
another question on how some of these things are being challenged and not just in criminal cases and also in civil cases and if you don't know you can always look at our website and we had lawsuits against nsa surveillance and something we haven't talked about a lot and how that shows up in parallel cases and how do you find out if they're masking it in other ways so i was hoping if those two things could be addressed a little bit. >> so i think that the next fourth amendment technology issue that's likely to get to the supreme court is fourth amendment protection for cell site data and the records that cell phone companies are keeping about where phones are located mostly in the historical context whenever a call is made or a message is received or sent. so that's my guess is that it will probably get up to the supreme court and it might take two or three years. i don't think there are other issues that are likely to get there soon at the supreme court
level, but just to give you a flavor of the kinds of interesting arguments that at the lower courts are getting -- are getting some attention. i don't know if in the earlier panel there was any case of the united states versus guinea which gives defense counsel a lot to work with and that involved a lot of -- was there discussion of it? sorry. there were -- one a search warrant in 2003 which seizes a bunch of information about the customers and then in 2006 the government gets probable cause to believe that guineas himself was probably involved in criminal activity and the government has in its possession the files from 2003 and they get a second case of probable cause and they searched the computers a second time with the second
warrant and the second circuit says can't do that. why? well, because when the government copied the file from guineas' computers pursuant to the first warrant the government was allowed to get the data which was responsive to the warrant and there was other stuff which they had to overseize to get the underlying information which the government then had in its possession. by continuing to possess that information on the government's own computer that was a continuing seizure which became unreasonable at some point and that meant that the government was not allowed to use that in any subsequent case even when the government had a warrant and think about the steps that are involved in that and one is that there is a seizure under the fourth amendment to copy files and that's one important holding there which i think is correct. and the second is continuing to hold on to a copy of a seizure that is continuing and at some point can become unreasonable and then there may be use restrictions or some sort of
requirement that the government delete seized files and that's a holding which we would not have expected a few years ago when it came out and that was -- i think a lot of people said people had not been talking about. so i think it's -- is copying a seizure the implications of long-term storage? 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 proceeding that with what's called a 2703 f letter, and so this is a request that says please hold on to the contents of the account. we're coming with a warrant later on and so basically, if the person might want to delete their filers on if the provider might end up deleting them somehow they're preserved and it's a kind of 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
and maybe the seizure could be allowed for 24 hours or something like that and hold the package while the government is getting a warrant and the 2703f context is the government can get that for 90 days and then they can renew that for another 90 days. in a lot of investigation, prosecutors upon finding out that there is an email account involved they send that f letter and they're preserving every email account that could be involved in the case and they come back to it two months later or three months later and that violates the amendment because the holding of the file is a seizure at government request and it's a government seizure and it's being levelled on to for a long period of time. it's not a day. it could be 90 days or 180 days and at some point the guineaas rule kicks in and at some point it can't be provided. as i mentioned earlier there is a remedies problem and there is a good faith problem that the government would have reliance on the statute which may uth
rise that and there is the rights versus remedies distinction again and that's the kind of issue that defense council will be making that and whenever you have an email case was there a 2703f later aetter what you're seeing the fruits of a constitutional seizure because of the f letter? that's just one example of the kinds of arguments they think we'll be seeing. >> i'm more of a doctrine watcher than case watcher, and i think the interesting trend is away from the reasonable expectation of privacy test that's used less often by the court. it's 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, and i think that's a really 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 hoteliers to keep certain records of their guests and make those records available to law enforcement for the asking and the records 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 how the case arose, the challenge is only to the government's seizure of the records and that is only to the police coming in and taking the records, but the case is important, i think, because it shows how poor the reasonable expectation of privacy doctrine is for administering the fourth amendment in this days. a hotel not being a scent yent being doesn't have any expectation at all, but it's plainly obvious that these are the hotel's papers and it's given in the case that they're 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 what's interesting is how
the court gets to that result. it will have a lot to say about things like nsa spying because this is relitigating the secrecy act cases in 1974 and 1976 after the passage of the secrecy act in 1970, the repair of cases that says businesses could be required to maintain information by the customers and the government and that didn't violate the fourth amendment and they could be required to be turned over later because the individual didn't have a fourth amendment claim on what were business records. so it was a wonderful/awful two-step around fourth amendment protections for any information shared with the third party and as we discussed on the earlier panel, that just doesn't comfpot with the way lives are lived today and shared with parties all day every day. that's the city of patel is a very important case to watch and
it will tell us a lot about the future. yes, ma'am? >> tiffany johnson with necl. sir? >> you might mention some of the civil cases and what i think we can expect to come down the pipeline. based on what we've seen, i think there are probably two issues that will continue to be 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. it's been raised in virtually all the cases and the court -- if you look at the government's arguments withstanding, i think they're becoming more aggressive. in some cases they're arguing that not only would you have to demonstrate that your information was collected. you would have to demonstrate actual harm resulting from that and obviously, the more secret information is and the more secret the programs are and the more insurmountable that barrier becomes and when we think about the nsa surveillance cases, but for ed snowden most people
accept that we wouldn't be able to get to the stage the litigation has been and the second issue that has come up over the years is the state's secrets doctrine and even in cases when there is sufficient information to get to court, there are plaintiffs who potentially have a standing and the government's ability to really retain -- under the state's secret doctrine and not reveal some of that information for the court and undercut the ability to get to the merits of any of these arguments remains a problem. so i would anticipate both of those issues continuing to be litigated, and sort of remaining the main barriers in the civil context. >> i apologize for cutting you off. >> no problem. janey johnson. this was mentioned earlier, but the foyer litigation doesn't seem to work and we can't get the discovery bluebook and the
cart manual and stanley cooper said no, you can't get it and we have edward snowden, whistle-blower. i mean, where is the middle ground besides trying to get it through the courts with representing criminal defendants, we don't know what we don't know, so is it flipping something in doj, a former prosecutor coming out and bringing the manual with them? how do we get this information that they won't give us and that we're not able to get through the court system? >> i will say there's one middle ground and that is the pra. we talked a lot about stingrays, for example. we know a ton about stingrays more so than we did two or three years ago because basically people love talking about this stuff. i joke around that at ef, if we can write a blog post that says stingray, stingray, stingray and it would be the most viewed post
on the blog and we'll work on that and the reason that is is because you just saw a flurry of state public records request that got a ton of information on this so even though the federal foyer hasn't been super successful state pra has been super successful, and i think on stingrays you saw a ton of it and it's led to other requests for other forms of information about license plate reader data which a ton of pra requests were sent to individual municipalities and the state pra is that the process is much quicker than in the federal foyer and usually it's been our experience, at least, and not just in california, but in other states that all sorts of information gets disclosed and that would never see the light of day and the nyclu just a couple of weeks ago got a great opinion and the state pra suit that you got and we got a 25-page opinion where the judge basically said all of these
stingray records are public today that i think the county appealed, so i think that's one approach is to, you know, the public record act works and foya works and it can be tedious, but it works and pra is a good middle ground. >> i think another approach -- i mean, it's sort of a hail mary and it's relying on congress to do its oversight function, but in the face of a lot of the reports that came out over stingrays you've had, you know, 12 to 15 senators write the department of justice and write to the department of homeland security asking questions and questions about how they're used and what the policies are and what the restrictions are and really leaning on congressional offices to make public the responses they get to those requests and maybe even have congressional hearings so that there's some type of public debate as another avenue and there's always the speech and debate clause. all it really takes is one member of congress who wants to reveal something and they can go
ahead and do that. again, it's a hard avenue. a lot of members of congress may not necessarily be interested or willing to do that, but there isn't the ability to use public fresh tour potentially get information in that way which in another context may not be available. >> sorry. to add one last thing very quick. another approach is to go through the state legislature and aclu has had the same experience that in the last two years the number of phone calls from state legislative offices who want to talk about these issues and want just like stingray, but about digital search and seizure and license plate readers and all of this is blown up and 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 that basically put a warrant requirement for everything, like meta data subscriber.
everything has a warrant in the state of utah. you might be thinking it's the state of utah and only buying state law enforcement, but t, y know, when we write amicus briefs we write to the statutes and as that gets bigger and bigger and bigger of states that have legislated in this area, that is an indicator of where the public feels about these issues and so i think that's another avenue especially if you're in a state or you're someone 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 there is a lot of room to work. i mentioned utah, but it's the same experience in oregon, for example, and it's working with the aclu of oregon and the legislature to get comprehensive
legislation that has remedies and warrant requirement for location of cell phones has great restrictions on license plate reader data, and that is also another middle ground approach. >> i hate to wrap this discussion up. it's been so great. i want to thank panelists, and you in the audience for great questions. thank you very much. our next phase of this -- she will tell you about it. [ applause ] >> today marks the 70th anniversary of the formal surrender of japan on the uss missouri ending world war ii in the pacific theater. we'll show an institute for the stud of strategy and politics conference in the end of the pacific war. starting at 8:00 p.m. american strategy in the asia pacific endgame with james perry and historian and aerospace analyst
and david glance, former war college professor and at 10:00, u.s. soviet and japanese plans for the invasion and defense of japan with jim greco, u.s. army command and general staff college. next, the u.s. commission on civil rights on barriers minorities face in accessing higher education. representatives from the department of education, chancellors from various university systems and non-profit organizations look at the effectiveness of the high school to college programs and the importance of breaking down minority groups into sub groups. >> i thank the commissioner and her staffer for the effort again and our staff for putting together the briefings aring today and it takes a lot of additional effort on the part of our staff to coordinate this and as i mentioned yesterday in preparing for these hearings and even through the course of
yesterday's testimony, what we're doing here hits close to home for a lot of us on this panel ask mand many of those wh testified being first-generation college students and many of us being the first in our family to graduate from high school search as myself and i'm the product of headstart and higher education and these programs aren't just constitutional theory or political hay for me. these are the kind of programs that resulted in me sitting here before you as the first latino chairman on the u.s. commission on civil rights and yet there are many points in my educational trajectory as in the trajectory of some of the students that have been highlighted by the testimony that i could have fallen between the cracks or been pushed between the cracks despite the fact that i was an honor student in high school. a private high school and my parents worked very hard to pay tuition on and my high school guidance counselor who was not a person of color encouraged me not to apply to college so that
i shouldn't go and i should go work in the steel mills where my father, grandfather and uncle and the other folks largely from a community of color, and i insisted on going to check. she didn't help me fill out my applications and my parents didn't know what fafsa was or fas, but through leaps of faith i managed to get here, and i always wonder how many of my fellow high school students listened to that counselor and it's not just something endemic to the neighborhood i group up in, but i shared the story with others here in washington and elsewhere in groups of large latino community leaders and that is a common experience for many of us, and i know it's shared by other members of color, dr. william flores, same thing happened to him and his high school experience. so these are real issues that affect real lives and i'm really glad that we're being looking at these types of issues because they impact the future of
individuals and communities in this country and we thank you for being here and for the efforts that everyone is putting on behalf of in issue. our panelists today as yesterday, will each have seven minutes to present to us based on their prior written submissions and there is a system of warning lights here just like a traffic light. green, go. yellow, that means getting ready to stop and you'll have two minutes when you see that, and red, of course, stop. we will then as commissioners ask you questions and there will be a chance to elaborate perhaps in things you were mid-sentence on and i'll try to fairly provide them an opportunity to speak with you because we want to elicit as much information as possible. we also want to let folks know that the record of this briefing will be open for the next 30 days so any of you as panelists and any of you watching today or listening has the opportunity to present your own comments so we can review those and take those into account as
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