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tv   Location Privacy Cell Phones Part 2  CSPAN  July 3, 2018 5:44am-6:53am EDT

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is worth saying the 1967 passed down to 1968 wiretap act, is a regular dance that happens. it is imperfect but it is there. it is now 12:30, so it is time to wrap this panel. please join me in giving them a warm round of applause. [applause] >> all right. thank you, everybody. now we will break until 1:00, and then we will reconvene for our afternoon session on the practical implications of the carpenter decision. for those of you in the room, help yourself to food in the back of the room, and the bathrooms are out by the elevators. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> i think i can give you mine, too. >> hello, welcome back.
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us.ks again for joining we are discussing the implications of the recent blockbuster supreme court decision, carpenter v. united states. earlier this morning, we had a excellent discussion of the big picture implications of the decision, and now we would like to spend the afternoon drilling down a little bit to talk about the practical implications of the decision. how the issues at stake affect cell phone users and members of police communities, as well as prosecutors and defense attorneys and their work. just as we did in the first half of the day, we will ask you to hold questions until the speakers in the afternoon have all deliver the remarks, after which we will have time for q & a. we have a human rights attorney and a racial justice activist. she is the director of the fourth amendment center at the national association of criminal defense lawyers, the cosponsor of this event, along with the center on privacy and technology at georgetown law. and she'll introduce the
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remaining speakers, as well as moderate the questions for them. so please welcome her. [applause] >> thank you. thank you to georgetown law, my alma mater, as well as the center for privacy and technology for putting this together. we are very happy to participate in this. for the second panel, it was a fascinating conversation this morning, but then comes the question of the very practical impacts of what happens now. we could talk about it, look at the history, look at the arguments that could be made, but what happens if you are a prosecutor and you are trying to disrupt the network of crime that happens around the community. what happens right now when you think about how to do this in terms of what is being used, you know, if we are talking about breaking and entering, is that different than if we are talking about a string of sexual
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assaults in what the government should or not should be able to do, or should it be able to do. what happens when the other person who is charged of defending people's liberty? they are trying to protect them from government overreach. how does this change our practice, and what does it mean for those in the most marginalized communities moving forward? so what we're hoping the panel will be able to do is give us a look at where do we go from here in the very everyday sense, whether you are law enforcement, a prosecutor, defense attorney, technologist, a hacker, a community member, how does this impact your work and life going forward? so we are going to start with our first speaker, todd hessel, from my state of maryland. from my state of maryland. todd is currently, um, the assistant attorney general, it is important not to get the titles wrong. in the attorney general's office. he argues appeals to appellate courts, he provides legal guidance, he has also served as a supreme court fellow.
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at which time he received intense exposure in the supreme court of the united states. so please help me welcome todd hessel to speak a little bit about the prosecution perspective. [applause] todd: good afternoon. as jumana mentioned, i am todd hessel, an assistant attorney general in the criminal appeals division, maryland's attorney general's office. and i wanted to thank laura and a georgetown for inviting me. i will start with the disclaimer that any opinions i offer are my own, and not the official policy of the state of maryland or the attorney general's office. with that out of the way, from a law-enforcement perspective, i would agree with what nate and laura said earlier in that the decision one creates a lot of uncertainty over what was formally settled, that being the
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third-party doctrine, and it will lead to a lot more litigation. and that is somewhat of an issue for law enforcement going forward with respect to third-party records, because what was previously understood as being a categorical rule that if you shared information with a third party that law enforcement could acquire that information without a warrant, now that is no longer the case. but it is not entirely clear beyond the cell site location information at issue in this particular opinion, how far that goes. the opinion appears to require some sort of qualitative assessment of the data, but there is not a lot of clear
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guidance going forward as far as what other types of records to which this decision might apply. i thought it was interesting, actually, the kennedy dissent seems to tease out some factors in the more clearly than the majority opinion itself. justice kennedy notes some of the factors the majority opinion considers is imminently, comprehensiveness, expense, retrospectively and voluntariness. so, that is from the dissenting opinion, so certainly it is not controlling, so now going forward, prosecutors are going to have to make an assessment, if you are looking for some third-party records, is this the type of information to which the decision might apply? and you might say, well, just go ahead and get a warrant and protect yourselves. i would agree with that, that is
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forward,t course going but in some cases, that may not be an option. what if you do not have probable cause yet, and you are looking to acquire this information to make your case, and getting a warrant is not an option, so now you have to assess -- are you putting yourself at risk of getting evidence suppressed if you go ahead and acquire it without a warrant? and even beyond, i think there is, you know, we are going to test this decision with new and different types of evidence, certainly as, you know, as more technology allows us to collect more data, but i think even the types of records that are under the third-party doctrine, that they previously understood not to require a warrant, like banking records, the decision says that smith and miller are still good law, but consider if
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you are someone like me that, you know, you make all of your purchases with a debit or credit card, and consider how invasive those banking records might be. i think, notwithstanding that the opinion says it is narrow in and smith and miller still applies, i think creative and talented defense attorneys are going to challenge those precedents as applying the modern records going forward. even within cell site location information itself, you have to ask yourself, are you dealing with less than seven days of data, do you need a warrant then? certainly i can say from my perspective, handling state and criminal prosecutions, the typical case that i have seen does not involve more than seven days of data. in fact, it might only involve a couple of hours of data. you might just want to know, you
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know, where was this the dealer particular suspect around the time of whatever the criminal event was, and maybe a few hours before or after. that might be all you really need to make your case. so -- and it is not clear, they opinion says we are only dealing with the seven days. and i think there are arguments on both sides. the opinion refers to the comprehensiveness of the record, so are a few hours of data really a comprehensive record of someone's physical movement? i think you could argue it does not apply in that type of situation. so that is sort of the big picture affect of the decision on criminal prosecutions going forward. i want to talk a little bit about what the decision means right now for cases involving
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csli evidence that has been acquired without warrant. there are a couple different ways of preserving that evidence. maybe to your dismay or satisfaction, depending on what perspective you come from. so, the first thing you can do is, if you can establish probable cause with evidence that is independent of that lawfully, now unlawfully, acquired tsli evidence, you can reacquire the same evidence with a warrant. and that will fall within what is called the independent source doctrine, so you have acquired that same evidence by lawful means, independent of the previously unlawfully required tsli evidence.
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if you cannot acquire a warrant based on probable cause to get the same information, another option is to argue the good faith exception. there are a couple different permutations of this, it should be the exclusionary rule. a couple exceptions that would apply. in maryland, we have a state version of the communications act, so you could argue that the police obtained this information in good faith reliance on a subsequently invalid statute. at the time the police acquired the information, they believed there was a statute that allowed them to acquire this information through lawful means. they relied on that statute in good faith, and so that is one method of preserving this evidence.
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the other, the different version of that, that the police acquired the information in good faith reliance on finding a appellate precedents, so in maryland like smith and miller, and at least in maryland, the state cases, applying that decision. we've actually, our office has had some success making good-faith arguments to that effect, following both the jones and the riley decisions. so those are other options for not -- for preserving the evidence and not having it suppressed. short of that, as we talked about, if you have a case involving data with less than seven days worth of data, you can argue that potentially the carpenter decision does not apply to that data. and so those are your options going forward.
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of course, on appeal, so i anticipate that as we did with both the jones and the riley decision, we're going to get cases where this is preserved. at that point you do not have the option, those pending on appeal, you cannot go back and acquire the information lawfully at that point. so the only real options available to you there are going to be arguing a version of, one of the versions of the good-faith exception to the warrant requirement, or arguing that this is the information to which of the carpenter decision does not apply, and that would be cases involving less than seven days of data. which i imagine it is going to be most cases, most state prosecutions in maryland. so -- i do not have anything further. [applause]
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jumana: thanks, todd. just as todd brought a wealth of information, and our next speaker, jason downs, will bring that some kind of wealth of experience in a career of being a defense lawyer. jason'jason downs was part of the litigation team that investigated and settled the freddie gray civil matter a couple of years back. the police killing in baltimore. he was also counsel to sterling in d.c. he has been a public defender for almost a decade before he went to private practice. and he is also faculty at harvard law school for the trial advocacy workshop. he is also an adjunct professor at the university of maryland, school of law. please help me welcome jason downs to the podium. [applause] jason: all right, so full
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disclosure, as a defense attorney, i am naturally extremely skeptical. so, i understand intellectually that the carpenter decision should reflect the shift in how prosecutors gather data, prearrest. it should. the question is, will it? from experience, i do not think the government, in particular, prosecutors, will be able to move quickly enough to just make a drastic shift overnight, unless we see unless the facts of the particular case fit within the narrow scope of carpenter, prosecutors will continue to rely on orders, they will continue to seek those orders, because they are still available. and because they are still available, they can still cite the third-party doctrine if they are challenged, and that is what i suspect will happen, unless we are talking about those cell site location data. if we are not talking about the narrow type of data that exceeds seven days, we will probably be
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in the same boat we were before carpenter. the good thing about carpenter is it gives defense attorneys a new tool to argue. we all thought that thel thought third-party doctrine was just a bright line rule. if you gave your data to a third party, you forfeited your privacy interests. you were not going to be able to assert a fourth amendment claim there. now every defense attorney should realize that anytime the government sites the third-party doctrine, we should respond it is not a bright line rule any longer, and we can point to the language of carpenter for that proposition. that proposition being the cell site location data, the fact that you give it to a third-party by itself, that is in the court's opinion, that does not exclude it. it does not take it out of the realm of a fourth amendment analysis. that is huge. we never had that before. what will happen now? what do i expect will happen?
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i suspect we will see the same run-of-the-mill examinations where they are looking for orders for things like browsing data. that happens in all kinds of cases, whether it is a blue-collar case, white-collar case, child pornography case, it happens all across the board. importantly, browsing data is arguably more intrusive than the csdl data that was at issue in carpenter. in carpenter, we are only looking at location. when you look at browsing data, you can figure out what somebody has been searching, where they have been searching from, whether they are looking at sensitive illnesses, sensitive medications, if they are on a dating website. i mean, these things are even more intrusive than issues in carpenter when we are just talking about where somebody goes on a daily basis. when you see things like browsing data, as a defense
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attorney, we should be chomping at the bit and challenging it under carpenter. the same sort of challenge which amounts when we see emails. if you have ever handled it white-collar case, emails are bane of your existence. clients will say all kinds of ridiculous things over emails and the government gets a hold of it, and they say it is a joke, or was allegedly a joke, they will come up. emails are always coming up and the government seeks them under a 2703 b order. we should make the same and that argument that emails are arguably more intrusive than the data at issue in carpenter. the emails not only show location -- how to get the location? ip address, right? you can look at the emails, extract the ip address, and you can go even further. you can then get the recipient ip address, which can give you the recipient's approximate location. so we are getting even more
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data, even more sensitive data, when we are looking at emails. so anytime you have emails, or any time that we have browsing data, we should be chomping at the bit and making challenges under carpenter. and what is the government going to do? anybody that has tried a case, we know they are not just going to fold up shop. they will not give up. the good-faith exception is actually going to show up, and that will be something that we really have to grapple with. so when you look at the davis case, davis v. united states, davis relied on appellate precedents. but when there was precedent that was directly on point. i think the davis case was not looking at, for example, statutory, it was appellate. so we will look in your particular jurisdiction as to whether there is a pellet for whatever the government is seeking. that will be a sensitive inquiry into any case that you have. last but not least, as much as i
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appreciate the carpenter decision, i have to say as a defense attorney it makes me a little nervous, because we are often times investigating the government's case. especially in federal cases. we do not get a lot of discovery in federal cases. that is nearly closed in federal court. based on closed file discovery, we are firing off subpoenas early in the process. why? because we want to figure out who the complainant knows. do they have any bias with other witnesses? the best way to do this is to investigate social media. people put all kinds of crazy stuff on social media. if you issue a subpoena to facebook, you would be shocked at how much of a treasure trove of information you get back. now when you submit a subpoena to facebook, snapchat, instagram, they are challenging saying that you need a court order, which is obnoxious, it is not true because that
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statute only applies to when the government is conducting an investigation, not when the defense is conducting an investigation. so it should not apply, but now we have to be prepared to make argument. so i suspect a good defense attorney should take this cause up. and we can all come together and make a formed pleading because we will have to issue it time and time again. we should be prepared to argue that we are seeking this information not under 2703, but under the confrontation clause, and rule 17, the rule that authorizes a subpoena. i say all of that to say the carpenter decision is exciting but as a defense attorney, i bit am a skeptical and we have to realize it will also impact the way we investigate cases. thank you very much. [applause] jumana: ok, so we have heard a little bit about how it might impact practice, whether you are a prosecutor or defense lawyer.
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what does it mean going forward, what can be argued, what may be argued back. but to bring it out in little bit broader to talk about maybe, what is the technology, what does it do, and how many contain the privacy of life, and how impact communities? we will hear from matt mitchell, who is a data journalist, the director of digital security and privacy, and the founder of crypto harlem. ozark impromptu -- those are impromptu workshops. he teaches in upper manhattan. in his free time, which i'm surprised he has, he trains activists and informational securities. please help me welcome matt mitchell. [applause] matt: hey. when i was on my way to d.c., i drove into a wall. actually, that did not really
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happen. i drove over a speed bump. you see the difference? my talk is about the difference. that is what carpenter represents to me. before i begin, i want to to jump into things we can do to protect our location data. the first thing you can do is use data instead of using cell towers. a lot of us use imessage, some of us use signal. those things do not have the beginning of a call, end a call, there is no location data shared when we can make it using circumvention technology that uses encryption. that is a smart thing to do. and you can communicate using a vpn when you are on wifi. very smart thing you can do. and you can, this is for you, friends and family, other people in your law firm, the people you might know, clients, etc. you could also not bring your phone with you, which also might be turning your phone off for
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putting it in some kind of blocking case, or a device that will change it up. and the last thing, we are creatures of habit, but if you have your phone on and change your location that you go to, we learned about locations and 95% identifying you as a user or a human being -- yeah, switch up where you go. so let's dive in. we have been talking about location data and privacy. we have an assumption this is totally normal that everywhere we go should be, that we have these tracking devices on is constantly known as cell phones, so everywhere we go the information should be collected. there is no reason why that information is not destroyed immediately.
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there is a quality of service argument for maybe a few hours, but then it does not need to be archived in any way. that is my perfect world. to me, adding a warrant for location data does not make the data request go away. so one example could be, if someone in law enforcement says, we want information on this guy, and you would be talking directly to my cell service provider, maybe metro pcs, or sprint, and then they would just provide the location data to you. now that we have the supreme court decision, the location data has to be -- a warrant has to be approved, then the location data can be given. that might be like, there is a super shady guy named matt, please wake up, judge, we need this warrant. so i do not think that the speed bump is the same thing as blocking location data, which is my argument. so we should celebrate all of our victories, but let's not get too excited about this carpenter victory. we have a long way to go.
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because now you are private location data is in a stack of other data that tells me where you are and things about you. which includes cell phone towers, simulators that are small devices that the cell phone connects to, gps traces, facial recognition and object recognition. amazon about this program. your facebook posts or twitter posts, everything we do including websites we visit give away our location. all those things, they will have the same location data and there is a warrant behind those things.
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i was try to tell you some stories about how that breaks down and how it does not protect us, like marginalized communities. by over policed, i mean you are in a place where existence and your behavior is criminalized to begin with. by over policed, i think it will have a higher percentage chance of having contact with law enforcement. we know from the british medical journal, injury prevention study in 2016 command that african-americans and latinos, specifically males, are likely to be stopped and questioned more frequently. that usually leads to further police investigation, etc. and what we also know is that thanks to the february 2018 study, 95% of americans have cell phones. congratulations, america. when you're looking at that group, 77% are smartphones. that is a huge amount of us on
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iphones and androids. when you look at people in america who are, according to the study, self identify as white, 94% of those folks have these cell phones. the interesting thing in the folks, 98 % black of black folks have cell phones, so it is over indexing but folks have more cell phones, right? you have a group that is marginalized, criminalized, and have these devices in more saturated areas, more commonly than they have the devices. so you will see location and privacy when you see that data. the data that is -- the over index on black and latino folks, right? and so we have a group that is over policed, has high conduct -- contact with law enforcement, high-level of tracking data
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created. when you look at the privacy issue, we need to see at as a surveillance issue. that is really what it is. and surveillance, we all agree is not a good thing. it would be great if we did not need to surveillance anyone, but it is not even. and marginalized communities are under a huge level of surveillance. so one thing i want to get into is that there is a transparency report for a lot of these cell phone providers, like verizon and at&t, but when you look at the mobile network operators like metro pcs, boost, things like that, they offer lower cost connections and it is harder to find their transparency reports. i had a really hard time finding metro pcs's transparency report. i still have not found it. i want to see, at least by the end of 2017, we have to have that.
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so we can see how these things match up. -- ineek in ndc, we had a d.c. we had a lot of protests, people on different sides of the keep families together. and when you go to an event like this in georgetown, or you show up on the national mall with a cell phone/tracking device, it lets me know where you are and how long you are there which tells me a lot about you. that presents a chilling effect where people say i want to stand up for my rights, and i believe as an american there are certain things i want to protest against, but i am afraid to show up and have my location being there. right? one thing to have a photograph or a video, but to have this data stored forever is another story. that creates a chilling effect and a negative effect on our democracy. and there is also a negative effect on people of color and marginalized folks when they protest.
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there was a protest in grand central station in november 2014 and in protesting the death of 2015 eric garner and michael brown. the nypd, there was a case to get more information, freedom of information on what was going on during that protest. it seemed like the nypd might have known about the protest before it even happened, during its inception. and it was like a die -in, peaceful protest. and because of the manhattan court justice decision, the nypd had to disclose information and what we found from the initial was staggeredt it and slow is that police had access to group messaging of the organizers. black lives matter organizers. and i would say that, for public safety, do we need the content of people's group messaging and location data, and where does it end?
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in 2017, terry boyle, a member of the national lawyers guild, his information was connected to pay cell phone tracking device. and because of freedom of information act we know about this and we know that he thought -- fought to get records from chicago where this happened. there was another case in 2016, from 2014 freedom of information act, where freddy martinez sued the chicago police department because they did not give them information on whether a cell phone was used in his community, in his vicinity. and it ends up because of a decision in cook county by kathleen kennedy, the information had been given to freddie. it was haphazardly put together. it showed these cell phone simulators were used at protest. what we're seeing is even though a warrant is mrs. rds this surveillance technology, it is slightest thing,
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the smallest infraction. and mostly, we see a lot of that used with the gatherings of people. they're not specific. you will collect everybody who is there, their cell phone and location. which tells you a lot about that individual. there is a lot of discussion about bank robberies. and i want to think, like, bank robberies do not happen that frequently. i will go out on a limb there. the people protesting seems to happen more and more every day in this country. and we need to think about how to protect the civil rights and our political rights. and if i know where you are going every minute of the day, where you are moving to, i can have an idea of what your politics may be and who you're organizing with, and that is not what this country is about. two weeks ago i was in geneva at the u.n. speaking to the human
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rights commission, the 30th gathering. and the chinese government, that member nation had a statement about, we are protecting all my -- online rights of human rights defenders through our real name policy. through that policy, the chinese government knows who you are, what your real name is, when you're on social media, when you are on a phone, where you are moving, and where you go. i think we probably do not want to be in that same boat. i mean, just throwing that out there. that is not what we are about. perhaps, before we get excited about this speed bump on the collection of location data, maybe we should ask, is location data collection even a good idea? aren't there other investigative practices and tools we could use, as well as tools the prosecution can use, right, to protect our communities?
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then we look at cases like in texas, a man who woke up to his door being smashed in. he was pulled out in his underwear into the night with a 15-year-old, in 2017, and he spent five months in prison because of facebook posts. right? some people say that it might be the first case of a black identity extremist as a foreign-policy that leaked in 2017, a story about the fbi being concerned about people fighting for their civil rights. and i feel like it is a slippery slope and we have to be careful with that. in my community, we have young people who are caught up in large gang conspiracy charges because of cell phone data and location data, your with and who you know. there's a case of henry, who lives around the corner from me, and julani spent 18 months in
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rikers because of association. and i think that through location data, we need to challenge that. there are a lot of things we can do. i will wrap up. thank you, everyone. [applause] jumana: i will invite all three panelists back to the stage. i have been taking notes and i have some questions, and i know the audience will have questions, too. so i very much appreciate this discussion because there is a very exciting speed bump of the carpenter case, which has opened up a lot of possibilities, as the previous panelists indicated, and some messy possibilities in terms of where do we go. and the question of the practical impact, not just in
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the day-to-day life of a prosecutor or defense attorney, but the person who is at the end of that prosecution and the communities impacted by those investigations. so i want to dig into what i heard from all of you, if that is ok -- what time do we end, officially? i want to make sure that i leave some good time. yes, excellent. i do not want to cut anybody short. so i think there is a lot to dig into, in terms of, do we think about this in the sort of micro case, or do we say we have cell phone information and anything over seven days, what can you look at? do we look more broadly at other types of information that could fit into that mold? do we look at the macro, in terms of what is the larger society we want to live in? what does it mean if we have all
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this information, before you get to the macro questions that the lawyers love to talk about, more than seven days, or less than seven days? physical property or something else? so with that framing, todd, you are talking about, what do you do with cases already existing and how does the prosecution operate going forward? a couple of things came to mind when you were talking. one of the things you are saying is there are times when you would get bubble cause to get a warrant to do a bigger search, but if you look at the majority opinion, they are talking about how details on how invasive the information is. so should you even be able to ask for that kind of information in order to build probable cause versus the court saying you actually need to have a higher standard before you can access this information -- that sort of change. and what do you do with it? because right now prosecutors are any position where you can look at this conservatively and say this is exactly what they
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said and it does not apply to anything else, or you can look at it more broadly and say this is where things are going and let's go get a warrant going forward. it is what the government has been doing generally. one circuit decided, if you want the content of emails, go get a warrant. other circuits said, we will just go get a warrant. we're not going to fight these, we're just going to get a warrant. i would love to hear perspective on how broadly were conservatively you might approach in this as a prosecutor. you have done training, so what advice do you give the prosecutors going forward? because we have cases that already exist, but we have more cases brought everyday. todd: a trial prosecutor might come of different way from an appellate attorney like myself, but for me, if you can get a warrant, get a warrant. i love getting a case where on appeal they are challenging the validity of the warrant, because
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in that situation the law is so favorable to the government. i do not know how familiar you are with how this works, but initially when you apply for the warrant, you have to show the magistrate or issuing judge you have probable cause. but when the warrant is challenged in a motion to suppress evidence, the reviewing judge is not asking, not making an independent assessment, they're asking whether there was a basis for finding probable cause. even if the warrant does not meet the substantial basis test, you still have the good faith exception to the exclusionary rule. the court might say it does not meet the substantial basis test, but we think there is enough there that the police could rely on this warrant in good faith, so we will not apply the exclusionary rule.
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all that is to say, i mean if a prosecutor comes to me and there is some question about whether carpenter covers the type of records they seek and they have probable cause, go ahead and get a warrant. if we are dealing with a situation where you do not have probable cause yet and you need the information because you are still in the early investigative stage and you need the information to build probable cause, then if you are a prosecutor you have to take the decision on its face and it says it is narrow. and it says it only applies to seven days or more, so if you feel like you need that information and you do not have probable cause and this is data that does not fall within the
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scope of the decision, you go ahead and you do it and you litigate it and you see where it shakes out. i think we're going to find out very quickly going forward just how broad the reach of the decision is. jumana: i will put jason on the spot. when it comes down to that, we are in a place where you are faced with you do not have probable cause, should you still try to get a warrant, should you go with a narrow description, and all the messy litigation that might come? is there an assessment that says, let's look at the behavior we are alleging, is this serious enough to fight over? to me it is a question of, are we talking about something broke -- summit he broke into a house and stole a tablet versus you are trying to solve a string of more personal assaults or something that has a heightened importance to the community, where you might have a stronger leg to stand on to say this is a
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critical investigation and obviously it is not fit in the narrow exception, so would there be a way of approaching this where you want to maybe use discretion and think about which fights you want to have, or do see this more as use what you can use while you can use it approach? todd: from my experience, of course more serious and far ranging crimes, there will be more resources devoted to that, but to the extent that you are not somehow resource-limited, i think prosecutors, if they feel like they need this information to prove a crime, i do not think -- i don't think any prosecutor is going to say, assuming they can get this information for a particular crime, i do not think they will say, well, it is not serious enough.
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we are not going to do that. i think if they are going to -- they are going to use the tools available to them. so i do not think in most instances they will make an assessment based on the severity of the offense. if that was your question. jumana: so, this is a nice segue to jason, because i think most defense lawyers would say that prosecutors are never resource-limited. [laughter] and so, you know, bearing that in mind as you think about how to approach cases, you brought up a couple different things like ip addresses, social media, other things. but you live in baltimore and baltimore seems to like to use their full surveillance tools and technology together. so as i read this case, i know one of my colleagues was looking at the decision about all the things they are not deciding in this particular case, and he read it like a roadmap to all of the things that should be argued next.
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this one, this one, this one, pay attention. but in that context, they said, we're not talking about security cameras -- which i think for us, within about the camera in the corner of the store that is pointed at the register, making sure you are not stealing. but when i think about a place like baltimore, that likes to combine everything, you know, have cameras on the corners, they are feeding them into a system, they are using planes over a protest, and many times altogether, what arguments do you see making going forward that if location information involves privacy or is very invasive, these things in combination are so invasive that it not only hits that speedbump, but maybe even hits the wall that matt referred to. where do you see yourself when encountering different technologies?
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jason: i think you hit the nail on the head. once you start combining all these different technologies, the government can paint the picture of a suspect were innocent person, tracking their movements, affiliations tracking , who they talk to, when they talk to that person. and just because they are using different pieces of technology does not make it any less subject to the fourth amendment. the point is, we are getting to the exact same place that carpenter said that the court was reluctant to go. we do not want the government to be able to paint that broad of a picture of sensitive data, so i would argue that that is why surveillance is -- of the fourth amendment. jumana: i've seen almost entire right up where we felt like, what is this with the decision
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for a moment. do not get so excited, because the fourth amendment has already been gutted and you will not get a lot of protection in court. do you see any kind of silver lining to this in terms of the fourth amendment protections? i think a lot of defense lawyers are in positions where they have argued very successful cases, and that has been with the good faith exception, or maybe the evidence get suppressed and you have good language, but no real impact on your particular client or that case. and so do you see this as opening up any more doors for changing that analysis at all? yes will.jason: full disclosure, i am inherently skeptical. and one of the scariest types of prosecutors i have ever encountered are those like matt who say things like less just go get the warrant. we can solve all of these problems up front. what i have encountered, this is not widespread, but in my practice i do not find as many
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prosecutors who are as willing to take that extra step, so i think because i haven't seen many prosecutors do that, that is going to open the door to a lot more litigation, like you said. the the roadmap is already laid out to what we should be challenging next. i suspect my colleagues across the aisle will not seek the warrant, and it is shocking because warrants are so easy to get. it is not as if these are brain surgery. a lot of judges are just rubberstamping them anyway. so if we see the shift that matt is describing, just go and get the warrant, then i think -- that is exactly where we were pre-carpenter. but i do not see that happening right now. icv shortcuts. i think a lot of my colleagues will be looking for these orders that will leave the door open to litigation from people like me. jumana: any response? i know you are not a brain
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surgeon, but still very smart. jason: my bad. i'm sorry about that. [laughter] todd: look, i encounter situations where a search -- they could have gotten a warrant and for whatever reason they didn't do it. i think sometimes it is maybe just a little bit of human nature. it might be, yeah, getting a warrant might be relatively easy. but if there is an even easier way to acquire information that you think is lawful, then that is what happens. but i will say that, at least in my experience, following the jones decision excuse me, , following the jones decision we saw a quick transition to police acquiring warrants for gps tracking.
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you know, i don't know. i think there will be a response to this. i am pretty certain. yeah, i think that there are going to be isolated cases where, you know, they could've gotten a warrant and they didn't and then they open themselves up to suppression challenges, but i certainly think there is going to be an adjustment. that said, i mean, the carpenter decision does leave a lot of room to argue that it is fairly narrow. it says it itself. chief justice roberts said this is a narrow decision. so i think you can expect prosecutors to take it on its face. and if they cannot get a warrant, they will get the information without one. jumana: matt, i will switch over to you, because there is a question of information.
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and is it yours, is a property, is it for papers and effects? is it something that meets to be protected? and the question of, if you read the decision, there is conversation about what the founders intended versus how we live, so if i could follow up on the how we live question, how people have their information gathered and how they are prosecuted on association, whether it is through social media or location. but there are also people who argue that just as the supreme court seems to be catching on to the idea that your cell phone is not like the phone that you had to dial, was on the wall, it carries a lot more information and they should not be able to search just because they arrest you. they are sort of recognizing we are in this brave new world. but millennials coming up, they are constantly on their phones,
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they are facebook live, putting their location on everything, photographing food, sharing every aspect of their life, there is the idea of privacy itself is completely different, so we need to evaluate that way. so being the person who fits with tech and what it can and cannot do, i would love to hear your perspective on that. matt: we have this publication called "our data, our self." and when you turn on your phone, whose phone is that? is it your phone? is it tim cook's phone? when you send a text or you mail to friends and loved ones, and your phone creates data, is that your data or does it belong to the state? i would argue that nobody in their right mind thinks that is tim cook's phone, and i would argue that nobody thinks that their data belongs to anybody but themselves. but as a hacker and technologist, i can tell you all
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the different parties who have access to most of the data on your phone. that is why people want to find solutions to remain private. we are all complicated. the person we are in front of our loved is not the person we ones are in front of our romantic partner or people at work, or maybe even in this room. we are not hiding, but it is weird if you are acting like you are at the bar when you are in church. your phone knows all of you and cannot stop whispering as the inappropriate time to all parties. that is something we need to shut down, because nobody wants that. the supreme court, i guarantee you, nine justices, nine smartphones. i do not know who has the android, but nine smartphones, correct? does not make sense to have what i see as wonder woman shows up, truth lasso on you and you have to tell the truth, every location you were for the past seven days. one of those locations is going to seem shady to the right
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person. like, would you answer me if i said, tell me everywhere you are, you cannot lie, every minute for the past seven days. you would say, that is really weird. we need to catch up with reality. we need to catch up with where people actually are. millennials might over share, but snapchat deletes itself, well for them, they think it deletes itself. [laughter] so even they like ephemeral things. the concept of privacy will never die, technology -- we need to understand how it works, but we still have locks on our doors and chains on our windows. some things will never change. jumana: i know we are running low on time. i could ask questions for like three more hours, but i am not going to. i want to open it up for questions. for the audience, i know we have at least two people with microphones, so please raise your hand and they will bring a microphone to you. back there.
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>> hi. this is for the lawyers. what heard about how we do not have a bright line anymore. and i know this answer might change based on which direction, but would you be happier with a bright line than you are with the current state of play, where do you think the kinds of factors that were laid out in the carpenter case are a good thing, something you want to weigh on when you have a case in front of you? would you rather it be one day or 14 days, or do you think it is hard to get that right in the abstract? jason: that is a tough question. it depends on the context in which you apply a bright line. applying a bright line to things like the good faith exception may be a good idea, because if you apply a bright line there, there needs to be binding appellate precedence in this
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particular jurisdiction. then that gives officers, theoretically, a very clear guidepost. there it may not be a bad idea, because it gives everybody an idea as to what the law is. the problem is technology moves really quickly, so i do not know -- that may be where matt comes in. i don't know how practical it is to have a bright line when it comes to how many days are enough days to constitute a sufficient intrusion to warrant the warrant requirement. i do not think we can apply a bright line there. todd may think otherwise. todd: i think from a law-enforcement perspective, you know, it is always good to have sort of clear rules. you know what the ground rules are. to that extent, if they had come out and said seven days or less, no warrant.
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seven days or more, warrant. at least you sort of know what you are dealing with. i am not sure how you get there in a sort of principled way under the fourth amendment. i think part of the problem that is happening here is just the existing fourth amendment rules do not fit very well in sort of this new age with all of this data that is being generated by our new technology. and i think that is what you see with this decision, where you have all four dissenters writing separate opinions, talking about their view of the fourth amendment. so -- and, you know, i did not at first share the criticisms of the cap test, but now i am sort of starting to wonder.
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because, i don't know, it certainly puts a lot of power in the hands of judges to decide what society considers a legitimate expectation of privacy. and i do not see a lot of clear guidelines within that framework. i guess the short answer to your question is, yes, clear rules are good, but i'm not sure how you decide under current fourth amendment law, less than seven days good, more than seven days bad, get a warrant. : it is an interesting question. that itearn as lawyers is whatever you can argue. talking to todd before started this, how this case seems to
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have flipped everything on its head because it is usually the prosecution saying this stuff is so specific that we absolutely know this is what was happening. so defense says, this is general. there is no wake up at my client there. this case seems to be the exact opposite where those arguing on behalf of the defendant were saying, this stuff is way to two specific. the government is, it is general, it is fine. it and arguess at it is so broad or so narrow that -- or it means something different. bright lines can be hopeful and it can also be overturned or sidestepped. i know there was a man right there in glasses. >> thank you. thank you all for your comments. i'm interested in parallel construction, how the government conceals some of its new technology sources, especially from the defense in cases. i'm wondering if carpenter changes inability whether to conceal it, whether it will be
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challenged in cases still on appeal, and how you see this playing out with attempting to apply carpenter to new technologies. jumana: i'm going to explain for people, parallel construction meaning the government had discovered something on one track it are using technology or way of obtaining evidence that maybe they don't want to disclose in court or they should not have had or something, so they go and re-create a path to the same evidence thrown more lawful or more transparent means. >> i don't see how carpenter is going to give us in the additional tools to challenge that. to the extent that the --ernment needs a warrant we're going argue that they need a warrant to see things like emails or maybe text messages
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are browsing data. i don't know if the government tries to conceal what they did prior to getting award does i don't know carpenter changes it. i would love to give it more thought. at this moment i don't see it. instanceay be another where being an appellate attorney a perspective might differ from trial prosecutor, but we handled some cases involving the use of the cell site simulator and there was this nondisclosure agreement that the baltimore city state's attorney office is involved in that they were not supposed to reveal their use of the device. this stuff is going to come out and you're going to have to deal with it. i would prefer that it just be transparent -- you're not going to be able to hide it. know, bey, you
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transparent and acquired information in a lawful way. i always prefer that, of course. i don't know how much that gets at your question. you're not going to be a baha'i this stuff forever. if you think it is going to stay sigrid, it is probably not. >> i just want to add we used to use biometrics, let measure your head to try to figure out who you were. then they were, use fingerprints and everyone has a unique one and we started using it to solve crimes and protect folks. today we live in a world where technology that is used to investigate crimes is a secret. willing or about things like cell site stimulators and x-rays out of accident, just doubled upon these strange things. people sitting in prison wondering, how did i get caught? law that says there
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needs to be a town hall or open conversation about this technology. how would you even know that it was parallel construction? in cases like baltimore that you brought up in an st. louis and upstate new york, people just dropped the case because of these nondisclosure agreements to protect the tech and keep it top secret. i think that is dangerous. .> we have time for one more questionk this is a for jason, maybe others. we have spoken for most of the day about the implications of carpenter for similar and other types of data collection. but can you speak briefly to the implications for defendants data?ted using csli in short, is this a watershed procedural case that will allow
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for carpenter to bring a petition for collateral review? jason: probably not. i don't think -- i don't see us going back and looking at convictions were people were convicted -- were prosecutors used data collected similarly in the carpenter case. i don't see we're going to be able to go back and overturn those convictions or even challenge them. i've heard people ask whether we will be able to sue the government under a 1983 through for the violation of the fourth amendment. i don't see those types of cases because of qualified immunity. no, i do say, but i don't see civil suits nor do i see is going back and overturning convictions. >> if you have already been slivicted based on the c acquired without a warrant and
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-- well, let's say you made a and her casesress pending on appeal. the new preserve the argument and you can potentially challenge the admission of that evidence at your trial. if you have already had your appeal and you don't have a you didd argument that not try to suppress this information at trial, no, most likely those defendants will not get released. case,penter's particular not to put him back on the panel, but i mean the case goes evidence would get tossed out but that does not necessarily mean they can still intentionally retry him if they have enough evidence to reap prosecute -- re-prosecute.
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for someone like carpenter who succeeds -- there may be good faith arguments is a mention in my talk, the government list of potentially be able to use the information going forward. the carpenter decision does not necessarily mean the evidence is going to get tossed out in every case where they have acquired it without a warrant. >> that doesn't and they don't -- other there evidence, right? the other question is how to handle this evidence going forward. i would like you to join me in thanking our panel. [applause] >> on c-span this week at 8:00 p.m. eastern in prime time,
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tuesday, the weekly standard hosts a conversation on the millennial generation will stop >> what is happening is that in inpuses in high schools terms of not reading certain books because people might get triggered by them and all that. that is a fight worth fighting. people making this decisions are often the baby boomers are not the millennials. >> wednesday, goleman sex chair and ceo lloyd blankfein. >> you can go to the currency were they say it is worth what it is worth because i the government says it is, what could you have a consensus currency? it is not for me. i don't do it. i don't own bitcoin. far as i know goldman sachs has no bitcoin. but if it does work out, i can give you the historical pathway. >> racism in america. >> black fears are justified. white fears or not. >> friday, kirk cameron, jeff sessions, and cory gardner
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speaking at this years wasn't conservative summit in colorado. >> we at the department are hammering the criminals and violent groups, especially ms 13, that vicious gang, one of the most violent and inhumane groups in the world. rape, ando," kill, control." c-span.week on yesterday the white house, president trump met with dutch prime minister mark rutte in the oval office. they talked about a range of issues including the upcoming nato summit in brussels, trade relations, and nominating a new supreme court justice. here's a look. >> good afternoon. pres. trump: good afternoon.

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