Skip to main content

We will keep fighting for all libraries - stand with us!

tv   Politics and Public Policy Today  CSPAN  November 29, 2016 8:00pm-12:01am EST

8:00 pm
you can do, but those two are really getting the ball going. >> who should be the key person in his administration to deal with this, especially at treasury? >> there are a number of people they are looking at. everybody on their bt l -- their list is a great economist. larry kudlow, one of the people working on that, would be a great person in any capacity at omb. steve moore who has also been working on tax reform over the years and worked directly with trump. all these people, i think, come highly recommended. and the people he's been talking about for other parts of the economy, i think quite good. >> from -- c-span's "washington journal," live every day with news and policy issues that impact you. coming up wednesday morning, democratic steering and policy committee vice chair congressman eric swalwell talks about the democratic agenda in the next congress and political messaging
8:01 pm
and strategy. then intelligence committee member congressman chris stewart on president-elect trump's emerging national security team. and foreign policy challenges. and new york magazine's select all senior editor max reed on his article "fake news" and whether the internet is a reliable tool for furthering democracy. be sure to watch c-span's "washington journal" live at 7:00 a.m. eastern on c-span. join the discussion. tonight, a look at how food is marketed to children, the wikipedia movement and automotive cybersecurity. first an update from capitol hill. >> we're joined by mike lillis, congressional reporter for "the hill." the house democratic elections coming up on wednesday morning. tell us why tim ryan is challenging democratic leader nancy pelosi. >> i think there are several
8:02 pm
reasons. going back to 2010 when the democrats lost control of the speaker's gavel and they were wiped out, there was grumbling then. why should we return the same leaders to the same spots if they weren't able to keep us in the majority. since then, every election cycle you've heard a little of that grumbling, but it's been behind closed doors. this year is very different because of the trump victory, because the democrats were expecting to pick up significant house seats. they didn't do that, and now what was once behind closed doors is now becoming very public in the form of tim ryan's challenge. i think you can break it down a couple different ways. one is generational. leader pelosi has been in charge for 14 years. she's in her mid-70s. steny hoyer, jim cliburn, her two lieutenants also there more than a decade. also in their mid-70s. there's been a constant rumbling among younger members that there's no room to move up in the world of the democratic
8:03 pm
leadership. and what you've seen is a brain drain. an exodus of people like chris van hollen, steve israel, donna edwards who are moving on to other places because of this bottleneck at the top. tim ryan is saying, we need a fresh face, new ideas, and i'm the guy who can do it. the other component of that is regional. tim ryan represents youngstown, ohio. very blue collar manufacturing base. and he points out that pelosi is a liberal from san francisco. hoyer is from maryland. the other leaders are all from the coast. all of them from the coast, almost without exception. and he says they simply don't speak to these working class, white, rust belt voters. and he, again, is the guy to do it. those are the two arguments we're hearing over and over. >> who is tim ryan? what's his track record on capitol hill in congress, in the house in particular? >> he's an appropriator. he's young. he's 43 so he does represent a
8:04 pm
new generation. but he's not a new guy. he's been around for this -- he was elected to his eighth term. very young when he arrived. 29. the youngest democrat in the house when he did arrive. but he's seasoned. he's been here -- entering his eighth term. he's been here exactly the 14 years nancy pelosi has been the leader. so a little irony there. he wants a change but he does represent this manufacturing district. it did go for trump and yet he was able to secure 68% of the vote. he's saying, we need somebody who can go into, he keeps saying the fish fries, the church servi services. we need someone that can broaden the appeal of the democratic peter. >> insurgent dems challenge tim ryan. tell me about some of the supporters in the democratic caucus. >> you've seen a trickle of supporters. right now the number stands at 11. you might see a couple more.
8:05 pm
might not. not sure how many are going to come out publicly. today you have ruben gallego, just elected to his second term. young 37-year-old hispanic from arizona and seth moulton, an iraq veteran. galego is an iraq veteran. molten is also young, also new from massachusetts. they had successfully delayed these leadership elections. pelosi wanted them to happen two weeks ago. they said no way. not after this election. we're going to take some time and have a reckoning. figure out what went wrong. they were successful. the election is tomorrow. but they hadn't endorsed anybody until today. they were holding their fire and now they're just trying to build a little momentum for ryan, you know, even if it's a losing effort. they're young. they'll be here when pelosi is gone and so they see it as a strategic move more than anything. >> walk us through the time frame and the logistics on the vote. we understand it's going to be a
8:06 pm
secret ballot wednesday morning? >> it's a secret ballot. it's always a secret ballot. that plays to the advantage of tim ryan. there's -- pelosi is an extremely powerful force in this caucus. she's very well respected, but she's also feared to an extent. and so that's why you're not seeing so many people come out publicly. the last time she was challenged in 2010, it was heath schuller. hadn't been around very long. he got 43 votes. very few of them were public. people will vote in a secret ballot because they can rimaema anonymous and not have any political reprisal from pelosi who has, in the past, denied people committee assignments or campaign cash, things like that where she could -- it's kind of a form of retribution and how she keeps people in line. how she keeps everybody so unifitd. tomorrow morning, starts at
8:07 pm
8:50, 9:00 in the morning in the basement of the capitol where the democrats meet every week for their caucus. you'll have somebody nominate pelosi. you'll have somebody nominate tim ryan. we don't know yet who those figures are going to be. and then a couple of speakers on behalf of both of the candidates. you can expect pelosi probably will grab a female lawmaker, probably somebody from the chc, probably from the black caucus. she'll have a whole swath of people. and tim ryan will probably try to do the same thing. he's got some diversity there. marsha fudge, former black caucus chairwoman who -- from ohio who will probably speak on his behalf. and then they vote in the closed ballot. and then whether or not we know the tally is another thing. the tally in the schuller vote was leaked but this one we don't know if we'll know the tally, at least not immediately. >> we'll look for your reporting
8:08 pm
on all of this. mike lillis, senior congressional reporter for "the hill." thanks for joining us. >> thank you for having me. sunday on book tv's in epith. a discussion on the december 1941 attack on pearl harbor on the eve of the 75th anniversary. on the program, steve twomey, "countdown to pearl harbor." eri hotta and craig nelson with his book "pearl harbor from infamy to greatness" followed by an interview with donald stratton, pearl harbor survivor and author of "all the gallant men." we're taking your phone calls, tweets and e-mail questions live from noon to 3:00 p.m. eastern go to book for the complete weekend schedule. now a look at the regulatory framework behind marketing food to children. this was a policy on food law
8:09 pm
hosted by ucla and harvard. >> we nour going to pivot and move from science to law. we are very fortunate to have three law professors who are at the top of their game here with us today representing ucla, berkeley and harvard law schools. led by our moderator, jennifer pomeranz, she's a clinical assistant professor at the college of global public health at new york university. jennifer? >> thank you, michael. we have a very exciting panel. we'lling getting into exciting issues, the first amendment and ftc authority and then a specific policy option by steve sugarman.
8:10 pm
we'll start today with jacob gersen from -- i'm sorry, we're going to start today with eugene volokh who will be setting the framework for the first amendment and its opportunities and restrictions on marketing -- on restricting food marketing to children. and then we will go on to jacob gersen. he is a professor at harvard law school. and then steve sugarman who is professor at berkeley's school of law. thank you. >> speaking of public health there was a crisis narrowly averted. i'm going to talk briefly about the first amendment issues that are raised here and i'm sure we'll have lots of opportunity to discuss some of these legal
8:11 pm
questions in more details in the q&a. so back in 1975 and '76, the supreme court first concluded that commercial advertising is constitutionally protected. it's interesting to see how the political veilance on this has shifted. certainly on the court and i think some measure among the public as well. back then it was very much a liberal cause. justice brennan was a major leader in this, soon to be joined by justice blackmon. justice marshall was usually on board as well. the moderates on the court, powell and stewart were usually, too. the big dissenter was justice rehnqui rehnquist, often though not always joined by justice berger and o'connor and justice white. so justices on the right and white was a moderate. today the issue has flipped. i think on the court and among the public as well.
8:12 pm
generally speaking, for example, the most recent commercial speech or kwausy commercial speech case ous basically the five conservatives, plus justice sotomayor arguing in favor of protection for commercial speech, broad protection for it. and three justices arguing in favor of narrower one, all of them justices base cically frome left, o'connor and breyer and kagan. the legal rule has also somewhat changed over the years. in the mid-'70s, it looked like commercial speech would get a lot of protection. from the early '80s to the mid to late '80s, it looked like the court was retreating from that, chiefly driven by its conservative wing. since the '90s, there's been more and more protection for commercial speech. by commercial speech, i simply mean commercial advertising.
8:13 pm
that's what that label means. it's not all speech sold in commerce, movies, books, routinely sold in commerce but commercial advertising. the formal legal test seems to remain what it was before, which is that to be protected, commercial speech has to be not false, not misleading, and there are interesting questions of what that means, and not proposing an illegal transaction. once we conclude that the speech is true and proposes a legal transaction, the government can still restrict it if it's got a substantial enough interest. and the law directly advances that interest. and is not more than -- no more extensive than necessary to serve the interest. that's the formal legalese and it tells us virtually nothing. what counts is a substantial -- more important, what advancement is direct and what is more extensive than necessary mean? those are legal terms that may
8:14 pm
sometimes help guide legal analysis but they don't actually resolve problems before the coordinating material way. the work is done by the precedence, by the particular holdings of particular cases and by the other doctrines announced at times as to what counts as direct advancement and such. and here's where i think we can get more directly to the question of food marketing and then bring in the question of food marketing to children. the most helpful way probably of articulating modern first amendment commercial advertising doctrine is that the government cannot restrict advertising because it's afraid that its recipients will be persuaded to make foolish choices. that was the decision at virginia pharmacy back in 1976. that is something the court retreated from in the '80s but went back to and most forcefully went back to the 2000s and 2010s. that is expressly stated by the
8:15 pm
court in the sorrow decision and in a decision called toms. so that's an important principle to keep in mind. in fact if you look at this formal legal rule, you could say, yeah, we have an interest in preventing people from drinking, let's say, or drinking too much. we might want to completely ban alcohol advertising or alcohol price advertising or this or that. and would that directly enough advance the interest? you can talk a lot about that. but the working principle that's doing the job is this other principle which is that you can't restrict advertising for legal product simply on the grounds that you're afraid the advertising will be too persuasive. you might require disclaimers. that's one way in which commercial advertising is different from other kinds of speech. but you can't ban it for fear that it will lead people to make decisions that are bad decisions. so that's the general principle. of course, one question that
8:16 pm
arises with regard to general principles, are there exceptions for people whose judgment you don't trust, more than you distrust the judgment of most people? and one obvious category for that is children. it turns out the supreme court has not told us which kind of advertisements towards children are admissible. but it has mentioned two things. one outside of the commercial advertising context but also outside of high politics. this is in the context of violent video games. the supreme court rejicted the notion the government generally has a free hand or even materially freer hand in restricting speech to children on the grounds that's children don't know any better. instead, the court applied the same test for restriction on violent video games being sold to children as it would have applied restrictions on violent video games being sold to
8:17 pm
adults. it was open to arguments that they're so dangerous and harmful that they ought to be destricted, as in principle it's open for that even for adults. and maybe in practice it would take different kinds of evidence. maybe less evidence as to children that the -- than the court would demand us to adults. the court found the evidence to children is insufficient. it demanded a very high level of proof that the majority of the court did not -- did not find to be adequate. interestingly, that decision was also -- was split in an interesting ideological way. the majority consisted of three liberals and two conservatives. and the dissent consisted of three conservatives and one liberal. the majority was justice scalia joined by justice kennedy. kennedy has long had a very broad view, broader than anybody on the court, of first amendment protections generally. and ginsburg, stephens at the time and souter. and the dissnts was justice
8:18 pm
breyer from the left and justice roberts, scalia from the right. we also have from the court the decision in laurela tobacco. most relevant, it struck down a ban on billboard advertising of tobacco. that basically made it impossible to advertise tobacco in virtually any area in this particular jurisdiction -- or -- let's say a wide range of areas. the rationale was, you put to a billboard as opposed to the pages of some adult magazine. some magazine aimed at adults and lots of kids can see it. say, well, yeah, maybe lots of kids can see it but lots of adults can see it. you can't restrict the speech available to adults, at least in
8:19 pm
any very broad way, simply to shield children. that's a principle the c.a.r.ou developed before. it applied it to commercial advertising. that's an important point because a lot of the kinds of advertise -- restrictions in advertising to children that i've sign, whether it has to do with food or whether it has to do with violent video games and the like, you look at the restrictions in advertising to children, and it's things like, well, advertising in any medium where at least 35% of the audience is children. if 35% of the audience is children, 65% of the audience is adults. and the court is -- but the court has strongly signaled that you can't restrict speech to adults, at least in a substantial enough way, simply in order to shield children. that's an issue that we'll have to be dealt with. how much is too much? hard to tell. what if it's an audience that 90% children and what if there's still lots and lots of
8:20 pm
advertising that does reach adults? maybe the court would say, well, that's good enough. that leaves enough channels to communicate to adults and that may be relevant for commercial advertising purposes but that's the legal issue. let me close with one other thing which is just -- two related things that are looming over this question. so you remember, it involved advertising of tobacco. tobacco is totally prohibited for children and on top of that, certainly many people, very many people, fortunately, i'm -- i've always been one of them, just complete completely -- tobacco altogether. their children, aiming to teach them the same when they grow up. my sense it very few do that to sugar, let's say or white bread. and maybe they should. maybe shthey should but that's t where our culture is at or judges tend to be at. there it seems to me.
8:21 pm
sure, you shouldn't be drinking, guzzling gallon after gallon of coca-cola. but if you drink tefr so often or have a nice dessert every so often, that's fine so long as your overall eating portfolio is good enough. so that cuts against the constitutionality of really broad restrictions because it suggests that, in fact, for many of the recipients, even adults this is not legal or maybe even harmful but if children bug their parents, can i have a twix bar? sure. one. we'll control how many you have. but this isn't the sort of thing that should be completely cut off. the last thing is my sense of conventional wisdom is, let's say not so much science but government-linked science having to do with food is not necessarily covered itself in glory in the last 50 years. whether it has to do with the
8:22 pm
food pyramid or recurring questions about salt. is it so bad, is it not so bad? questions about coffee, alcohol, a lot of things. there are certainly people who would think that the lovely looking doughnuts and muffins out there -- doughnuts -- bagels and muffins out there are bad for you and others who disagree. the bottom line is, i think, that this is something that affects judges. that judges don't like the idea of the government playing the nanny, telling us, not just what to do. it has the power to do that, but telling us what to think and what to like by restricting what people can say to us. they are open in some measure to that when it comes to children because, for children, they do need nannies, although the suspicion, many prefer the people be the nannies, but the more it looks like this isn't like, look, you shouldn't be using crack cocaine. very little doubt about that. the more it looks not like that but like, well, different people have different views. some have a little more
8:23 pm
deszerts. some have a little less dessert. and we are not really sure how much dessert is too much. the harder it will be to persuade judges to uphold -- what they would see otherwise as first amendment violations. [ applause ] >> thank you, eugene. so our panel is the law panel. and i think that means we're trying to address three questions. what are the sources of law or legal authority to address food marketing to kids? two, what kinds of legal tools or mechanisms -- mechanisms are at the state's disposal or at our collective disposal. and three, what are the legal
8:24 pm
restrictions on the exercise of that authority. yes, sources, mechanisms, restrictions. and professor volokh talked about some of the constitutional limitations on the state's ability to regulate or control speech in general and more to the point, commercial speech. and i want to largely set those issues aside, though know that the state of the doctrine is such that the government does restrict commercial speech all the time without running afoul of constitutional limits. and the question is, in what context and in what ways is that constitutionally permissible? okay. that's the background. okay. now it's impossible to discuss this issue, at least in this country, the agency, administrate of agency, the federal government agency response to food advertising to kids without being in the shadow of the so-called kid vehicle making proceedings that took place in the 1970s. i think it's fair to describe
8:25 pm
the aftermath even today for the federal trade commission as the kind of agency equivalence of post-traumatic stress disorder. this was a bad period for the agency. they were engaged in a rule making to address marketing to kid, largely on grounds of dental health and hygiene. i think they felt they had the scientific evidence clearly under foot, really easy scientific case, foundation. and the political hullabaloo that resulted was the sky had just collapsed. and it culminated in the enactment of a statute, an act essentially telling the agency to cut it out. said, congress, the commission shall not have any authority to promulgate any rule in the children's advertising proceeding pending here or in any substantially similar proceeding on the basis of a determination by the commission that such advertising constitutes an unfair act or practice. an unfair act or practice affecting congress. for those of us that study
8:26 pm
agencies and administrate of law and politics in general, this is rare. it's hard to get congress to do anything and to get congress to uniformally pass a statute telling the agency not to engage in the very thing they're doing happens, but it is not at all the norm. now one conventional understanding of this statute is that it is a jurisdiction-stripping statute. and so sometimes when we discuss this issue, it is said the ftc no longer has authority. it no longer has authority to issue a rule or regulation addressing food advertising to kids. and i think this is just incorrect. and i want to say a quick word about why and articulate precisely the things the agency has legal authority to do, even if there is not political authority or legitimacy or will to do so. so as many of you know, administrate of agencies like the ftc or fcc or fda are
8:27 pm
restricted themselves by three sources of law. first the constitution. so if congress can't do it, then the agency can't do it. the agency cannot run afoul of the constitution any more than congress or the president can. second, so-called enabling or organic staltutes. so the ftc act gives the ftc authority and specifies what they may do and how they may do. the food, drug and cosmetic act gives authority to the fda and what they may do and how they may do it. third, the administrate of procedure act, viable for the bureaucracy which contains a set of required principles and mechatisms the agencies must use to do certain things. specified judicial review and the like. so what? this is the interesting panel. the fda classifies everything into rules and orders. rules and orders.
8:28 pm
a rule means the whole or part of an agency statement of general or particular aplibability and future effect. and a rule making is just the proceeding that must be used to issue a rule an order means the whole or part of a final disposition of an agency matter in a matter other than a rule making. that is to say, if it's not a rule if it's not a rule make, then it is an order. and an order results from an adjudication. kind of crassly put, you can imagine when the agency is making a general rule, they are acting like congress. making a general policy that has legally binding on the world. and when they are issuing an order, they are acting like a court considering parties before it, speak with particularity, usually in a backward looking way, okay? rules, orders. yeah, it's very exciting. what did you learn today? well, mom --
8:29 pm
okay. so what does all that mean? well, what's clear from the statute and from that discussion is the ftc has no authority to issue a new rule classifying advertising to kids as an unfair act or practice. but there are at least four things they could do that would accomplish 90% -- 90%. i say with precision as though i know it. 90% of the goals. so just for a little background and over simplification. the unfairness doctrine and the deception doctrine. the unfairness doctrine requires the conduct here adds to kids is unfair and, therefore, legal if it's, a, likely to cause substantial injury to consumers. b, consumers cannot reasonably avoid it. and, c, it's not outweighed by offsetting benefits to consumers or competition. that's the basic, you know,
8:30 pm
unfairness idea. by contrast, an ad or a product claim label is deceptive if it's likely to mislead a reasonable consumer and the claim is material. usually material to the purchase decision. so just looking at the statute, what can the ftc do? they can issue a rule on food advertising to kids, not using the unfairness doctrine but using the deception doctrine. this is something that professor pomeranz has proposed. clearly allowed. second, the ftc could issue a rule classifying food advertising to kids as unfair. that is using the unfairness doctrine but using substantially different, presumably new after 30 years of research, evidence. and there would surely be litigation, the agency would give deference on the question of whether substantially similar in the statute allows for or does not allow for the agency to
8:31 pm
do this. okay. i think we have supreme court precedence squarely on point now. third, the agency could issue a nonbinding guidance document, essentially announce that the agency interprets the unfairness and deception policies to preclude advertising to children of a certain age, certain hours, or a certain product to be unfair and deceptive. and that would have no legal force in and of itself, but it turns out when you're a federal agency with enforcement authority and you announce that, you think the statute requires this particular conduct, an awful lot of people start changing their conduct. i'm not a fan of this particular mechanism or policy making in general, on the record. but i'm honest, so there it is. fourth, the agency can proceed through case by case adjudication, that is to say bring individual enforcement actions, as it sometimes does, against individual ads to kids.
8:32 pm
either urging, claiming, showing they're unfair or deceptive. they clearly still have that authority, and at first cut, the problem is that you have to go case by case, ad by ad, product by product, company by company and get a cease and desist order. and given the volume of ads we're talking about and the volume of products we're talking about, that just looks like a kind of absurdist, realist version of whack-a-mole. as though whack-a-mole is not absurd. the only reason that might be wrong has to do with a little weird band of administrate of law doctrine. in the 1940s in lit sgags involving the s.e.c. and jenry corporation, if they have both rule making authority and adjudication authority, which not all agencies do, you can announce general policy binding general policy using either mechanism. and so agencies like the national labor relations board and fcc regularly announce new
8:33 pm
general binding policy in the context of individual enforcements or adjudications. so if the ftc in an action against a single ad or company were to conclude that an entire class of food advertising to kids was unfair, i think that conclusion either could be or would be binding generally on other ads, other parties and on the agency itself in the future. all of which is just to say the agency that's had the lead on this issue historically has plenty of legal authority here. and would use his political or legal will to use it. if political will is lacking, as it sort of understandably might be, what does law do?
8:34 pm
well, usually we try to take advantage of the national desires or incentives of the parties rather than fight them. it's hard to go around telling companies to stop doing this thing that makes them a huge amount of money. presumably, they'd push back. so another thing to do is facilitate the process of companies suing each other. companies suing each other to stop these practices. and one way to do that would involve a statute known as the landham act. the statute is mostly about trademarks but it turns out another provision says that it's intended to protect persons engaged in commerce against unfair competition. more precisely, creates civil liability for anyone who in commercial advertising or promotion misrepresents the nature, characteristics, qualities or geographic origin of their goods or services or another company's goods or services. and without going too far into the doctrinal details, the idea
8:35 pm
is like if you make a false claim about a product in a commercial advertisement where false doesn't mean false. it can be true. but it can be misleading or confusing. confusing. and that statement actually deceived or has a tendency to deceive a substantial segment of the audience and likely to affect the purchasing decision, then there's a liability. and you can sue. now not you or eye. not a citizen sue provision but competitors can sue. so you can imagine lawsuits in which cereal companies are suing each other for advertising to kids, covered by the landham act which i think would be a relatively straightforward legal case. i think even i could win that legal case. and probably only people in this room will remember that it was a la landham act case like this as the issue of the palm verse
8:36 pm
coca-cola case. palm suing coke allege its description of its own pomegranate juice was fraudulentry deceptive. the supreme court said that's fine. that's fine. so that's something. it doesn't do everything. what else might we do. some of the ftc act allows for citizens to sue, too. you do see class action lawsuits for advertising campaigns that are confusing or deceptive or fraudulent in this particular way. and whether those succeed really depends s on, i think, the mer of the claim but the mechanisms of the class acregation same. so the class aggregation is working well, then those suits also, i think, remain viable. now what all this leaves us with is a question about remedies. when something is legally prohibited, the right question to always ask in my view is,
8:37 pm
okay, what's the remedy. that's illegal. what's the remedy? what happens if i don't comply with the law? and in a lot of these cases when we're talking about cease and desist orders, the remedy is someone says stop it. that's the remedy. your kid misbehaves and your remedy is to tell them to stop and then they stop. but in the context like this, that allows for recurrent misses of conduct you're trying to regulate. that's an inherent problem with that sort of legal or political remedy. not so damages, frankly. when people pay for the injuries they cause, that kind of system works pretty well, or at least differently. i want to note in a similar vain, narrowly or broadly, hopefully we can work that into
8:38 pm
the discussion a bit later on. now the other night as i was working on this stuff, i was imagining, as i often do, a conversation between myself and ma martian aliens. i don't know. what do you want from me. so childhood obesity is this huge, massively dangerous problem that is devastating society and it's almost become the norm both domestically and internationally. and we're pretty sure the problem is children are eating a lot of food that's bad and not eating food that's good. aliens. ugh, that sound awful. what are you going to do about it? us. we're having a really big political fight about it right now, actually. some people want to make it harder for companies to advertise to kids on tv and the internet, and others think advertisers should exercise self-restraint. aliens, huh? so you're saying there's this really dangerous product out
8:39 pm
there that kids are putting in their bodies and the big fight is about whether to make it harder to talk about the really dangerous product? so you're talking about talking about the harmful product? huh. back on our planet if it causes systematic injury to people who use it, our system lets them sue. and we at least require disclosure that it's really dangerous. and if it's really dangerous when used in the way anticipated by a producer or seller, well then sometimes we just ban it. when conduct causes injury, when a product causes injury, we try to regulate the conduct, not the talk about the conduct or discussions about the conduct. aliens. oh, well. good luck. >> i'
8:40 pm
so i'll close with just a quick anecdote. my wife said, what's the conference about? i said it's great. it's going to be an amazing conference. it's about food advertising to kids. and she said, huh. isn't that a little narrow? and at first i got really defensive. you're -- [ laughter ] and i said, are you kidding? we won't even be able to make a dent between all the scientific work and policy work and legal issues. we won't get anywhere in a day-long conference to food advertising. but i got a little less defensive, not until the plane ride here, but on the plane, because i think it is excessively narrow in some sense because we are talking only about the way that we are allowing very harmful or dangerous classified products to be advertised or marketed or talked about. and given the scope of ads that we're seeing on tv, on the
8:41 pm
internet, in the games, on the apps, everywhere, i wonder if some of our attention might also be spent next year -- at next year's conference on the underlying products or conducts themselves. we know a lot. i think kelly would say, a lot about which foods are good and bad for us and why. and maybe some of our attention should be spent on how to get more of those into the marketplace and into bodies and some of it out of the marketplace and out of bodies as well. thank you very much. [ applause ] >> i didn't pay jacob to set me up this way, but i would have, had he asked.
8:42 pm
several years ago, the government went after the tobacco industry for violating the racketeering act. this is the act aimed at the mafia, and they actually went after the cigarette companies and judge kessler actually found the tobacco industry violated the rico act. a really serious charge. and i think it was probably ten years ago, she actually found they violated it. she was stymied somewhat by her bosses on the d.c. court of appeals as to what she could order as a remedy. so she decided to try to have them undo some of the very bad things they did and some of the bad things they did was terrible marketing. and so they were going to have to publish all these ads and so on showing how bad they had been and asking forgiveness or something like that.
8:43 pm
and i don't think anything has happened. and the industry carried on its fight against this all these years since. and i have to say, i wrote at the time that it's interesting that she would focus on this as the remedy. jake just talked about what is the remedy for law violation. she had the power of dissolving the entire industry actually under the law, although probably just be taken over by japan, tobacco nonetheless. she could have put philip morris and reynold and so on, laurel art out of business. what i said she should have done was she should have ordered the industry to reduce tobacco smoking prevalence rates by one-third. that would roughly arguably offset the horrible marketing practices they had. we probably would have had a third less smokers.
8:44 pm
introduce that, it would be done with. this is what i'm going to talk to you in a moment about, what we should do with respect to drug and food advertising to kids. i don't have any slides. i didn't do the kind of serious research that our early morning speakers did. i did my own kind of research. i carefully, on a promise of a $2 reward, cross-examined my 7-year-old granddaughter. and i asked her whether or not she watches television and look at ipads and so on. and what -- does she know anything about brand junk food products. and sure enough, to my surprise, she knew about all these terrible products that we've heard about this morning. all the things marlene showed us. but as far as i can tell, she doesn't eat any of those products but what i've learned is it doesn't matter. she's eating equally bad other
8:45 pm
stuff that she gets incited to eat that's bad for her by watching all of these commercials. i now know when i go shopping with her to the famous berkeley bowl and she asks for me to buy her ice cream filled mochi in the japanese section that's actually caused by all those bad food ads that she's been watching on television. i didn't quite realize that. so it's clear that there's a lot of call now for -- we have to do something about all this avalanche of ads. we've heard about it. it's sickening to see all of it, in many ways. and some of it is caused by public health leaders, like a number of the speakers here today. and it's -- what eugene said, i think, is a warning. you have to be careful not to, in my view, to cast this as sort of, it's the nanny state. we the elites who know better are going to use government. and then characterize it being the nanny state. i would think it's much better
8:46 pm
to say that it's parents who are demanding these changes. parents want to be empoured to control their kids lives in some respects. and it's just like we say that, why do we not allow people to sell cigarettes to people under 18 or to sell alcohol to people under 21? it's because parents don't want their kids to have the stuff sold to them, and they can't realistically be expected to follow their high school kids around all the time. so we pass a law saying you can't entice our kids by selling this stuff to them. that empowers us to get what we want. we want to teach them about ma turks sensible exposure to alcohol or tobacco products. but we don't want you. we want the government to help us as parents be better parents. and i think that's what -- how we ought to put it here. parents want help. they want the government to help them, not to tell us what's -- parents what we want. and what is the question, what do we want as parents? and what i think what we want as
8:47 pm
parents is not to be able to be empowered to make much better choices for our children, but we want to be empowered to have our children actually eat healthier meals. i think there's a big difference there. that is to say, i think the focus is -- should not be on somehow combating the marketing. the focus should be on the ultimate goal which to have kids eat in a more healthy way. that's what we should look at. so i think what we ought to do in response to this avalanche, this tidal wave of junk food marketing to kids is to enact rules that parents would want that would lead us to have substantially healthier eating by our children by requiring our food retailers to sell less junk food that's eaten by kids.
8:48 pm
2 the way to think about it is to think about the climate change strategy that we have that's called cap and trade. forget about the trade part for a moment. basically, the cap in climate change says you have to have less carbon emissions. that's it. you have to have -- every year we'll have less and less or lower the cap lower and lower down. it's sort of the same as the cafe standards for automobile gasoline. every year, you have to increase the amount of miles per gallon your fleet gets. 20 miles, 25, 30 and so on. these are strategies which enlist the support of industry to do what they do best but within government restraints. you guys figure out how to make the cars work at better miles per gallon. you're better at that than us. you figure out, you public utilities, how to have less carbon in the atmosphere but you'll have to have less. you figure it out. you use your technology. we're going to insist upon the
8:49 pm
outcomes. the outcome is what we're aiming at. and i would say, and i've been saying this for a while now, we should say to the food industry, the retailers, by which i mean the walmarts and safeways, the food chains, costcos and kmarts and other food supermarket chains, and the restaurant retailers, any substantial share, restaurant retailers, you have to reduce the amount of junk food that you sell that's eaten by kids. that's what you have to do. and this regulation -- this regulation could demand these kinds of changes over time. we could tell a firm like walmart might end up facing the reality that for the next five years, every year, they have to reduce by 5% the amount of food
8:50 pm
that they sell that's junk food and consumed by children. so by the end of five years or seven years, we have a 25% reduction in the amount of junk food they sell that's eaten by kids. their expecompetitors would hav similar targets although not exactly the same targets. we would measure you much junk food eaten by kids is sold by them now. the ones that have a better job and have a healthier blend of foods that go through their cash registers would have lower reduction targets because they would be rewarded for selling healthier food nuow and the one with higher targets and over time you have a coalesce sense through all the chains toward how much they would sell of their product that would be junk food by kids. we could have after a period of
8:51 pm
time, five years, seven years, some period, a dramatic reduction in the american diet by having a dramatic change in the number of junk food sold and consumed by children. this would be a way to respond to this avalanche of advertising of this type of objectionable flood food to children. this is not that difficult to determine because the magic of bar code technology, once we decide and agree upon already, what are the bad foods? you know, what are the bad foods this can be labelled junk food. we have to get agreement on that. we will figure out what it is and we're going to have this agreement and we will say, that's it, those are the ones you have to reduce.
8:52 pm
it will be embedded in the bar code s whether it is or isn't and routinely measured and the firms all know exactly what they're selling. walmart would be great at this. they're really smart and know how to run the business and figure out easily very sensible ways how to change the mix of what they sell to have this annual reduction to meet their quota. if we reduce the cap idea from the cap and trade we might be so good at this we reduce it more than their sergeant. if safe way was lousy at this and get a net redestruction to meet our goals of let's say 25% reduction. now, in taco bell and mcdonald's and olive garden and food retail retailers, restaurants would have the same kind of targets for them as well.
8:53 pm
you might even imagine potential safe harbor strategy if walmart's goal turned out to be 5% a year for junk food sold to kids, if they reduce by, let's say, 6% a year, the amount of junk food they sold period would automatically deem them qualified for reducing the amount they sold to kids without having to monitor whether exactly it's children's eating reduction gone down or adults as well as children. that probably might be a good proxy for children's reduction and any rate, good for adults as well to have less consumption of this food. how would they do this? seems to me, that's the point, figure it out. business would be good at this. seems l would be lots of things they could do. walmart woucould eliminate some
8:54 pm
junk food products they know longer would sell and get their suppliers to reformulate the products. we heard that already this morning. make all of those doritos hea h healthier and none junk food. they could change their package size. they get it different. get the portion size different, engage in marketing changes and change this position in the store. they could change what they advertise most of all when they can start advertising healthier things. there's a million things they could do and change the price of things and raise the price on the junk food they have and lower the price on junk food. a combination of things. they would figure out what's the best way through this so consumers actually, might be relatively unaware of the fact
8:55 pm
they took home shopping baskets of food products for them and their family that actually were healthier and turns out they would be, because these are small changes. small changes incrementally over five years are substantial changes. i don't see any legal problems. this isn't in any way run into first amendment objections as i see because it's not hooking individual market conditions. i don't see other constitutional limits either, states, california, texas, florida, big states could potentially try this out on their own. hawaii is always a nice example. i don't think rhode island should do this because, you know, people that might go shopping, connecticut instead, i don't know. i do think a big state could try it out as an experiment. i think that would be fascinating to see. the federal government might try
8:56 pm
to encourage such a thing. let me say i think this kind of change could have an unbelievableably bigger impact than simply eliminating junk food marketing to kids. one of the problems is we have a whole generation of those already saturated with the marketing and already have their habits and so on. it would take a while to wear off. we could have a more short term substantial and if it worked we decided 25% wasn't enough we could potentially ask for more. two more things and i'll stop. one, is that it's possible that, let's take the example of walmart again because they're america's biggest food retailer, thick they account for 20% of the food sold in regular supermarket type stores. it's possible they may find they
8:57 pm
can take the reductions, these reductions in junk food consumed by kids disproportionately in stores of theirs located in higher end neighborhoods. that would be bad if that turned out to be the case. i actually doubt it. the biggest gains probably would lie in changing the way what they sold in stores in lower income neighborhoods. we would have to be concerned about that. this is a parallel problem with the cap and trade thing and don't want the public utilities to make nicer newer plants in area rich people live and dirty pants where poor people live, hotspots. we've learned how to do with this in cap and trade. divide walmart stores into two groups. one group have their lower income customers and higher end customer, they have to have equal goals and meet goals in both communities and proporti
8:58 pm
proportionately meet the goals. it's a concern that i think can easily be resolved. what's the political prospect? this sounds like a dramatic change. tell the tobacco customer to lose 25% of their customer and walmart to lose their junk food customers. it's daunting. all compared to what? as long as the rest of you are like, my colleague sabrina that will talk this afternoon, like this unbelievableable swarm of bees at the industry. stinging the industry, death by a thousand cuts. as long as they are after them, more soda taxes, if they're constantly under attack with a
8:59 pm
million new different regulations and so on they're being subjected to, they might find my solution more appealing to get rid of this micromanagement what we do. we want to sell our products. as long as they're legal, if you don't make them illegal, quit micromanaging this stuff. we'll cut down the bottom line. we can live with that. they may find this kind of option more attractive to them. i urge the rest of you to go after them with zeal because i need you as a shadow i have to operate under. i think it's a possibility. i hope you see i view it as a response to the advertising problem but not response -- i responded to what jacob said at the end, not a response that
9:00 pm
does into the advertising, a response to the bad advertising and gets us what we as parents actually want, healthier eating by our children. thanks very much. >> thank you so much. can you hear me? thank you so much. what a great panel. we will have times for questions and we have two microphones r m roaming around. i have two clarifying questions. you didn't talk about the advertising cases. the supreme court particularly harsh on attorneys and theories they're trained in the art of persuasion, exactly what the marketers are. if you could talk about it? >> there has been a long standing deep tradition completely missing as to
9:01 pm
advertising of food, totally advertising not only something very broad very deeply embedded into the legal profession. you think if there would be any kind of regulation the justices would be particularly open to, it's the regulation that their bars had promulgated and became very afternoon class issue that if for whatever reason you were allowed to advertise and did, you were a low class person. despite that the supreme court uniformly held but one exception the florida bar, an anomaly. and attorney advertising is constitutionally protected. now, i did mention misleading advertising can be restricted. the supreme court has underst d understandably recognized anything can in principle be labeled misleading. there are boundaries to that.
9:02 pm
if somebody, for example, guarantees results. that's not just misleading, a lie. no lawyer can do that and there are limits to the way the lawyers can portray themselves and stall results that will suggest that will end up being the nearly certain result in your case. beyond that, lawyer advertising is constitutionally protected. to apply this to other advert e advertising and somebody says, look, this cereal is fantast fantastically good for you. it will cure all that ails you. this cereal is much lower in sugar than other cereals and turns out it's false and misl d misleading, higher in sugar and lower in corn syrup and not any better, that could be restricted. i take it that's not what hooks
9:03 pm
the kids, right? no kid would want to buy it for that reason. if they say this is delicious, it's matter of opinion, that's what's dangerous, they are delicious. if they tasted bad, nobody would beat them. i think the lawyer advertising case, if anything, cut the other way. >> thank you. one more question for jacob. you mentioned the administrator procedure act, rule-making authority. my understanding is the ftc has a different authority to take more like a 10 year period. could you talk to that? >> excuse me. i don't think there's a temporal specification of that rule making. >> i mean historically it's taken a long time. >> like other agencies, they could be very involved and take sometimes three years or 10 years and sometimes three months. [ laughter ]
9:04 pm
>> i don't know why the rest of you didn't laugh. the pace overall, we have done some work on this. sometimes for some rules it's quite long and other rules, it's quite short. i think there is this idea out there for an agency to do anything, it takes a decade, and ha, what a waist of time -- waste of time. it's not true even when you factor in litigation. it is the case with higher profile higher controversy matters involving many more players and parties who care, comments you receive for example are participants that want to be engaged and subsequently challenge litigation go up, no question about that. i hope the take away from the talk is not that i champion or expect the federal agency to solve this issue. i do not. i think there is legal authority to do so and we should understand as part of the
9:05 pm
overall context in which we are opera operating. that's all. >> thank you. any questions from the audience? there's a microphone coming your way. >> a question for jacob. for those of us who prosecute false advertising by large companies, what do you see in your research or collaboration current issues that might be right for prosecution by energetic state level prosecutor, for example the mounting evidence against sugar as, you know, contributing to so many chronic diseases? do you have something like a wish list of, you know, what some state level prosecutors could go after as misleading? >> i think the short answer is no, but it kind of exists already. if you just look at the litigation in the california courts right now, it will cover, gosh, probably 90% of the things i could imagine suing companies
9:06 pm
for for false advertising or false labeling or false product claims. it's in some other states, too, but clearly happening here. those primarily are civil suits, not brought by the state ags. depending on state law they could be. i suspect in california, yes. i don't know that body of law quite as well. between new york and a hand full of other states we have seen a massive ininstruction of class action attorneys into this area. my theory is they have not yet found a theory to get them home. but i'd be shocked if one or two of these cases and subsequent ones don't come back tore the plaintiff's side but overall to this point i would say they have not been wildly successful. what might change that significantly if the companies hadn't withheld information like the tobacco and nicotine
9:07 pm
addiction issue, there were parallel ideas with respect to sugar or some other like grbt that might sway whether it's particularly relevant or not but i'm just speculating. >> jacob, i want to ask you a follow-up question. lots of advertising, all sorts. let's assume there were no advertisements that would be considered misleading under the definition of misleading than most lay people and judges would likely accept, somebody lying or suggesting something that was not sound. let's say therefore all of the promo promoters of junk food couldn't down play their sugar. they could say some hundred of grams of sugar, not sure what that means to a 14-year-old.
9:08 pm
what if they started saying our twinkie has lots of delicious sugar, what practical effect do you think that would have on consumption? do you think that would actively materially chalk change the habits of kids that would lead them to consuming less sugar another another -- eats by parents' decisions or their decisions? >> one thing i should point out, we are now doing an annual food survey where we do a lot of experiments with labeling particular claims like this and ask about changes in perception or underlying products and reported purchasing behavior. when you see grams of sugar, what effect does that have? when you see recommended grams of sugar, what effect does that have? we have recommended gmo and percenta
9:09 pm
percentage percentages, let's say it's an easy question to ask and answer. we should ask and answer that question. if it turns out a claim like that is truthful. we opt out of the fraudulent or deceptive claim or deceptive truth, a real classes category of conduct. if it's a truthful claim that impacts behavior, we ask does that impact behavior. you're not asking does that or not allow a legal claim against that company, you want to know what effect that would have on the kids. >> my suspicion is people talk about misleading claims. i'm sure there are genuinely misleading claims out there i'm happy to see suppressed. my suspicion is a lot of this is the sense if only we could get people to know the truth and say, oh, my god, there's all this sugar, i really don't want it opposed to, yeah, sugar,
9:10 pm
that's what i want for my food. my suspicion is some people are exaggerating the degree people, once they learn the truth, will change their habits and my suspicion is they're trying to have this misleading argument as to non-misleading woensz. you can shoehorn them and we just don't like it into the misleading category. >> the latter may happen. the formal data i have and i suspect others may know about other data in the room, a significant difference in sugar across two different products or products label significantly impacts the willingness or desire to purchase. that's what we've been finding. >> actually, uk mars is an advertising plan they're doing, saying it's a sometime treat. maybe somebody is analyzing it. i'd like to talk to the a.g.
9:11 pm
later. >> hi, yes. i'm katie from loyola law school. i'm a tax expert and i'm wondering about the role of tax proposal to several of the problems we discussed. if one of the problems is exposure to marketing, there's a tax proposal we could make, we could extend the period of time over which marketing expenses are dibbl are deductible, they're currently in the year they're in cured and income producing assets have to be capitalized over a 15 year period. short of eliminating the deduction we could increase the period of time over which marketing expenses are dibble therefore reducing the price of marvegting and reduce exposure and make a tax proposal to
9:12 pm
encourage reformlation of products. we could tax unhealthy foods, not just soda but all unhealthy foods and provide subsidies to healthier foods to encourage refo reformlation. we'd have to start with some type of classification system. to avoid problems with cross border transactions i think we'd need a federal system of food classification, something like front of package and stoplight labeling. i'm wondering what the panel sees as the role of tax regul e regulating opposed to command and control regulation. >> i think the policy panel is going to be talking about tax a bit. also, rosa delara had a bill about taking away the tax deductibility of the marketing of unhealthy food. >> i will say, it doesn't devoid the constitutional question, recasts the constitutional
9:13 pm
question taxing speech just because you want to have less of it or removing a tax exemption generally available to most business expenses. a tax expert can give you all the details. usually the things you do to sell something are tax dibb deductible. you remove that precisely because you want to have less speech. the courts say, okay, it's a speech restriction. may be constitutionally peach restriction for some other reason but they have been struck down on those grounds. >> take the mike if you'd like to response, please. >> my proposal is to eliminate the deduction. my proposal is not to eliminate the deduction because i think that sort of objection could be raised because business expenses generally are deductible.
9:14 pm
my proposal is to put marketing expenses on exactly the same footing as other legitimate business expenses far beyond the close of the current tax year. under current law the deductibility of marketing expense is tremendously t tax-favored relative to creating tax assets. it was immediately deductible because we were talking about the cost of placing a newspaper advertisement saying, sale this saturday. now, they're primarily to create bra branding, a capital asset, which should be amortized like other investment income producing assets. it should be am moretized and delay and deductibility increases the price. i'm not talking about elimina eliminating the deduction, about
9:15 pm
reducing the tax savings and present value by increasing over the period of time it is deductible, which is consistent with all other capital assets that have to be am moretized. >> i thought there was a suggestion in the alternative of denying it. maybe i misheard. this is a common issue h. you can sometimes characterize the same thing in two different w ways. there are plausible arguments why advertising can be seen as normal ordinary expenses because it is supposed to bring about more sales tomorrow the same way higher other salesmen might do it for other businesses. i will say, it's an interesting question to what extent legislative purposes make a difference in constitutional claims and some interesting complicated case law.
9:16 pm
when the judge looks at it and s says, you know, this wasn't part of some overall attempt to rationalize the standards of the treatment of capital investment. it looks to me like somebody was trying to suppress speech they don't like or have less speech that they don't like. so they found this lever. my sense is the judges will pay attention to that. it's true. if you can point out it was always a departure from basic sound tax logic and we just happened to discover it and will return to it, maybe you want to persuade them, sure. >> do we have a question up here if somebody could bring the microphone, please? >> i think this tax proposal made a very clever one. i take it. a good idea on its own merits, a policy matter. i take it it would apply to all marketing, not just speech
9:17 pm
advertising and all products not just junk food. you run into a lot of other political opponents of it as well, not just the food industry. it sounds right to me as an economic matter to the changed nature of marketing and i don't think it would be just speech adverti advertising. >> you're right. the broader idea is it applies to all marketing, then, sure, that would have less of a fist amendment problem. i was assuming it wouldn't be so, be a pretty difficult political challenge. speaking of difficult political challenges, steve, i'm not sure how you can get that kind of legislation passed having a cap if not trade regarding jungk food marketing to kids.
9:18 pm
also, you suggested that might be an alternative too thousand bees marlene is going to sic onto the food industry. they're not mutually exclusive. we have an example of something happening voluntarily. in the soft drink industry where they have set a goal of a 20% reduction in calories that they sell by 2025. in britain, they have a quicker schedule of reductions. it might be 25% by 2020. just last week, pepsi-co announced that it was going to change, on top of that, a voluntary reduction. they're going to aim to have three-fourths of their beverages under a hundred calories per
9:19 pm
serving, three-quarters, 40% or so. there is some voluntary movement in exactly the direction you're sugge suggesting. i haven't seen the candy industry and i'm not sure what other products you would consider junk foods. at least there's some progress sort of along those lines. >> i note when you savol tarry standards and guidelines, you don't really mean that. there's no voluntary standard adopted, a standard adopted by private industry or private parties in the shadow of government regulation. the question is what is the threat on the other side, such that private parties decide to engage on a particular scheme of self-regulation with particular standards and what the government will or won't do partially a function, of course, of what the public is talking about and interests are talking about. to think of it as voluntary and apart from, that shadow is not
9:20 pm
entirely right. >> the more people that would get behind my proposal, the more we have voluntary -- we know that the industry did agree reduce the amount of -- the processed food industry agreed to reduce the amount of calories they sell and they've more than exceeded their goals. turns out they probably didn't change anything because they were headed in that trajectory anyway. i think this is right. pepsi would agree not only three-quarters of their bever e beverages are less than 100 calories but agreed three-quarters of the sales were beverages under 100 calorie, i would be excited. that's good. this also reflects the idea and range of products are. they'll sort it out. if they can meet these goals, these are the goals they ought
9:21 pm
to be excited heading towards. >> marlene will still unleash her thousand bees and say it's not fast enough and i think that's appropriate. >> steve, i want to ask you, are you coming for my steak? >> that's what a lot of people outside this room really suspect is going on. there's talk of restrictingti restrictingtisting to children. they don't knsnoknow any better maybe we should restrict that. the suspicion we're after is maybe banning them. maybe the aliens jacob admires seem to know that. >> they're not friends, i just know them. >> maybe that suspicion is well-founded. as i understand it, your proposal, maybe walmart has to restrict what ends up being sold to children. but the person who consumes probably more junk food than anybody else in my household is
9:22 pm
my wife, who is an adult, who knows what she's doing, she's not obese. she probably would be healthier if she ate a little bit differently but she's choosing to enjoy life in a hlittle bit different way. my sense is your proposal would end up doing that. of course, it's just for junk food and we all know better. my suspicion and suspicion of others and in this case i agree, too, it starts with theodore rit toes and eventually the steak and all these other things. that's why a lot of people you talk about political problems, a lot of people have a political reaction to this and they know where this is heading. it is heading to pervasive attempts to change through restriction through making it much harder for not just children to eat what they want to eat and make healthy choices they want to eat. tell me that's not where it's
9:23 pm
going. >> it's where it's supposed to be going. no individual choices would be preve prevented. your wife could eat as much as she wanted. walmart would have to change -- >> where would she get this? >> walmart would know if it s l sells enough of that. >> maybe your wife who has the very high demand, she would continue to do it. one of the criticisms of my proposal, a lot of the people the most unhealthy would continue eat like they do and other people would eat a lot less. my view like blood pressure, introduce the national blood pressure by five points, you have a huge occupational impact, even though people with high pressure, we have a huge population gain. same thing here. try to leave individual freedom as much as you can and overall
9:24 pm
population health improvement. we let those people care about it. overall, we have the national dietary gains. that's what public health is about trying to have a population effect on the society as a whole and leave people individually to have freedom. to get down to zero would be ridiculous, that would be really bad. i can see it. guilty. >> i'm happy to here -- >> not steak. steak is not a junk food. >> i'm happy to hear you're trying to leave people individually some freedom. i'm sure people would be really satisfied by that. >> can i take the question? there is a woman all the way in the very back. does she still have a question? >> i do, thank you. going back to the discussion about unfair and deceptive advertising claims under the l n lantam act or consumer protection statutes, the court views the reasonable consumer
9:25 pm
standard whether advertising or label is likely to deceive a reasonable consumer. this whole conference seems to be focused on kids and special vulnerabilities of children and advertising targets to them. if the regional consumer standards is based on, i would imagine, an adult, do we need a new legal framework or within that standard can we deal with segments of consumers? my second question is in terms of injury, if the parents are doing most of the purchasing, then how, from a legal standpoint, how are we going to protect children and their interests when they're not actually making a purchase and they're not necessarily decei deceived. >> these are both really good and challenging questions. on the first, in this area of the law and lots of other areas of the law, when we think about a reasonable person or reasonable consumer, the first thing we have to do is figure
9:26 pm
out what class we're pulling that reasonable person from. sometimes that's a very narrow class and sometimes very broad. all consumers or people in the market, sometimes we mean a reasonable 12-year-old or 13-year-old or 8-year-old. in different contexts and statutes and different cases i can easily imagine, i think the folks have focused on a reasonable kid or reasonable teenager. i don't think that's an insurmountable problem. to the extent you're focused on one class of individual and the harm is done to another, obviously that's not going to work. with respect to the injury, a way of talking about this scenario you describe is one of, i guess third party interveners. a person who did something and the other person in the chain and the person who got injured. what we're asking about is what
9:27 pm
are the permissible causes. >> often in the law, if there's a 30 party intervene or that breaks the causation, then you're not responsibility. we do that sometimes. the question is when in the law are we going to describe a wrong and an injury. as having been cause ally li la causally linked. i think people i talk to sometimes think it's a little crazy. that advertisine ining caused t injury, oh beatty or health effect. that's kind of right on the law. on the other hand if it didn't cause that conduct, they wouldn't spend billions of dollars of advertising. you're generated the exact kind of result intended to be
9:28 pm
generated and results in the exact predictable or harm and what do we do with that chain of causation. coincident mean to say it's easy, it's not, it's hard but not easy on the other side. >> can i add the fcc has a history of marketing to children for products purchased by adu adults, wonder breads, cereal. and the adults are likely purchasing the products. i think we're out of time. thank you so much to our paneli panelists. c-span's "washington journal" live everyday with news and policy issues that impact
9:29 pm
you. coming up wednesday morning, congressman eric talks about the democrats next message and political messages and strategy and then congressman chris stewart on president-elect trump's emerging national security team and foreign policy challenges. "new york" magazine select all senior editor, max reed, on his article, "fake news" and whether the internet is a reliable tool for furthering democracy. be sure to watch c-span's journal live on wednesday morning. join the discussion. also in the morning, we'll be live from the museum for a conference on foreign policy. we'll hear from chair thornberry and nebraska senator. watch live after 8:30 eastern. representative tom price named
9:30 pm
to be president-elect trump's pick, live at 3:00 p.m. eastern. next, wikimedia celebration at the third ever wikiconference for media and volunteers at the u.s., canada and mexico. this is about an hour. >> all right. hi. with that introduction my name is kathryn merine maher. this is the organization that supports wikimedia projects and proud to work with many global organizations and partners that support the community of wi wikimedias and projects
9:31 pm
including many of you here today. i'm so excited to be leer for the third annual wikiconference in the united states and first ever wikiconference north america. amazing to see how our community continues to grow and reach beyond our own borders every single day. it is my first time at a wi wikiconference in the united states. i also can't tell you how excited i am to be here in beautiful sunny san diego. it is my vote we do more votes here already. i want to thank our incredible conference organizers are putting together this event. there are more than 300 individuals from partner glam instituti institutions. for those newer, glam is one of my favorite acronyms in our movement, 30 different cultural institutions joining us today. i am so excited to be holding this event in beautiful balboa
9:32 pm
park and central library. yesterday, we had a culture crawl across the many institutions learning about the center for rich and varied institutions and spaces by cultural institutions. one of my own personal favorites, san diego is the center for craft beer. i had a chance to attend the san diego public library for their annual fund-raiser. for those who have not been to san diego before this institution is in the 20 years in making and only opened their doors a few years back. thanks to san diegans to bring this remarkable institution to their community. i'm not going to dance for you but when i heard about the theme for this conference i might have done a little bit of dance. i was excited to learn we're going to be talking about inclusivity, charity building and knowledge. i will talk about why inclusi
9:33 pm
inclusivity is so important to fulfill our vision. before i do that i want to pause to acknowledge how far it is we have come. as you heard earlier today we're in an our 15th year. happy birthday to an incredible idea. wikipedia started years ago as a small driven website. it is so much more. it is used by millions of people everyday, nearly half a billion every month. we are on every continent. i want to give a shoutout to the women's scientists event happening earlier this year. we speak hundreds of launches and speak to dozens of backgrounds and one of the scientific institution is around the world. we're so snl to the way knowledge is created and shared
9:34 pm
today i don't think it's stretch to say we have honestly changed the world. but we're not perfect. that's part of what makes us us. our vision is a world in which every single human can freely share in the sum of all knowledge. we don't just promise inclusivity with that statement, it's had the heart of what we do, for all for all knowledge. for my beliefs, inclusivity is not just an aspiration, a necessity. to welcome all people. we need the representation of your voices and our shared voices so together we can create the sum greater than the sum of all our parts. we know we have further to go to achieve that. never mind all the world's knowledge. wikipedia alone is barely fin h finished. we have just gotten started. only 226,706 of the more than 1
9:35 pm
million 283, 736 biographies are about women. about 16%. in 2012, the oxford internet institute did an evaluation and found more than half the articles were about places, events and people that cover only about 2 1/2% of the world's land area. woman 2 1/2% of the world's geotagged areas are about africa despite the fact it is home to twenty% of the world's population. we have a ways to go. this is just inside the encyclopedia. free knowledge takes the form of images and data and original sources and language and so many other forums represented across the wikipedia projects. we need inclusivitity because that this is way we will achieve our mission. we must open ourselves up to be
9:36 pm
the thing we had promised to ourselves. >> what does this inclusivity look like? >> like the people and the world around us, we know that. how do we do it and bring all those voices in? i believe we do it with intention by embracing potential of what our movement can be. as i mentioned earlier, we started simple idea for the website open for any to contribute freely. this remarkable movement grew up around that idea. without any particular plan we grew into a constellation of activity and organizations. and the knowledge proved to have a gravity of its own pulling brilliant minds and institutions as an orb bid. i believe we are and there are so many things we can do to become what we want to be.
9:37 pm
i challenge us to embrace this idea of a movement in its inclusivity and power and also messiness and po potential. movements are things that affect social change. they work together, plan together, align together around their core values. so do we. for many people, social change is what we do. we drive change towards greater openness and greater sharing, richer commons and -- more knowledge available to more people. at their best, movements are organized to take advantage of their power and also organized to directly confront where they have weaknesses. as we look around today we see diversity of voices and partners that join us everyday. we heard earlier today we've gone from a place of wondering how we relate to libraries to feeling how libraries are powerful in this movement and
9:38 pm
mission we have. while we left a pretty big mark on the world of free knowledge we have so much more to go and change to make. to achieve what we want to achieve i believe we have to do it without bringing attention to our knowledge and how to get there and intentional thing. in many ways we're already on our way, communities are doing great things to our potential including inclusivity where all the world's voices can be represented. you heard about afr, or-crowd. >> whoo! >> afro-crowd aims to -- whew! absolutely. you deserve all of the applause. they aim to increase the number of people of african descent who actively take part in the proje projects. >> through monthly telethons
9:39 pm
they have added to the wikipedia proje projects. and wikimedia in mexico, also, yes. whoo! >> these are aimed at bringing women together to edit wikipedia articles related to women and their work. men are not invited to these. that creates a safe space and welcoming a space for women to participate. more than 200 women took place in 900 edit-a-thons in a year with a model replicated in spain, ecuador and other south american countries. when we have great inclusive ideas we see they spread. finally, i want to recognize in wikipedia canada the -- sorry --
9:40 pm
i'm sorry, my apology ph phosmangling that. knowledge, culture and launch in the project that launched earlier this year the first in dan that aims to improve content about the first nation on wikipedia and comments about knowledge, culture and language of that community and great nation. these projects offer leading examples how the community is working to fill the gaps and movements and challenges head on. we need to secelebrate these efforts and projects and groups and what they have done and countless other individuals for affecting real change and impact in feeling these gaps and knowledge. in the true wikipedia spirit we know there is more to do and to be done. how do we build for change? not easy and probably trial and
9:41 pm
error involved. the first thing is our intention, to letting people know we want them to join our communities, we have to be clear how to welcome them and engage them and makes space for them. this means we need to commit to and abide by safe spaces for our technical communities and clarifying our values so they're not just open and diverse but help us make decisions what culture we want to have as a community. open spaces and inclusion starts with language and how we communicate with one another not just in terms of language to language but individual to individual, how we share and receive. we need to practice inclusivity and identify the people we need to work with and talk to them and listen to why they're not
9:42 pm
working with us yet. this is really important. not just asking people to join us, understand the structural barri barriers, social, economic or otherwise why they are not participating in our movement. we need to understand what their objections and challenges are and reflect on them to think how we might evolve to bring in more voilds and become a more welc e welcoming and more inclusive space. take part in conversations and encourage others to do that as well. part of having these conversations and truly listening was a really important moment talking to our colleagues working to increase the participation of wikimedia editors. we understand how the way we were measuring things might have been alienating them. they felt we were being blockers and actually absorbing and
9:43 pm
making change we were able to create a better relationship and hopefully grow that community. we actually need to invest and diverse in the communities we want to have. we have to resource it. they don't happen because we want them to, we go out and make a commitment. the wickimedia foundation, we are investing in this explicitly. part of the model are the grants. they set asii siside half a mil dollars for increasing diversity in content and tools and supp t supporting healthy community culture. we kind of used to do this thing and talked about welcoming women and people of different cultures and communities. we have staff for these communities and biggest and
9:44 pm
resources to make it grow. it's not just saying it, actively going out and going. we're working how to eliminate harassment and create a heal healthier culture and eliminate toxic behavior when they see it. our annual inspired grant making campaign is to resource ideas of harassment in the wikipedia process and are identifying and supporting community members who may be our leaders. and spread the word about the resources we have that will help communities grow. we know we need more voices and want a more advanced community. and what is the next movement together. you knew you weren't going to get out of here without me bringing up strategy in some
9:45 pm
way. i want to make a request for all of us sitting here in this room, over the next six months we are hoping to have a conversation about the future of our movement. as i said at the beginning, an incredible initiative and movement and incredible for people for 15 years now. we have achieved a tremendous amount. one of the things i think i'm hearing as i go around and talk to people, we have achieved all of this and have this incredible momentum and resources and positioned in away we have never been positioned before in, the imperative to bring people into our movement to make it the thing we want to be. how do we go about doing this or gets us in the same direction together? or bring our unique capacity and
9:46 pm
skills to the places we work. i hear that, i think, what do we want to do as a movement, next strategic thing to take on or mountain we want to climb. we have much more to do. not saying taking out the encyclopedia or commons along those lines. what are the next milestones and how to resource and structure ourselves to do it and support the individuals in this room and elsewhere who will make this change possible. we will have that conversation over the next six months i hope and i invite you all to participate in it. in january 2017, we will be k k kicking off a strategic consultation. not -- we will be asking many of
9:47 pm
you exactly how that conversation should happen, what it should look like and how you would want to participate and thinking about what is it that we want at the end of that because we really do want to make sure it is about creating a space every voice matters and every person can share their perspective on the future of our movement can be. i hope with your participation inclusivity will be at the top of this conversation but i know there are many other subjects we want to take on as well. i will ask you to add a page to your watchlist. i will ask you to read more. there is a page up on metathat talks about what we want to do in terms of the strategy consultation and also has a talk page. i encourage you to leave thoughts there but i also encourage you to come tomorrow to a session at 5:00 i want to hear from you what is the best way for you to participate in a conversation about our future. what are your hopes for that conversation? what are your fears for that
9:48 pm
conversation? how can we make sure that conversation gets to place we all feel it is the place we want to go, that your voices have been heard, that the important voices who are not already in this conversation have space to join. 5:00 tomorrow. i believe the details are on the followed. thank you. that's it. i will leave it there on the strategy consultation. the fun is about to begin. we are going to have an incredible few days today and tomorrow talking about inclusivitity and where we want go as a movement and in the world. i am so excited we're in san diego and this is wikiconference north america with the participation and diversity that means. i cannot wait to get started. thank you so much and have a -- [ applause ] >> -- good day!
9:49 pm
>> my name is andrew linh from wikipedia. a lot of you may know me. i teach wikipedia. what we had inclusivity as a theme of this conference it was such a great theme to work with because part of inclusivity is to include people from all walks of life to help enhance, correct and extend the historical record. that's pretty much what wikipedia does allowing any to edit any page at any time. we really wanted to meaningfully engage on this theme especially on indigenous people's weekend in southern california. i have written a book called "the wikipedia revolution" but i think the true revolution of wikipedia is allowing more than just the win others to write the history books. why is that important?
9:50 pm
you think of education, what do you think about, k-12, curricula and silyllabus and diplomas. if you think about this, think how much of our learning happens informally outside of the classroom, especially for the rest of your life. this life long learning depends on museums, and wikipedia is part of that mix. it has disrupted the ecosystem with great side effects. this type of freely distributed life long learning on line and through wikipedia was the innovation of the enlightenment, journals, encyclopediaencyclope challenged the established authority of the church and monarchy and you had scientific exploration and people creating content outside of those two
9:51 pm
polls of authority. but the problem with this is as the authority devolved out of the church and of the monarchy, the viewpoint of the enlightenment was still very much a western perspective, right. so the term today encyclopediaic museum has been up for debate. some see it to imperial colonial outlook and method for western museums to display artifacts. it's against this context that a few wave of museums have opened up, especially in washington, d.c. where we do a lot of our editing. so the smith sewn yam national museum was one of the real hallmarks of this in d.c. the newly opened national museum of african-american history and culture, sherry is back there somewhere, sherry myself and jim hayes stood in line for the
9:52 pm
first public day and had it in line at 5:00 a.m. in the morning. . yes, they thought we were nuts when we were doing that. so we've had several american india to backtrack and analyze articles, trail of tears, thanksgiving and i'm sure we were telling about the gold rush, something you wouldn't think had implications for native americans. and what was fascinating about that, they worked with wikipedia editors and my students very early on, three years before they were going to do their permanent exhibit they contacted us to to backtrack and look at the wikipedia content for these seven episodes that they were going to have an exhibit on, it's not reacting, it was being sought by museums.
9:53 pm
we asked nags mall museum, who should we have, they pointed to two folks, michael connolly and we're happy to have them as our speakers here at the conference. when we mentioned we were working with them so one of the interesting things when were talking to stan and michael, they mentioned they were working with the museum of man just by great coincidence we had this great park friday. yesterday i had a great conversation with the ceo of the museum, museum of man michael talking about the new orientation that they're trying to take, the same type of thing decolonizing the stan and michael are part of that effort. they've been working on a new exhibit astronomy and we had
9:54 pm
some folks here work on that article yesterday. ivan and some other folks, they've worked on that article and looked at the exhibit and improved the article based on what they found out, things are coming full circle in terms of our speakers and what our editors have been doing with the content they've been contributing to that museum. innovative museums are trying to break out of the pattern are breaking out and de -- it's against this backdrop that i'm happy to introduce our speaker for today, stan rodriguez the navy veteran and inspired musical can rattler, devowed educator and student of native culture. i heard he had some great treats for us in that area. he was named the 2015 american indian heritage local hero by the pbs affiliate here in san diego. stan has touched the lives for so many of us in his love of
9:55 pm
teaching to all of us, the culture through his language, bird singing, shelter building and tool making and stanley appears in the documentary called pbs presents first people. he felt teaching rolls and native communities, he is a member of the and of the e pine nation which aims to improve lives through economic development and cultural preservation. he sits on the board to strengthen language and cultural revitalization known as the advocates for indigenous language survival. he's also a board member of the community college, a school with a special focus on history and culture, but also provides computer courses, as well. the colleges open to native and nonnative students and it's my pleasure to introduce stan rodriguez to talk to us today.
9:56 pm
[ applause ] [ speaking foreign language ] i want to welcome all of you
9:57 pm
here to the land of our people, the land of our people, now, before we start i want to say it touched my heart what you said. when we talk about inclusiveness, i heard other people speak talking about the san diego public library and wikipedia. for our people we have a saying that when an elder passes away. we come together to share this, our knowledge. this is what we do for our people, for all the people so
9:58 pm
that we gain more how many of you like to eat, okay. when i can't see me eating potato salad for the rest of my life. that's it. there's got to be more. that's what all of us bring here together. we bring that knowledge. we bring these things. and inclusive, to me, i won't even say inclusive. i will say to celebrate, to celebrate the diversity and all the knowledge that we have. now, katherine, come to me. . watch this. [ laughter ]
9:59 pm
i wampt to ask all of you, how many of you are in the witness protection program. this is -- i'm going to take this to my professor, any way, thank you. so any way, what we're going to be talking about today is a land, my people, and one of the things about our people, is, well, first of all, how many have you ever heard of our people. okay you guys are pretty educated, about half of you. the other half of you never heard about us. let me ask you this, how many of you speak any of the language.
10:00 pm
i want all of you to look at me, how many of you have ever heard of the name tewana. what does it mean? just say it, man? it means south -- that's one interpretation. . south of the border, okay. actually, it's a corruption of a word, it means, by the ocean. the spanish, they changed it around, how many have you ever heard of la jolla, what does la jolla mean, the jewel, that is a corruption of a word, which means the place of the caves. how many have you have ever heard of palomar mountain, the
10:01 pm
observe toir, what does that mean? you're not even trying any more. it means to win with arrows. how many have you have ever heard of takati. it's another corruption of a wor word. any of you ever been to the border, okay. it means weed, this not this kind of weed, but the other kind of weed that grows. so ladies and gentlemen, do wikipedia, you've heard how to speak it, are you good? all right. okay. [ applause ] and again we want to welcome you here to this land, the land of our people, the land. and i wanted to to say our tribe is on both sides of the border
10:02 pm
on this side. any of you ever been to bah ha, a few of you have been there, the rest of you, are you from out of town. watch this, man. it's a beautiful place, a lot of history. our people, we have had to endure three waves of encroachment, the spanish wave which happened in -- september
10:03 pm
28, 1542 with a lot of people read that indians of california we had missions and we loved it. we didn't. and we were peaceful, no we weren't and we just disappeared, no we're still here. and we've been conquered, no we haven't. we'll be talking about that today. then the mexican era, we'll be talking about that, and this present era and the things that we've had to endure and we're still continuing to, how would you say, we continue to survive. we continue to live. well, i've got to operate this, all right. it means a lochk time ago before contact, our people, we say we've been here since the beginning of time, however archeologists anthropologyists they say something different.
10:04 pm
i know those guys and they come to visit us, too. they say they've been here prior to that, you know, if you go into the desert.
10:05 pm
>> and -- this is the territory, you say it goes on both sides.
10:06 pm
how many have you ever worked with native american people. and where is your family and where you are. and and guess what, if you're out there, you're my relative. and that's how you find out if you're doing to possibly date
10:07 pm
somebody. it's a complicated system and and let's say here. and going through territory. and comes into my tore toir. if you come over to try to and and we're a people and we have all those different topography.
10:08 pm
coming from the mountains and together they would and we had no agri cultural and and because of the desert group along with
10:09 pm
it. on the trail and have you been on i-5, another trail and corys -- quarrys out in different things that we would gather like red oak or the paint that would be used for trade. now, we're looking at the major languages, do y'all see that? okay. bun of the things about california were the diversity of language here. california had more language diversity than any other place in the world. so you could go like ten, 20 miles to the east and you'll run into a group that speaks a completely different language
10:10 pm
two miles north, different language, so what do you think happened, are people -- our people learned to speak more than one language. how many of you here speak more than one language? doesn't that give you warm and fuzzy. i mean, you know, to be able to communicate. communication is important. that's what we do. that's what we do. and how many of you notice in the different languages you speak, you may speak something in one language that's not -- it's not easy to convey at times those -- the way of thinking in another language, that's what makes diversity so beautiful because of the different ways we look at things. it's like that diamond, it has all those facets. mike is going to go over a lot more of this. he's going to go, really deep into this.
10:11 pm
koz molg -- how many have you been over to the museum of man. natural history of museum. you see the thing on the koz molg, it talks about many of the different things our creation story takes four to six days to be told. i'm not going to tell you about our creation story, it will take way too long. it teaches us where we are today and where we're going in the
10:12 pm
future. now how much time do i have left. let me check. half hour more. okay. thank you for letting me now. i'm going to tell you something real quick, just a little thing, just one part. i want to tie this in with main street thought. we say before there was a universe there was something else. and there was a creator, the name that we call. had a younger twin. and this, the creator decided to make no one knows why the
10:13 pm
creator decided to do what he did, but the creator did it. the creator decided to make this universe as we know it. the creator pushed the younger one through it because the younger one was not as strong. the younger one was scared, closed his eyes and came into this and the older one said, are you ready for me to come and the other one said yes, but keep your eyes open. the way that it is talked about is that other place was like the difference between here on dry land and salt water, being underneath the ocean how many ever had a younger brother or
10:14 pm
sister. and put it into it, to us, our people tobacco is a sacred land. it's a connection. and do this. >> this is the different between an old person and elder, how many have you ever no old person, oh, you better do this or that. just yells at you. and expachbded and expanded. and at the universe.
10:15 pm
and some people. however, if you ask businesses today, they will tell you that the universe, the known universe as we can understand it is like an expanding bubble. as we say, so. so with that said they decided to make all they needed light. so the younger one again said, i'm doing to make this. white clay. and it's dull.
10:16 pm
and it . >> the word is called motaw, which means a fire within our body. so when the creator made the universe and made us and our belief, part of the creators in each and every one of us, so ladies and gentlemen, when you come together and you talk about strategy building, you're honoring the creator. that's part of the creator
10:17 pm
coming to you. when you talk about building something, that's part of the creator coming together. when you make something at home and you cook and you clean and when see all of these different things, this is the creator inside each and every one of us. so i just wanted to say, we celebrate our diversity, but we're all still the same, too. we're all human beings. we all came from the creator and i think -- i believe as this knowledge we come together and we talk about this and inclusiveness, bringing in all of these different cultures, we grow. i talked about hunting earlier. it's a word we use for an arrow and any of you ever went bow and arrow shooting. an arrow can hurt but it's easy to break. each and every one of us are arrows. when we come together with all of our knowledge and put it
10:18 pm
together, we try to break that bundle. it's a powerful thing. all of us coming here together. we are a powerful vehicle of movement. when we talk about social justice throughout the world, change, equality, equity, all of these things come with this knowledge, these library ries t we talk about, and inside each and every one of you is a library, too. so talked a little bit about cosmelogy, michael will talk much more on that. observe to observatory, with our people we're governed by the season. we have many different things that we've learned in our different areas. how many of you are from the northeast, any of you.
10:19 pm
pretty dry over there. >> we have a lot out there and
10:20 pm
things in the desert and i don't get too much into that. it shows that we have been, therefore, for thousands and thousands of years. there use to be a great lake over there. we move on real quick.
10:21 pm
california has all these missions that goes into the state. and i've seen pictures of mission indians taking care of the crops and they're all sitting together. and they have what is third grade and justification to the people and to build an infrastructure as a prelude
10:22 pm
class. it znt happen well. and 1775. it was burned to the gund, father was killed. on the other side of the border in bah ha, in between there's a place called -- it was named after a mission.
10:23 pm
they were looking for the priest, and spanish seniority and they lifted up the skirt and the priest was hiding unr under there. we resisted that. because our believes and our love for our ourselves.
10:24 pm
>> well mexican government said they were going to secularize the missions, in other words they were going to give the land back to the native people, right? believe me. new set of revolts all up and down, california specially and it almost fell three times. a lot of people don't know that. and then.
10:25 pm
united states government in mexico. it spilled over into what? a war? it spilled over into a war. well, guess who came to california mexican soldiers
10:26 pm
general cerny came down. the only battle mexican american war was here in san diego. guess who won. and i knew what happened before. and warriors. what they did? are you enjoying your accommodations? yeah, that was it. or you can stay here in prison, pardon and we're going to give you a gun and you can be part of
10:27 pm
an army. what would you pick. they said, i want to go. i'm going to serve my country. this became what's called the cholo army and it helped to defend california. but then they were defending san diego, but they weren't getting paid. if you're not getting paid, what do you think is going to happen. oh, yes, what they would do at night they would rape the restaurants, cantina, all the different things there. any way, all of these things don't happen. so after that in the end who won the war. so then this is where -- i'm sorry, i'm skipping all of this, because there's a lot to this. but then something happened up north, the center for it, gold
10:28 pm
was discovered in california. the people that came through, the atrocities that were committed, especially central and northern california. when we talk about the holocaust, there were 251 tribes in california prior to the gold rush, after a few years of the gold rush, there were only like 51 tribes. most of the tribes were just annihilated. they would take whole groups of people and wipe them out. there was a policy of extermination that was going on
10:29 pm
and there was a bounty for the scalps of native people down south, remember the mexican american war that we were talking about, well, one of the things that the mexicans did they armed the people, so a lot of them had weapons. it's a lot harder to annihilate a gloup roup if they're just as armed as you are. there were still things that were being done. they had a process of so in 1851 or 1852, january 7th, the treaty of isabel was made and it was
10:30 pm
going to grachbt nt us a reserv all the way to the mexican border to river side county and from east of alpine all the way to the desert, that was going to be one large reservation. this was one of the 18 treaties that was made with the surviving california tribes. remember the gold rush, the things that were happening, people were just flooding into california, a lot of people were coming in from the carolinas, georgia, this was 1852, take a look at that date in american history, what was happening then. what was that? and this was a prelude to the civil war. this was the prelude to the civil war, what happened, these people were coming in from georgia, carolina and places like that and were saying, if you ratify these treaties, we're going to side with the
10:31 pm
confederacy. well, guess what, do you think the federal government wanted to have another group of people fighting with them. they lost those treaties, they were never ratified. this is one of the reasons why california has such small reservations. in san diego, we have more reservations than any other county in the country, we also have the smallest, which is six acres. so as all of this started happening, laws were made, you could not leave the reservation unless you had a permit from somebody you worked for. you could be arrested and kept in service for six months, all of these things were happening there, too. when we talk about gold, let's move down a little bit farther south. let's go to peru, what was
10:32 pm
happening in peru, what happened to 1561 or 15 -- and the leader of peru, he was captured and ran so somed for a huge room filled with gold, once and silver twice, the largest ransome ever made and he was executed. huge, stretched -- i mean, one of the largest empires in the world. but did you know more gold was taken out of california than was extracted over there. this is how bad it got. so these were some of the things that happened. this was some of the things that
10:33 pm
contributed to the loss of life and the policies of native people here in california. and there's a lot more to it. native religion was made illegal. do you know when it was legalized. when do you think it was legalized, when we could practice it. 20th century, august 10th, 1978, the freedom of native american religion act was passed, prior to that, we didn't have the same protections in this free country. . it wasn't ratified until clinton was in power in 1990s. it was struggle against that. the boarding schools in an effort to stamp out native culture and language, started off in the 1870s, the famous
10:34 pm
thing in order to save the man where they would take children away from their homes and they would raise them in boarding schools and cut their hair. a lot of times it would say to clean out the lice. actually, in our way, our hair is part of our religion. we only cut it when somebody dies. all of these things were attempts to eradicate culture. even the termination acts and the 20th century, indian relocation, all the things, there are a lot of things that have happened, our people still survived. on the other side of the border in mexico, the mexican government didn't harass the native people in baja as much, possibly because mexicans are
10:35 pm
filled with indians, you mess with one, you'll have to mess with all of them, however, they did have policies of forcing them to speak spanish. they would bring in mexican teachers and the teachers with, very similar to what was going on here. the different organizations that mexican government works with for the native american or the native people in mexico, i would say at best it's marginal. mexican government, the tribes over there, they don't have the same protections that we had over here. we have reservations, over there the -- the indigenous lands,
10:36 pm
mexican government could come in and say, if you don't -- if you're not working all the land to our specifications, we'll just take it and give it to somebody else. these are some of the things that people have been struggling with also. how many more minutes i've got. five more minutes. okay. i'm going to shut up pretty soon. before -- i want to sing a song real quick, but before i say that, our culture has been like a pot, that's been thrown on the ground and shattered into many different things, how many have you ever worked with pottery? i talked to an elder one time and she said, that pot is all of our culture, but we put it together and we grind it up, we grind it up and makes temper.
10:37 pm
we put new clay in there, which is today and we build it. we make a new pot and we fire. and this is who we are. i think it is our responsibility to remember this, i'll call it the sacredness of every different culture and to honor that, because with that, comes a way of knowledge and way of being that cannot be replicated and i just want to say to all of you, we praise you for your work. and now before i shut my snoot, i wanted to really welcome you
10:38 pm
here. i'm going to tell you a quick story, okay this is a blue light special version and this is a camera blue light special version, and this story talks about when the sun and the moon were going to get married. >> the te male.
10:39 pm
she said her stomach is growing. the guy looked and she jumped into a pawn. she looked in there and it was filled with -- and she says, oh, gosh, look what happened, what happens when the sun and moon get married. we've got it and they started hopping up to the top of the mountain and they got there and the sun and the moon were waiting for them and they said, you're late. and two frogs said, son, moon, you cannot get married. and they said why not. they said because when you get married, and look, you'll have -- and they looked at the pawn to all these little frogs in there, singing, they said, sun you're sacred, moon you're sacred, there's only one of each one of you, if you two get together the sky will be filled with suns and moons. they said you're right, we're in love with each other and they agreed the sun will be up while the moon was asleep and the moon
10:40 pm
would be up when the sun would go to sleep and that's why it is what it is today. but every now and then you'll see the sun and the moon up at the same time. every now and then you'll see a solar eclipse [ singing ]
10:41 pm
thank you for everybody from coming here. we wish you all the success. [ applause ] with donald trump elected as new next president, melania trump becomes the second unborn american first lady. learn more about the c span's book first lady. it's a look into the personal lives and influence of every presidential spouse in american history. it's a companion to c span's
10:42 pm
well regarded biography tv series and featured interviews with the historians, biographies of 45 first ladies and the photos from each of their lives. first ladies published by public affairs is available wherever you buy books and now available in paper back. in the morning we're live from the museum for conference on foreign policy, we'll here from house armed services.
10:43 pm
>> thanks for bringing us together. i think it's very very timely. the session this morning, if you look into your program, is called securing the car for vun blt testing and coordinated disclose sure programs. some of you are probably thinking what does that mean. that and specifically what does bounty, crowd sourcing of security talk about their role and what they're doing and let's start over to the right. casey ellis, founder and ceo.
10:44 pm
casey. >> good morning. pleasure to be here. it's amazing to see such a turn out for this topic and this event. i think we're seeing this conversation evolve at an incredible space. it's really good to have you all in the room. so my backgrounds by and clearly from america, started back around in 2012, actually founded the company and really what it was, was a combination of two things, was realization of the fact that there's this incredible group of good guys think like bad guys and girls that are already at the table and wanting to help. what we're looking at two groups of people that really need to have a conversation, but historically terrible of getting along. need to adjust that and improve that. the other side of it is, i've been in the security industry for become i've become a entrepreneur and did all the
10:45 pm
things that led today. random penetration company and looking at basically the deficit and how we're discovering vun abilitier abilities and -- vuner abilities to remove the stuff that's there. they can get better at waiting at the next time around. what we're doing today is we've got automation that gets 80% solved. we try to fill that out, which is where all the bad stuff happens with consultants. 210,000 unfilled cyber security jobs in the u.s. right now. so you put all of those things together. you've got one person being paid by the hour. they asked to come -- being asked to compete to find the vun ability first against the crowd. you've got lots of hackers, lots of different motivations and lots of time. and their incentive model was based around result. when this all started, it was really feedback from a bunch of organizations that i worked with that were more traditional that saw what the technology leaders
10:46 pm
were doing, google, facebook and so on. this makes sense. this is a pretty logical way to level the playing field and get to a better position where we can win the race, so, yeah, it's a pleasure to be here today. >> thank you so much. titus is the senior manager for fcaucs, titus. >> my name is titus, i have the least interesting accent here in the stage. i just learned, but just to tell you more about my role, i'm actually in the i.t. organization over at fca and what we're doing as far as the vehicles security program is being sure across multi functional discipline. it's exciting to have my team and i have a team of security experts and they're part of my organization we have a seat at
10:47 pm
the table, that we listen to and that our input is valid. when you know your vuner ability, you can fix it. as a result the companies or customers are among most secure in the industry. we're working with car mapping service companies, we're working with general motors, uber, a
10:48 pm
large giant program here in the industry. as a company, we were hand picked to run the pentagon program, which you have heard of where secretary of defense announced a program where hackers were invited to hack the pentagon. and in just a few weeks we had 1,400 hackers who discovered 138 seve seve severe vuner abilities, they had paid 5 million over 3 years and then they reached out to the community and paid 150,000 and within a few weeks, 138. the first report came in after 13 minutes of opening the program. that's how fast these 15-year-old kids hacked it. >> it's true. >> yes, my name is marta, i'm from finland, originally. i've been in california for the past 13 years, mostly in open shores and now in the securities space. >> great. right back to you real quick, can you describe for us, how does a bug mounting program
10:49 pm
work, what are the guts of bug mounting program. >> it's like a neighborhood watch you're traveling and ask your neighbors to take a look at it when you're going, you cannot protect it against everything. you ask the world around you to help you and the program or more broadly, to make disclose sure, that's exactly that. you ask the world around you to come in and look at your software systems and see if they find something. then you put it, just look and then reporters don't do any harm. the cases say these people think bad but act good. you invite them to come in and when they have reported something useful to you, you usually award them for the results. you pay them and the bounty can be as little as $100, the biggest we have paid through our platform, is $30,000 for a single bug that somebody
10:50 pm
discovered. it was so severe that the company decided to pay so much back to the hacker and the result is then that the hacker is more committed to the company will go back and look for more and you will get more and more more and more and more vulnerabilities found and it is actually good for you. it is as good as it is going to be doctor and doij doing all those check ups that you don't really like to do but it is much better to know your weaknesses than not to know them. >> it is not always just hackers looking for this programs. we're talk about the vehicles. and people have been tuning vehicles for a long time. trying to get as much performance and coolness out of their vehicle as possible. when you made the vehicles connected suddenly you had people wanting to figure what can i do with the mobile app and the website and these other things? and they are finding. as they are getting additional functionality they are seeing vulnerabilities and saying i wonder if these automotive companies intended to work this way.
10:51 pm
and some have been reaching out to us saying hey i saw something. and after a few discussions we said we really need a coordinated program for this. to make sure we're communicating with them and those that want to do this understand the parameters. if you are going to do research this is ow you do it safely. this is how you don't break the law and this is how we reward you for that research. >> so why the chrysler fca starting the bug bounty program now? >> just an evolution of the program. as i said before we've been working with them. there are a lot of passionate people out there. people that like to hack or people who like to test and break things they do it because they love it and they want to communicate and get recognition for what they have done. so they have found ways to reach out to us and we said, you know, what? let's go forward. while it is unusual for a automotive company at this point it shouldn't be. we should have be doing this. and find things that so people
10:52 pm
report them do and address the risks and also think about it in the future so make sure those are considered in the designs of our vehicles. >> there have been a couple of articles recently since the announcement that $1500 was the headline may not be enough. been some good and bad criticism of some very very positive response. how would you respond if someone said well $1500 isn't going to be motivating enough for a hacker. >> based on submissions i would say it is a motivator. but with that said i understand the comments and the criticism here. but we had too start somewhere and that is where we are working with our friends at bug crowd that have done this for many other companies to give us an idea where should we start. and we may evolve that and have bigger payouts but at this time we wanted to start. and we'll revisit ive. it is going evolve over time. >> i can add to that. the way these programs work and one of the key mistakes early on
10:53 pm
was organizations that went out with a number that was interesting to the press more than it was necessarily a commitment that we're willing to uphold to the community. and, you know, what we've seen, you know, we've been running programs for technology companies right through to a lot of ofrrganizations in more traditional verticals taking up us on the idea. including automotive manufacturers, some public and prooiftd private. the ie deer is that okay. start at a level a this sane. and we're at a point now where we can start to collect data and figure what the a sane starting point and really the number, from fca's standpoint because i responded to some of those
10:54 pm
comments as well, is more about -- it is not about putting out this flashy number that is not going to be upheld. it is about aligning fca as an organization with starting this community and doing with people who are going to participate and doing it in a way that can be upheld and establish trust over time. and what you see in these programs is you start at a particular point and basically you reach a stage where the velocity of vulnerability submissions drops below a certain level. and at that point we generally go to the customer and say hey congratulations. you have now graduated from, you know, the level of security that you are going to be able to get feedback on at this level of reward. it is time to, you know, think about upping your game and driving the researchers deeper. >> wouldn't you also say there are other motivations besides money for the hackers? discussion we had last evening -- and any of you can respond to this. but for a young hacker in college or computer science major or someone if they can get
10:55 pm
that on their resume? are there other motivations besides finance? >> definitely. the initial and preeminent is hackers are going to hack. and we heard that before. and these are people that are just absolutely fascinated and compelled to understand the true nature of how things work and then try to get them -- you know, try to be able to manipulate them to do things maybe they shouldn't or maybe they weren't necessarily designed to do in the first place so there is that intellectual assent and curiosity is the preeminent feature in the community. beyond that we're seeing a lot of people get employed base off reputation they build. i think the main reason is it is purely on merit. it is this person hacked this company. here is evidence of that. that is actually proof of their skill in the real world and of course cash is king. so, you know, i think as things normalize over time that is going is it steady and
10:56 pm
consistent motivation that will be applied to the community but the others still exist. >> and to add on it. think about automotive security. how many automotive sus cybersecurity experts out there? there are some names with i know but this allows us to identify those people. say in the future we do a closed bounty program? these are the people we want to work with because they have a history of finding things. >> the benefit of the disclosure programs are vast. we heard a couple this morning and this opening comments but why are some companies vendors still resisting programs? what are some reasons why some companies are not adopting bug bounties? they must not care about security. that's not the --. the fact is of course i tried to provoke you who --. it has been proven to be not just the best but the only way
10:57 pm
to detect vulnerabilities in live software. it is such that when human beings create problems, only human beings can find them. and not the same human beings. and not a small group of human beings. we've seen this effect in open source software why i've spent the last is15 years. and i remember when we came with this database to people they said no i can't use it it's dangerous. and companies decided against open source because it was a cancer and a risk they thought. today if you don't run on open source software you are doomed. and there is a the similar shift happening now in security where the principles of openness of sharing and acting fast are taking over security. and soon we'll look back and say how can we ever had a time we didn't do this? just a question how was people's mind changes and i see evidence it is changing much faster this time. because here we have the
10:58 pm
secretary of defense launching a bug bounty program more the department of defense which is the world's most powerful organization. they are sitting with nuclear weapons yet they need help from 15-year-old kids. and then one of the presidential candidates starting arguing for bug bounty programs for everybody. so i think it will happen faster. but it is a shift because you must have the courage to face yourself and say tell me about my vulnerabilities and then in return i'll share my experience with all of you. and that takes some confidence and not every company has it. >> if i can add to that just quickly. completely agree with that as the preeminent issue here. the two others that i believe are in the mix, you know, we talked about good guys that think like bad guys before. i think most people think that the folks that can do these types of things to a computer are bad guys. ha it is preeminent perception of a hacker and in reality it is
10:59 pm
not true but it is more interesting to talk about crime than it is about good things. that's a part of the reason why i think it is the way it is. the other component is operational over head of dealing with a community trying to give you input. they are at the table, the process overall has efficiency issues because trying to basically drink from this hire hose. so a lot of these considerations before launching programs can be a blocker and sometimes that can be a part of what we we've tried to make easy. particularly where they don't have a massive tech team, they are just happy to deploy on this type of activity. >> great questions from the audience. so keep them coming. i'm going to go to the audience questions in a few minutes. i'm going to titus and ask you what else is being cone? what are auto makers doing to
11:00 pm
change the vehicles based on the issues you are seeing? >> i think you have already heard it discussesed here which is considering security at the design phase. including all the other disciplines the other experts and making sure everyone understands these vehicles are interconnected. they all talk to one another. we engineer as best we can but the threats are evolving and we need to make sure we can respond very quickly to that. >> great. thank you. boy some great questions we're getting from the audience. i want to jump to one real quick. casey or martin, where are researchers offended by the word "responsible" versus "coordinated"? people here may not understand the difference. >> if you don't mind i'll take that one. >> it is a term that very easily gets a moral loading attached to it. that is main reason.
11:01 pm
i think the term "responsible" has been abused in times where, you know, the reality is the idea of this conversation it's actually been happening the last fifteen years or more. so this is not a new thing that is happening here. it is just starting to pick up a lot of steam and you have folks like martin and i jumping in trying to help it go faster. but that wasn't always the case. and i think, you know, the kind of counter to responsible to the idea of a hacker being irresponsible, that's been kind of basically thrown as the researcher community in a lot of instances and not a lot are justified. i think there are a lot of cases where there is the element of you are basically getting someone coming along and calling you baby ugly with these things and not everyone is prepared to have that conversation and react to it sanely. so this whole idea of no i don't like that, you are being irresponsible. that is part of the precedent for that. the reason i still like that term to some extent is the
11:02 pm
responsibility is not just on the hacker side. i think the thing that's becoming more of a feature of basically companies becoming proactive about how they message what the nature of the conversation they want to have is, that actually sets up their responsibility to hold up their end of the bargain. so, you know, there is the kind of -- it is an age old debate within the hacker community. do we use this word or coordinated disclosure which is more accurate but people don't understand what it means outside of the community. so that is part of why. there is a rich history in the debate. >> i would go back to why isn't it happening yet and here a little blame with you guy who is have been in security for 15 years. you created the world's most complicated terminology. it is impossible to popularize this with such word monsters as responsible disclosure. so collectively we should come up with much easier words to make this an every day part of what everybody is doing. just like in my view the
11:03 pm
automotive industry always did with safety. embedded it into the design process without making much noise i think. and that is what we need to learn. we need to start from the beginning of the life cycle and give it simple understandable names and then it will work. >> i'd like to apologize for the language in the -- >> [ laughter ] >> so we have about five questions coming in all around the same topic of black hat, white hat. how do you know that good guys aren't bad guys? how do we make sure ham cker go guys think like bad guys? there is a number of renditions. but starting out with how do you vet who you're talking to? how do you know it is a good guy and he's not going to somehow do evil? >> first of all if you are a bad guy. and guy here means man or woman, young or old. if you are a a bad human being you are already hacking you don't want for any program to
11:04 pm
start. so what we are doing is just adding good guys to the mix. the second thing is the programs we run reward you only for good results. it is like the skult movement. a gad deed every day and that is the only thing you get rewarded if. if you have a -- inclination, why would you spend time there? because you get no benefit. and that is the basis. and in sociology we know that bad guys are maybe 1 one in a thousand or so. and i so we know --. and they have good intent. they want to do good. they are a little too intelligent to fit into society. and so they are sitting at home. they are wondering what to do with their lives. and when you give them real work do, they will do wonderful things that are good. so that is how you make sure
11:05 pm
that the platform is positive. then of course special programs like the hack the pentagon. we did a vet thing and we checked they were u.s. taxpayers and had a good background so we can do that for the specialized groups that we distill out of this giant community. but i would throw it back to you and say how do you know that your employees are all good actors? and i would say you don't score them the way we do. we keep track of everything they do. we know more about our hackers than you about your employees. >> i couldn't agree more. these people are earning a reputation. inviting these other programs and also are given the parameters. every one of these sites. if you go to the page you are going to see this is the parameters. this is the only place we want you to look, for example. or this is where we want you to focus. don't do this service. don't look at other people's
11:06 pm
pi.i. we don't want you to go to jail. that way they know hey this is what will keep me out of trouble but allow me still to experiment and maybe have a finding. >> i want to shift gears a little and go back to casey and get a little more broader perspective here as well. bug crowd recently issued its research on a stage of bug bound boundings. how does the industry compare to others? >> just to quickly tap that, this is a hard pill to swallow but i think the people in this room are the maturity to get it in this topic. you can control where you are vulnerable if you know where it is. you can't control the behavior of an adversary. so are we inviting good guy, bad guys to do these things? is that the right question to be asking? you can't control ultimately the
11:07 pm
behavior of someone who is intent and has the resources and skills to attack you properly. they are just going to do it. so the task is how resilient are you when they come along? and this is a good way to do that. to speak to the question around the report. what we've seen is just incredible acceleration in adoption. you think as a spectacular you have facebook and google and the crazy bay area tech companies that really launched this thing and are more aggressive when it comes to their adoption of technology risk and these things. then at the other thing you have folks like the d.o.d. and western union. there is a bunch of conservative companies that are in this mix as well. you kind of consider that as a spectacular of risk tolerance or marketed option really. the consistent trend is it's just moving a lot quicker than we thought it would. and that is driven by the results. it is driven by the efficiency. it is driven by the just severe need to get better at this
11:08 pm
quickly. given how to consumer demand for newest features and greatest convenience is accelerates. but having to find a way to have security be a part of that. the whole idea of make security easy and insecure obvious for the people building your products. it is driving demand. they are looking at the precedent being set by the tech companies and saying okay that is kind of scary. that is a novel idea. that is new concept for us. it is going to make some of us uncomfortable but ultimately we're kind of stuffed if we don't do this. so they are stepping in and starting to do it. the other thing is a really strong adoption that we're seeing. we put a fair bit of focus on the vetting piece. so within the community of researchers at the table there are those that understand sometimes you have to wear a suit and tie to work and there are those who don't. and ultimately if you are running a private program or a program in which you are trying
11:09 pm
to give an elevated level of trust to the people that are participating, you have to trust them more. so we've got a bunch of stuff that we do around that to make sure that's possible. the adoption of that as a way that people are thinking about augmenting or even replacing the things they are doing today when it comes to consultive pen testing or automotive tools, that is spreading more rapidly and the adoption of that. for every public program we do there are another five, at least, private programs where the customer is thinking about it in that way. >> so do you see the auto industry, do you see this bug bounty go across all in the industry? do you see this -- how many bicker in the next couple years? >> my, as a founder part of my job is to kind of predict the future and see if i can skate to where the puck's going to be. and so far we've done okay with that. which is good. in terms of how it looks moving forward i see five years time in the room everyone is going to be
11:10 pm
this in some fashion. and it is not going to be because it is cool or because of, you know, any like social pressure or anything like that. it is going to be because you will realize that this is the most efficient way to get things done. and given the asymmetry between what the adversary has at their disposal and what we're trying to do to compete is we're actually going to be if a poor position if we don't adopt it. i see it actually as inevitable. >> when you think of your role at chrysler fca, what do you think in terms of insider threat versus outside threat? how do you think about that? it could be bug bounty or it could be broader. just the cyber security. 50/50? >> i think 50/50, quite honestly. there are always going to be bad
11:11 pm
actors and those internally in the system have greater access than those on the outside. but i also think the insider threat isn't purposely trying to damage the company. more they are clinking on that link and responding to e-mails they shouldn't be responding to. i wish we could patch stupidity but it's not happened yet. but it is going to be a lot easier to identify those making poor choices either intentionally or unintentionally some time. >> software --. >> we see already that everything of value to human beings is being governed by software today. and we love it because we can have mobile apps and everything and self-driving cars. the problem is all software is
11:12 pm
vulnerable. and when the software eats the world this way, software needs to change. i come from the software industry so i'm guilty as the. and my point is that the auto industry learned early on to start building safe cars. early on i can remember all kinds of arrangements to keep my life safe. that is mechanical safety. but we need the same principle where security starts at the design phase. and bug --. we have to reflect the knowledge back to the designers and coders so they start developing code that isn't as vulnerable. you can never get to 100% security. never. but in total we can get closer to it. so this whole thing of the future where everything is secure will not happen until we create a software development life cycle where security san
11:13 pm
every day consideration at every step of that chain. and we need to feed back what we find in life software back to the designers so they reduce the numbers of simple injections or possibilities for overflows and all kinds of things that happen there. and there is a job for the software industry but now everybody is in the software industry so it becomes societal challenge and problem. >> there is one question from the audience here. do we need to safety safety critical systems to open source based on your earlier comment? >> yes. >> okay. >> i think we've shown that transparency trumps everything when building something you can trust. the essence of security must not be based on secrecy. it was logical flaw to think secrecy leads to security. it is the opposite. when you drive openness you get
11:14 pm
more security. the more eyeballs looking at the code the quicker you can fix it. i certainly believe so. and the world hasn't shifted 100% to occupy source software yet and the real world things don't happen as beautifully as we would like but we are on a good path. >> todd back to you. a question from the audience. do you see aspects of vulnerability testing rolled out to dealerships? repair shops as in extension to the 19 point or 30 point vehicle inspection they do now? >> i don't have any insight into that? but i can tell you the tools used for our dealers and mechanics to manipulate the car, to enhance it, patch it and work on it that is part of our information security program. that is something we realize is a possible point of attack. and so it is something we're tackling together with the product development and electoral engineering teams.
11:15 pm
we take it extremely seriously. >> thanks. over the casey. is there sufficient anonymity enforced in bug bounty programs? any comments on that? >> basically the precedents that out there for how identity works is a pseudonym -- however you say that word is the -- anyway. hackers have a tendency to use handles. that goes back a million years. not really but you get what i mean. and what it comes down to i think for programs, again, it comes down to how much trust do you require in your interaction with these people? because i think for a public program, a pseudonym will suffice. because ultimately you are getting the vulnerability. you can do something about immaterial you have ultimately a
11:16 pm
payment flow set up at which point the payment of the person who submitted the -- >> so thank you dark lord duder for all of your submissions. >> yeah. exactly. there are some crazy names out there. but in terms of the behavioral analysis of the researchers we have other tiers that involve proof-positive identity verification and background checking on top of that. and funded like from an ideological perspective and looking at it overall, i don't think that should be necessary because ultimately it should evolve towards being an open conversation where it really doesn't matter who's involved. you are just transacting data and actioning what you find. but the reality is where we are very far from a stage where this is normalized, as a concept. and we're very far from a stage where everyone is perfectly comfortable from w that idea. so what we end up doing is saying okay, if your paradigm is to require background checks or
11:17 pm
require proof-positive identification we can provide that to get you other your trust hurdle and get this thing going. nine times out of ten is the customer comes back after the first enkbajt and says okay. we get it now. that helped us get started but it limited the pool as well. so now that we understand how this works and we're starting to develop more trust in the model we're going to start to relax those things as we go along. as the complicated subject but what it comes down so optimizing for the level of trust that, you know, whichever vendor it is, what they require to get the thing going. because the important piece. >> martin, does the bug bounty program only focus on systems related to risks? or is there also a review of business operational risks that impact security? so is it only system risk? i'm sorry. is it also business operational risk? >> that is a great question. we make sure that our platform anybody can submit
11:18 pm
vulnerabilities. anybody can receive them. so if you come on board just like that, that is what you do. customers who ask they get additional service where is we go in and right long reports with recommends for them. we participate in the risk assessment and go as deep as they like to go. of course we want customers to develop their own skill and practice here because it needs to be an intrinsic function in every company. but many of our customers say martin we have just two security people here. we have 200 engineers and just two or three in the security team. we need your help. so like you said there is a shortage of security expertise but we need to make sure it really happens inside the companies and there are certain steps you take. one is you make sure it has attention from the top level. not just from the c suite but from the ceo and the governance committee on the board. we have customers who report to the boards of directors once a quarter how the bug bounty program is going and then you have a ceo who loves the stuff like mary barra who said that
11:19 pm
cybersecurity is an issue of public safety and it gives the mandate to who's ever in charge. and then you have to make sure the security teams sits close to the engineering team. because it is the engineering team that produces all the problems, right? let's remember that. and the engineers like to be focussed on the opportunities and security are focussed on problems. and it is difficult to make those two groups work together. so there is a lot of work do in the organization and we do it with our largest customers. >> i want to give 15 seconds to each panel. one take away. lot of great sessions today. but something you would want the audience attendees to think about maybe a week from now. what would that one takeaway you could highlight for us? >> in a week's time it will be interesting for everyone in this room to revisit the thought of how am i going to get started with this? like is this something that --
11:20 pm
not even is. but it's like how? what does this look like for my organization? if it's true in five years time my entire industry and most industries are going to be doing? how am i going to be a part of that? >> and the security researching community is an awesome resource and you need too find a way to harness them and engage with them and bring them out. >> listen to mary barra's keynote once again or two times or three times. take note oaf every single word she said. especially cybersecurity is a matter of public safety. >> thank our panel for a great session. appreciate that. [ applause ] >> all right. good morning. thank you very much for the opportunity to be here today to
11:21 pm
talk about the fbi and what we're doing and seeing with regard to cybercrime. i feel morally obligated to start off by saying i know i am the last person between you and lunch. i will keep that in mind. aye got 15 minute, give or take for comments and then time for q&a. i'll hold up my side. you've got to hold up yours with the q&a. four things. first the overall cyberthreat stream. and how we see this affecting the automotive industry, what the fbi is going to prevent and respond to cyberattacks and the public sector and collaboration. and what you can can expect from the fbi if you suffer breech oar victim of an attack. i'm going start with a little story. everybody loves a story, right, about a meeting i went to in
11:22 pm
march of this year at intel corporation. and at this meeting was a commercial futurist panel. and there are three individuals on this particular panel. one was marc andreessen from andreessen horowitz. the second was peter fenton from benchmark and the third jim gets from sequoia capital. all very successful and prominent venture capital firms in california. and the question asked was where do you see future growth in the next ten years from a technology perspective? and they weren't all consistent in their responses, but one or two of their responses were consistent and they were mobile. they were quantum computing and out mous autonomous driving systems. these are where venture capitalists see growth over the next ten years so that gives us
11:23 pm
a good idea what we have to consider moving forward. the big question from us from a bureau perspective and industry perspective is what are we going to do about that today? the current cyberthreat landscape, in general, more complaints, more intrusion, more victim, more losses. and the bad guys are getting more sophisticated. so we've got that going for us. right? who are the players? nation-state sponsored computer intrusions. usual cast of characters to include china, russia, north korea and iran. we're dealing with multi national cybersyndicates who are stealing information for sale to the highest bidder. the hacked-o-viss are still out there motivated by a number of things. and the bureau we still consider from a cyberterrorist perspective. so we know terrorists are highly proficient at you using the internet for recruiting,
11:24 pm
propaganda and executing attacks and also know they aspire to gain access to our systems. we know they are not there yet or don't think they are there yet but it is still very much a concern for us. so how to do they operate? increasingly complex attacks on larger targets. combining multiple techniques and inside knowledge and using social engineering and social media to target employees and also have to be, or i would remiss if i didn't mention the insider threat. it is not just limited to hackers on the outside. it is an insider threat is also a significant problem. talking about disgruntled ploepploep employees who are targeted and employees willing to sell to the highest bidder. what are they after? pretty much everything and anything from an a information perspective. they want access, anything that gives them an advantage.
11:25 pm
but today we're not so much concerned about the loss of data. a after the sony case it became also an issue of lack of data of lack of access to our own information. ransom data is a performance example. why does this matter to everybody in the room? it is more than attack on your infrastructure. these are attacks on employees and customers and they are attacks on your reputation and they are attacks on our economy and our security. real quickly i'd like to talk a little about the automotive industry at least from the fbi perspective. most of the folks in this room are all too floor with the cybersecurity risks to the automotive systems. we've heard many panels on that this morning. from our potential the vulnerabilities are the network and autonomous systems, obviously. because new cars and the systems are increasingly connected to networks an attack could prevent
11:26 pm
vehicles from communicating with each other. obviously autonomous vehicles are especially vulnerable to this type of attack. in my previous job i spent a lot of time working with the california highway parole commissioner joe pharaoh who was very interested in these particular issues and he comes at it not from a negative way. but he was constantly asking when it comes to autonomous vehicles, who is thinking about these issues? and who is asking the hard questions? and in the wake of the recent tragic accident involving a tesla using auto pilot this month, safety as we heard earlier on the panel is obviously front and center. but it is also critical that security, and particularly cybersecurity will be in the design stage rather than as an afterthought. and it is not just tesla and google pushing the envelope. i'm sure you have heard of george hots who's built a
11:27 pm
self-driving car in his basement in san francisco. what could possibly go wrong with that? supply chain, i know we're going to talk about supply chain again today. one of many possible scenarios we are thinking about involving million ware bei mall ware to updates. transplantation infrastructure. hackers could compromise gps and send drivers to the wrong place. ort bad actors could use ransom ware for exchange to get them to the right place. here is what the fbi is doing about the threat. direct comey has recognized the severity of this particular risk and made combatting it a top priority. we're constantly going how we handle hour priorities. and department of justice
11:28 pm
inspector general recently pushed out a report talking about how the fbi is looking at the cyberthreat and giving us some areas for improvement, all of which we will take very seriously and implement if possible. so for the last hundred years the fbi has worked cases primarily the same way. we've assigned those cases to investigators that are either where the bad guys are or where the victim companies are. it doesn't work in cyber. so wooep he've had to change th model and it's not been without some pain but now we make case assignments based on technical expertise and where that expertise resides. we've created cyberaction teams. taking our best trained, technically trained agents and computer scientists and deploying them to locations when necessary as a fly team. we are maintaining a constant focus on recruiting, training and retaining cybertalent.
11:29 pm
obviously we know we need to hire more, just as everybody else does. but we are constantly thinking how about this differently and how to go about it in different ways. the fbi generally would place technically-trained folks in two different job families. as agents or we put them as what we call professional support employees. which is what a computer scientist is. we're taking a look at whether that is a good idea and the sense is generally i think it is not. so bringing traditional computer scientists on board and data scientists on board and expanding the subject matter expertise we have we know we'll need moving forward. we're trying to provide additional clarity on the lanes in the road. i know it can be confusing to the private sector in terms of who will respond to a particular event and who will do what following an intrusion.
11:30 pm
we've been working very hard with the interagency to come up with additional guidance and clarity for the private sector. this effort is still ongoing. you can imagine how hard it is to herd the proverbial cats. but we're close. we expect an announcement soon and i would think in the next week or so there would be additional guidance coming from the federal government. imposing costs. we are doing our very best to impose costs. we're getting better at attribution, fieg uruguay out who the bad guys and are prosecuting them when appropriate. when we can't touch them, reach out and touch them we kmpz them publicly. i was skeptical of at first but it really has had a chilling effect. in march this year we did this with regard to seven iranian hackers. it can be embarrassing for a country if the activity is state-sponsored and it also has consequences to the individual in the event they would like to travel with their family or
11:31 pm
otherwise. and lastly the fbi is helping our local and state law enforcement counterparts be more effective in dealing with the computer-facilitated crime. providing them with training, equipment and expertise and we expect to continue to do so for the foreseeable future. so what can you expect? what can industry expect from the fbi if you suffer an intrusion? and where you should be at with regard to engagement with the organization? as vehicle technology continues to evolve the fbi and automotive industry must continue to engage on cybersecurity issues. this is a no brainer to me but if you haven't done it or haven't heard it please develop a relationship with your local fbi office if you have not already. the time to do that is on the front end of before something happens as opposed to after something bad happens. the fbi will do everything we can to share all of the relevant
11:32 pm
information that we can share with you. but frequently push out flash reports to allow us to share threat indicators and tactics and malware systems to you. and in the event you provide was information we will provide you with feedback and analysis on what you have given us. so the bottom line is we need your help to allow us to better address these threats. we know the private sector owns almost all of the infrastructure. it is the primary target. and all of the information and evidence that we would need to move forward resides on your networks and serves. but unfortunately, more often than not, law enforcement is not notified when an intrusion occurs. and the estimates are about 20% are reported. so another 80% out there. we understand there are a
11:33 pm
multitude of reasons a company would not want to report an intrusion to law enforcement but we've got figure a way to get past and and work together. we need to make it routine to companies to turn to law enforcement for help. why? well first and foremost we need to find out who's behind the attack to prevent them from doing it again. that nay not be a company's first concern which is typically to get back to business as normal but if you we don't find those responsible like i said they will continue to attack. speed matters. the faster you identify, the faster we can go after leads and get you on the right course. the fbi understands your concerns about competitive advantage in the marketplace. loss of investor confidence, public perception and reputation. disrupting operations and dealing with regulatory agencies and potential liability. but the bottom line -- and this is what you can expect from the fbi -- is you will be tweeted as a victim. we'll minimize the disruption to you and your employees.
11:34 pm
we will protect your privacy. we will not share data about your employees or operations. we will do our best to provide clear rules regarding the information you share with us. what happens to it and how it can be used. and we will share as much information as quickly as we can. let me just wrap it real quickly -- i think i'm doing okay on time here. thank you again very much for the opportunity to be here today. i applaud the efforts of the automotive industry to date to recognize the mitigate the risks associated with more connectivity. more is coming and i look forward to continuing to work with you on these issues. i'd be happy to answer anies questions th -- any questions that you may have before lunch. >> thank you very much. if people have note cards. questions. please do write them down and we have folks who can pick them up.
11:35 pm
one question. if the cyber incident does occur and the supplier calls the fbi. what practically can the fbi provide not only in cyber reach response but in areas like handling the media, etc., given the fbi's extensive experience in dealing with incidents across sectors? >> so a couple of different thoughts. first off -- i'm going the wander if i can. so on the media front we have office of public affairs. each field office has a media coordinator and in the event it is determined that that may be something that a company would want to help you effectively engage with the media. the bureau would, i would think, would be more than willing to provide you with a plan to make that happen. some of the other things that we provide is we have an office of
11:36 pm
victim assistance. so each field office has a victim's specialist. and if your employees or employees of a company are potential victims, the victim specialist can sit down and talk to your employees about ways to mitigate those risks and help them get back on track. if it is likely a nation state sponsored intrusion we would be the interface between the intelligence community and other outside agencies that would have that visibility, to the extent we could if we had cleared individual, if there were cleared individuals in the company, we would be able to share that information as quickly as possible. if we can. and lastly, you know, i talked a little bit about the preexisting
11:37 pm
relationship. right? so you want to have that in place before something happens and the reason why is so you engage in these conversations on a regular basis. you can learn more about what the fbi can bring to the table, what dhs could bring to the table, what secret service could bring to the table so in the event of something you will know exactly what you can and cannot do or should do. >> any other questions from the audience? okay. >> actually i had this one question but then i thought of something else while you were talking. so i can see that maybe some organizations may be hesitant to report this information.
11:38 pm
we know reputational risk and all those things are reputational damage i should say. but also is there any connection with your reporting an investigation to the federal regulators, for instance. so there could be concern that they would be under more scrutiny if they are reporting those things to the fbi. >> a fair question. i was talking with jim trainer before i came out. we were talk about the sony and how the bureau responded to that and how it -- we have tailored our response since that investigation. the answer is the company will be treated like a victim. and the fbi is not going provide opinion or commentary to regulatory agencies about conduct or omissions or
11:39 pm
otherwise. that is just not in our lane in terms of what we would do and how wie would respond. >> so i get to read this. so i get to make this any question i want. right? what are we having for lunch today -- no. what measure does the fbi employ to protect the anonymity of a company that reports a cyber incident. so internally we don't. we don't protect the anonymity of companies. when it comes to pushing information out that is relevant or maybe be relevant to other law enforcement agency or to other intelligence community members, we don't identify the company that has either suffered
11:40 pm
a breech or has -- you know, we have information or intelligence about. so we may refer to a company in a report that's going out to the community as company a or company b. so internally we don't. i'm unaware of any instances where we had to. but externally we don't refer to -- well i -- sony is an example, right? but we don't, absent prosecution. >> thank you. i think that -- that should wrap it up. thank you very much for your excellent keynote. thank you. [ applause ]
11:41 pm
11:42 pm
with welcome to today counsel on foreirelations meeti. i won't go over their long biographies. you have them and the main thing you might want to know is they have all served as chief of staff in the white house. and we're so lucky because i can't imagine people who know more about presidential transitions at a moment when we have a very uncertain presidential transition. i'd also like to welcome cfr members around the nation and the world participating in this meeting through the livestream and we'll hear from them during the question and answer session. and i'ms also asked to let everybody know that the next
11:43 pm
meeting is on domestic security in the age of isis on november 28th. this panel is about navigating the transition but there really are a lot of transitions that are going on at once. there is this handing over of so many institutions from one set of hands to another. there is the transition that the president elect has to make from being a candidate to being somebody who governs. in this case that is a big transition for somebody who's never been in government before. and there is also the transition that all the people around him have to make and that we as a country have to make from a moment of very intensely fought campaign to the moment of government when the choices are different. and not everybody may want to make that transition.
11:44 pm
mack, since we never had a transition quite like this, but of the three of you i think your experience is the closest. in early 1993 you and a governor from a small southern state arrived in the white house after 12 years with the other party in power. talk about that. how disorienting and transformative is it? and what do you wish someone had told you? >> well i survived number one. amy, first of all it is good to be here. always a pleasure to work with cfr and of course with chief bolten and chief daley. i think you hit it just right. the real key to any transition, of course it is the hallmark of any working democracy, peaceful transfer of power. is pivoting from a campaign -- and this was certainly lay hotly contested one to say the least -- to governing. there is a the key pivot that a transition entails and so much do and so little time to do it.
11:45 pm
you really have a number of stakeholders in terms of getting a government in place. that is what you eluded to. the cabinet, the white house staff. you have the press to immediately engage with. you have to be sure you remember those that brung you, as the old saying goes, your supporters. then you need to reach out and broaden that base. and then there are the members of congress and each of whom think they are a pretty important individual. and in many cases you are stepping on the world stage for the first time, and that is an important first step. so all these things to do with so little time to do it. less than eighty days. >> what is the one thing you wish someone would have told you? >> i kept wishing baker would give me details and finally he said you have to just be there
11:46 pm
to fully understand it. >> josh, you are -- i have to say you are kind of a transition legend, that -- the transition -- the handoff that you managed from the george w. bush administration to the obama administration is considered to be one of the -- very smooth. how much of that is something that would have been the case if not for your experience on september 11th? >> well, first thank you -- thank you for having us. and it is a privilege to be here with bill and mack. 9/11 had a lot -- lot to do with it. the tenor and the substance of the transition that we worked on, as president bush was leaving office in 2008 was very much a product of the terrorist attack of 9/11.
11:47 pm
in the sense that president bush called me in, probably a year before the inauguration, maybe even a little more and he said he wanted to be sure that whoever was elected president, that his white house executed the best, most effective, deepest, most cooperative transition in modern history. in large part because this was the first transition in modern history during which there was a really keen sense that the homeland itself was under threat. and this period of transition is a real point of vulnerability for the country. those of us who have either left the white house on january 19th, or arrived on january 20th and -- and i've done the former twice and the latter once. you know that the west wing is
11:48 pm
completely empty on the night of january 19th. there is nothing on the walls. there is nothing on the desks. there are computers. but their hard drives have been taken. there is no one in any of the offices, except some watch people in the situation room and the navy people who serve the food in the mess. otherwise it is completely blank. and so the people that come in to take over our government are doing it with, at least as far as the white house is concerned and many other places are concerned, are doing it with a completely new team. and if the outgoing white house doesn't help the new one get as prepared as possible, there is a real moment of vulnerability for our country. >> do you think that window of vulnerability has closed somewhat compared to where we
11:49 pm
were on 9/11? >> yeah. it's closed a lot. there have been two waves of legislation that have made it much, much easier for candidates -- the two major party candidates -- to begin the transition planning, which used to be considered measuring the drapes. it is now basically legally required, which is excellent. and as soon as the nominee has the nomination of his or her party party, the gsa makes office space available and there is money available to pay staff. and so now in our law, thanks to some really good work by a lot of groups, including the partnership for public service, former senator ted coffman and former governor mike levitt. there is the coffman/levitt act which puts a lot of this into
11:50 pm
law. so now there is standard operating procedure to get prepared and have the resource hopefully without all the excuse of measuring the drapes. >> do you think the resources have been used this time? if you have all these offices are they being productively occupied? >> well -- i mean -- yeah, we'll see. bill says we'll see. i interacted with both the clinton and the trump transition teams several months ago at events sponsored by the sponsorship for public service. and they have a whole book and all this kind of stuff. and i was impressed that the trump people seemed to be paying even more attention than the equilibra clinton people. i think the clinton people felt like oh you know we've done this dozens of time before we got this. the trump people were very
11:51 pm
serious, were well prepared. i was optimistic about both. the concern that was in my mind is that two days into the transition, the trump -- the president elect's team basically decapitated their transition team. they purged certain number of folks associated with governor christie and so took out some of the leadership of the transition that had been going through all off this training. so they lost several steps. my sense now is they have regained their footing. they have time. it is as mack was saying it is an enormous amount of work do. it is a big scramble. but hopefully they are well-positioned to do it proper. >> i >> you have had the experience of going through confirmation as a cabinet secretary for commerce. talk a little bit, both about what that's like to have your life examined, and also how you
11:52 pm
as chief of staff saw the confirmation process playing out for other administrations. for other people. >> well i doubt there are many people in this room or in this town who don't think the nomination process for so many spots has gotten totally ridiculous. the amount of information, the number of people, you know, the general counsel of commerce having to go through a full nomination, all due respect to the lawyer. you know, this has gotten crazy. so the whole process is unbelievable time sconsuming. gets people you have a -- offer track. and can destroy someone's reputation for something minor. and there is always one or two people who suddenly get the prize of being the target that somebody is after whether the press or -- >> always going to be somebody.
11:53 pm
>> there is somebody. and you always hope there is somebody that gets identified real early before you get queued up. so i went as i went through -- when i was announced on december 13th and the hearing, i kept waiting every morning when i get the paper to hopefully see an article on somebody else. that they were going to be the target. but -- and it ends up almost being like an oral bar test. you know you go before the members at least -- i had never done it so it was kind of strange. and i remember one of the senators finally saying to me, why -- why do you seem so nervous," as i was going up so see them. they don't really care what your answers are. it is a question they want to ask. and i kept thinking it was some exam i had to know everything and all these briefing books and all about the department. and basically i think it was
11:54 pm
john mccain who said to me. they don't want to know what you know. they want to know who you are. and suddenly the light bubbulb on and it was a very different process through the hearing. it is no fun. if it sounded like it was fun it is it was not. trust me. >> a couple of names mentioned in this transition. generally mattis for example, who would need a waiver, statutory waiver because he's not been out of the military all that long. what is your perspective on that. >> first of all i have enormous respect for him. obviously, his service to the country and talents and remarkable. i personally think that is -- that's a bit -- i think it will be more of a fight than people think for that waiver. i think the last time donald and harry truman recommend forward bradley marshall. >> the lincoln -- >> so it's not something that's done often. and very often presidents or
11:55 pm
president elects, you know, think about a military defense because often times you get highly visible, highly talented people. but they kind of step back because there seems to be somewhat of an inherent conflict in that. so i personally think that it may be too soon. but i think he'll -- i assume he'll go for it. nominate him. and probably win the vote. just the political dynamics of it. i don't know if that is good precedent. that is my personal opinion. >> interesting. one job that doesn't mean confirmation is chief of staff. i wonder if you all have the impression if the chief of staff job as you experienced it is even going to exist in this administration. we have reince priebus, but also steve bannon who was a also simultaneously announced as the chief strategist, senior advisor and in the sense it is not
11:56 pm
really clear the balance between those. is that normal? is that -- is that a good way to run a white house? >> josh, why don't you start. [ laughter ] >> i was going to say yes. but the shorter and more correct answer would be "no." and you know -- well, let me answer that. no, it doesn't sound right. it sounds like a big mistake have have them announced to have the senior strategist and senior advisor and chief of staff announced as co-equals in the white house. that on its face sounds like a real mistake in the sense that you -- you need the chief of
11:57 pm
staff to be the emissariry below the president and setting the strategic course for the white house. imagine a situation where the president says something to his senior advisors, all right. go do it. and steve bannon stays it means bomb iran. and reince priebus says it means he was, you know, mouthing the words to a beach boys song -- >> is this more of an issue between of who steve bannon is?
11:58 pm
>> it would -- you know i it would be an issue anywhere having -- the provocative past steve bannon has maxz it worst. but let me add a note of caution to everybody in assuming that is how it will work out. you could say they will be co-equal. and so you mean they are co-equal advisors to the president. i donald trump as president will listen to these people equally and give their advice equal weight. that is not a problem. there are plenty of people in a white house who as advisor, as private advisors to the president can have equal weight. i served as chief of staff as the senior advisor in that position, in what sounds like a similar position, was carl rove. president george w. bush has no closer, smarter more astute and
11:59 pm
effective advisor than carl rove. and i'd be the first to say that if i were the president i would probably listen more closely to carl rove's advice than i would to josh boulton'lten's. but there was no doubt when it came to chief of staff when it came to running the white house and interpreting and executing the president's instructions, president bush empowered me do that and not carl rove. if they mean co-equal in the sense of advice, fine. if they mean in sense of equal authority within the white house, potential disaster. >> let me just add. i firmly agree with the way josh answered that question. i would say it really does depend -- and we don't really know his management style yet, the president elect. and it is one thing to -- you could dismiss the announcement of co-equals as i'm satisfying my base by appointing priebus,
12:00 am
announce priebus. instead of just doing priebus as chief of staff where he would have gotten a lot of blowback from the alt-right crowd and the very conservative crowd. so he satisfied that political problem he could have had. and my guess is that's more likely the case. where as josh said somebody's really got to be responsible for the day-to-day. i don't know mr. bannon. >> a grace note to build on what josh and bill have said. i think josh articulated how kind of the co-equal could be viewed.


info Stream Only

Uploaded by TV Archive on