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tv   Politics Public Policy Today  CSPAN  December 5, 2014 5:00pm-7:01pm EST

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orin kerr. at that point i understand that you agreed to right a manual on computer crime investigations and that is what got him into fourth amendment doctrine generally. he joined the faculty in 2001 and is one of the most highly influential scholars. 150 judicial opinions have cited his work and many scholarly articles have sited his work. chief justice roberts last year appointed him to the federal advisory committee for the federal rules of criminal procedure. now in 2004 he argued that the court should approach the fourth amendment cautiously when
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technology is new or rapidly developing. instead they should use model recommendation and emphasize the effectiveness of stungsal advantages. but a decade later when the case came forward, he suggested that the equilibrium had been upset and technology was giving government dramatically expanded power. at that point he argued for exuder spect doctrine evolution. it is my great pleasure to welcome you as well. we also have a judge joining us from chicago. we thank you for joining us and can you hear? i'm hoping that you can hear everything that is happening. yes, you can. good. so he really needs no introduction for i think everybody in this room. he went to yale, he was first in
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his elementary school class at harvard and president of the harvard law review. he clerked for justice brenan, then at chicago before he was appointed to the bench in 1981. something you may not know about him is concurring opinions just started a multipart series on him last week which is looking at his biography, views on privacy, the exclusionary role and the politicizing of more. we will be hearing more many n the coming weeks about the collective works and thoughts on these issues. this was a task force focused on satellite communications. they explained in a special
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message to congress. commercial calls will be carried routinely by satellite. this will encourage international commerce, productive machinery can be operated at great distances. he went on to say our country is firmly committed to a system for commercial communications and the judge at the time worked on these issues. he has since then developed a reputation and has written more than 40 books, 350 articles and book reviews. he also mentioned in 2012 that he is not interested in becoming part of the smart phone
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generation. i would like to welcome judge posner to the panel. she was appointed by clinton in 1998, originally from wisconsin and graduated from the university of wisconsin before coming to georgetown for her law degree. one of our alums here at the law school and obtained an honorary degree as well. she is a former managing partner. she has made law on laptop privacy and closed captioning for the web. on monday she will be in seattle
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to hear smith. she is also in the midst of a two year stint. i know i clerked on the night circuit. she uses fitbit and viber as well as a myriad of other remember applications. she uses an e bench book which gives access to much which she al uses while on the bench. she has stated in my view the internet has been a game changer. when confronted with the constant question that arises as to whether the courts are really familiar with the types of social network technologies and new technologies that are emerging, she responded just because you don't see us on facebook or tumblr doesn't mean
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that we don't understand how it functions. i found that particularly insightful. finally, it's my great pleasure to introduce my friend and colleague, professor david cole. he is the honorable george mitchell chair here. he went to yale as an undergraduate as well as yale law school. he has been described as one of the country's great legal voices for civil liberties today. these were cases on flag burning.
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humanitarian law project which challenged statutes regarding material support as well as a canadian citizen rendered to syria by u.s. officials. david has received two honorary degrees and awards as well. welcome. >> thank you. >> now we're going to get into the discussion. and the first thing i would like to note, this conference was really set up as a dialogue between panels, between panelists, between everybody in attendance and those of us who are on panels. we will be referring back to previous panels. to start out one of the things that was emphasized was the direction of technology for 2020. we heard we will see consolidation, increasing use of computers and connections
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between them. andy noted that by 2017, 66% increase in mobile devices we would see by then. dino noted they would be cheaper and less secure. at the same time at the beginning of the conference the fact that we're seeing new kinds of crime. we will see increasing threats with regard to child pornography, extortion, economic disruption. so the first question to put out there and judge posner, i'm going to lead with you. what does the fourth amendment look like in this new technology world? where is the doctrine now as we move forward? >> well i don't start with doctrine. that's backward looking right? you know -- that's all ancient history. i think the way to approach these questions is try to figure
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out, you know, what is a sensible response and then is it blocked by, you know, controlling person? especially when you're dealing with such a rapidly changing area. i think looking at the case is unhelpful. so i start with first, you don't really get anything out of the fourth amendment. it says that searches and seize sures should be reasonable. it's important. and the general war was forbidden. there is nothing to suggest that warrants are ever required. so the fourth amendment doesn't really do anything for you.
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i want to look at a problem and see what the solution is. i don't think there's really should be a large role for courts in dealing with the problem of surveillance at the largest area here. and the reason i don't think that is in the usual constitution case it is some kind of, someone is doing something very unpopular, minority often, some not you know with extreme ideas, and the function of constitutional rights is to protect these people from the majority, from state legislatures, some congress. but in the case of surveillance you really have a very good balance that allows this to be dealt with by the political process. because everybody is very
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concerned about national security and crime and cyber harassment and so on, all right? so if you have this kind of balance where people care about both sides, the arguments for surveillance, the arguments for limiting surveillance, i don't see why the courts have to get significantly involved. and it's its related to the point that justice alito made in the jones case that especially when you have rapidly changing technology, there's a lot to be said for leaving it to the legislature to deal with. because the judges don't, the level of technological -- technological knowledge among judges is very, very low.
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there are exceptions like judge mckeown but it's very low. if you look at the supreme court, for example, there is none of the nine judges have unique kinds of technological background. they are all humanities majors from college. they don't know anything about technology. so i don't think they should be taking an active role. and really that's, that's my take on these issues. oh, i do want to add one thing actually. i think privacy is actually overvalued. and the reason is if you think about it, there's some forms of privacy which are entirely proper. trying to keep your passwords and your social security number and all that secret, that's
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protecting yourself entirely in a legitimate way. but much of what passes for the name of privacy is really just trying to conceal the disreputable parts of her conduct, right? so privacy is about, privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause of the people not to want to deal with you. on a social plane or on a business plane. so i don't know why that kind of, that kind of privacy, i don't object to its being, to having some protection for it but i don't see how it can outweigh national security
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concerns, for example, very serious criminal activity. i think we glamorize privacy and are not realistic about what it's really about. tried to make you look better, and you are, right? i also think that, that privacy interest really should have very little weight when you're talking about national security. the world is in an extremely turbulent state, very dangerous. and i think national security has transcended significance, and it shouldn't be, the surveillance activities of the national security agency and the fbi and so on, i don't think they should be curtailed in the name of privacy. if the nsa wants to back you go all the trillions of bits of
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information that are flowing through the electronic worldwide network, i think that's fine. they can vacuum it. they can search it and they can use it for any national security purpose. what i don't think they should be permitted to do is turn over information to accidentally collect, vacuuming minor criminal activity. i don't think they should be allowed to turn it over to law enforcement. you know, a minute to murder or something, theft, that's one thing that road crimes and theft and bribery, i would not permit that. so i would protect people against the use of national security intelligence to deal with ordinary criminality, but as far as actually protecting national security, i think the agency should be given carte blanche. >> thank you very much.
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so i was hoping for a controversial panel. [laughter] i shall not be disappointed. we have on the table ancient history, irrelevant in this day and age. the courts don't have to get involved in this. they should be legislative handle the judges or humanities majors, i believe that was the quote suggesting incompetence to address this area. privacy is overvalued. we will get to the border. judge mckeown and come i'd like to open -- [laughter] >> i agree and i disagree. to begin, i do agree with the point on congress that so many of the issues the courts are facing our political and policy issues that ought to be first look at why congress. i think it's interesting if you go back, i don't talk about the case is made with the same as my colleagues, but i don't think he
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means that in his heart. but if you go back to olmsted, it's interesting to because i think it was chief justice taft actually said that these issues, it was basically surveillance issue, ought to be looked at from a congressional standpoint. however, is not a total solution because once you pass a law, it's going to get challenged. i don't think you can simply say that these issues are the problems of the congress because we know that whenever they pass these laws, and they will be subject to constitutional challenge. so like it or not i think you'll end up back in the courts and we can't sidestep and say we wish congress would solve the issue. i do think there are things where courts are struggling to look at issues and that congress on to step in. i got to get their act together
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look at some of these. here's one of the problems we have, and i know from my life as an intellectual-property intellectual property lawyer is that once you address one technology a new one pops up. you can challenge one thing or you can challenge a copyright or a digital problem or a privacy issue but then there would be a technological workaround. when that happens we know that the courts move very slowly and technology moves very fast. so you always have principles lacking technology. that's why we deal by analogy but it's not always perfect. they are one of the difficulties we have is we are forever dealing in small items. it's beepers today, -- it's a deeper today, a cell phone or a total of tomorrow. each of these is some incremental part of the technology. at the issue i have is we do
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have a construct that is not very illuminating, of course the fourth amendment, we don't throw out the fourth amendment. we just can't divide much from it. we can't define a lot from it other than we look at reasonable expectations of privacy and we haven't of course for the trespass concept. my question is this, and by -- i would interest in the other panelists, how you define a regional expectation of privacy in the world that we live in now? because it is a very different world. i wouldn't throw privacy overboard. perhaps as my colleague suggests. i think the europeans have a very unusual and odd construct. they have come up with recently the right to be forgotten so that you're on the internet but now you can go in end quote take it down which, of course, also poses a lot of technology problem. we are in an era where a lot of people put things on facebook that are pretty amazing.
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a lot of times they wish they hadn't. they only wish that later. so i don't think we've given up privacy. i think we need to think about it in a different sense. and the courts i think are grappling with how you look at reasonable expectations of privacy because they're so objective and subjective expectations of privacy. my bottom line is overlooked to congress but i know it's going to end up back in the courts. i do think it's incumbent upon lawyers to educate the judges on a case-by-case basis. we may be humanities majors. we may ask questions as they did in the supreme court. perhaps michael, like what's the difference between this and the fact that suggests some judges and justices are not as fluent in technology as they might be. the fact is they will be in the court. i think of lot of help can come to the courts from the lawyers
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appearing before the court. i see in many, many records really an explanation of how some of these things work. in my view an online is technology matters when you're deciding these cases. >> michael, can turn to you on this since you've argued many of these emerging technology cases in the courts where justice scalia comes out and says where it is not an general public use and that speaks with the result is that use of that technology. can you speak a little bit about cairo and other court has been grappling with these new and emerging technologies? >> so i think that was interesting about you these things from the vantage point of the supreme court consideration of them is that the court is saying these things many years after that are occurring. they are way behind the curve on
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technological development. i was sitting and listening to a kind of criminal activities people were talking on the first panel and thinking this is like light from a distant star but it's going to turn up on my radar screen five or six years from now after everything is moved on and it's in some of the relm. i think the court gnosis to a i think the court gnosis to a certain extent. so what struggles with these new technologies with kind of limited tools to work with. the fourth amendment says what it says but it's not especially eliminating untidy resolve any particular problem. the prior doctrine is the starting point for the lawyers and judges and justices to analyze it, but doctrine often runs up and get to new problems. so in an on the thermal imaging case, the court me that something was going on. the fact that you weren't having to go into somebody's house to find out what was going on
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inside of the house was a troubling development they seem to implicate the kinds of norms that animated fourth amendment to begin with, but fell outside of what anybody in the 18th century would've contemplated. the court in kyllo reached back and said we're going to try to translate the norms that were the foundation of the fourth amendment into the new technology by looking backwards. we will give the house the same degree of protection it would have had against a physical search when that new innovation is occurring by virtue of technology, namely thermal imaging. in jones also the confronted gps tracking, the gps tracking the real privacy point of view is that you're able to follow people are going doing and see where they're driving around and you can build a mosaic of their life. is why it's useful for law enforcement. it wasn't the attachment of low magnetic device somewhere on the
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bottom of the car where the fbi actually didn't want me to know what is preparing for jones on the theory that wasn't within my zone of need to know. but putting a little magnetic device on the car was at the intrusion yet the court reached back, found itself comfortably with five justices think this is a trespass. we would use kind of the 18th century concepts to resolve this. there were other justices on the court led by justice alito's concurrence that wanted to update this and review the gps inquiry in light of caps and balance social expectations of privacy against the governments interest and really modernize the fourth amendment but that didn't carry the day in jones itself. then you get to riley involving search incident to arrest cell phones. cell phones are kind of like modern day versions of carry
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around the kinds of things people used to carry around pictures and the wallets, address books, diaries, letters, all of that stuff could be searched under standard search and consent arrests doctrine. the courts reached a breaking point where unanimously it found that cell phones are just qualitatively different from what we have been bequeathed from, and we can't view this kind of intrusion through the lens of the past. we need to conduct a fresh fourth amendment balancing and look at the law enforcement interest and balance them against the privacy interest kind of in the way judge posner wasn't saying should be done. viewing the problem from today's perspective, really see what's going on, not just be him didn't buy the doctrine. riley also elicits one of the limitations on the courts ability to do that.
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it is kind of a time lag phenomenon. and that is one of the problems that government pointed to and why we should be able to search cell phones from people as we've engaged in a probable cause of arrest and gotten into government custody is that our phones can be subject to encryption. once they lock it can be very difficult if not impossible to break through that encryption, and actually conduct a search once you've gone through the procedure root of the fourth amendment prescribes of getting a warrant. the courts reaction to that was you say that but you aren't able to point at any data that proves it's been a problem and you're making this argument for the first time in front of the supreme court which is part because the lower courts have not come to any function which poses the encryption problem, so we were trying to provide them the information we thought we would be valuable to them in deciding the case.
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and the court said like, nothing doing. you don't have a credible case on the. within six months have apple coming out and releasing new phones with encryption technology that says we're not going to keep the keys so once you get the stuff encrypted when the going to be help the government get through. that is a technological development that wasn't available to the government or for the court to consider when it decided rielly. it might not make any difference to the court by do think it illustrates the problem problems that we have when technology is consistently leapfrogging the doctrines that have been laid out by the courts, and the courts are given very little choice but to decide concrete cases one at a time. they can't count on congbpíññ intervening. they can't just say this is a hard problem, we will not be set
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at all. unless you get concrete defense out there who are asserting interest. the last thing i will say is i think the courts are probably come if not the best place, at least may be the right place to try to be considering how much the value of privacy really should bear on the law enforcement techniques. i say that because i think i have a slightly different slant from the government side a slightly different plan on the valley of privacy that has been perceived today as underlying fourth amendment interest everything can be traced back a stroke ago and that a certain degree of privacy is perhaps a precondition for freedom, political freedom, artistic freedom, personal autonomy. and that it's kind of baked into the nature of the democratic system
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that you need that in order for there to be a flourishing individual life. and at the same time the government does a very strong interests to protect people against crime and to ensure that people are safe. these are tricky to balance and maybe the legislatures can do a good job with them. they are democratically accountable. they can gather information in a different way than courts but at the same time they may not necessarily be as sensitive to some of the underlying values that are part of the constitutional heritage. that's what they think the courts are going to continue to struggle with this, with perhaps not fully adequate tools but involving the doctrine one step at a time as they see the cases. >> we have u.s. versus jones with the expectation of privacy defined by justice scalia in terms of tresspass -- looking at trespass, but the shadow majority that he knows in which justices alito and sotomayor in particular raise these issues of changing technology and that this alters it to the next year we have this dog sniffing case which was five
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four where once again you have decided on trespass grounds but justice kagan in her position which is joined in by justice sotomayor and justice ginsburg says that this action harkens back to kyllo under the recent expectation under task type does but we end up now with riley but in the riley case chief justice roberts recognizes modern cell phones differs in a quantitative and qualitative system of objects that an arrest he might be caring and does implicate privacy concerns far beyond those implicated by the search of other objects. david, you wrote in the nation the title of your paper is the one supreme court decision we can celebrate it in ruling policemen that search cell phones without award the court brought the fourth amendment into the 21st century. i'm assuming you agreed with the courts opinion on riley to can
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you say a bit more about that and how far that went in satisfying your consent have expressed the computer severely weakened the fourth amendment, so much so you side and other times in the modern digital age the fourth amendment means very, very little. >> the first thing i want is it is really unfair to ask michael to talk about three cases that he lost. [laughter] but i think it's interesting. michael doesn't lose many cases in the supreme court. not a one, because he's one of the best advocates that this nation has. number two, because he's representing the government against bad guys, pretty consistently. and yet we made him talk about the three cases he's lost. i think maybe michael does as well by his final remarks, i think it does suggest that the court understands that we can't simply apply 19th century doctrines 21st century problems, that we do need to adjust the
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rules to take account of technological change. in all three of those cases, in essence the government's argument was there so difference. just apply the old analog of your precedence and we win. and i think the government was quite confident at least in some those cases that they would win because it's so hard to come up with a good rule to govern the digital era technology. and yet in all three the court said no, we are not going to just apply lock, stock and barrel old rules in these situations. in fact, in the riley case where the government said look, you've always held we could search any continuing to arrest a person on probable cause, and cell phones and smartphones are really materially indistinguishable from any other kind of container, wallets, address oh'y
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books, diaries, et cetera. chief justice roberts said, arguing that cell phones and smartphones are materially indistinguishable from other containers is like saying that a horse and buggy ride is materially undistinguishable from a rocket trip to the moon. there really is a qualitative difference, and doctrine has to take account of that difference. so i'm encouraged by the fact that the court has seen fit to bring the doctrine into the 21st century. i think the next big area that requires that kind of adjustment will be the third party disclosure rule, the rule that when you share information with a third party, you have forfeited your visual expectation of privacy and that information and, therefore, the5 government can get it from the third party without any kind of fourth amendment limits whatsoever.
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it doesn't have to a warrant, does not have probable cause, doesn't have any reason to suspect you and before it can get on a whim. it can get it against everybody. that doctrine was developed in the context of informants, them off your guy talking to an informant and telling the informant as he is engaged in some criminal activity at the informant going and telling the police that and the court said i think quite reasonably when you that you've committed a crime you assume the risk that person might go to the cops or the cops might go to that person and, therefore, there is no fourth amendment constraint. the problem of course is in today's world we share with third parties every detail of our every life. 3ú imagine if there were any country out there that required people to tell the government on
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a moment to moment 24/7 basis s) where they are, what they are reading, who they are with, who they are talking to, what they are saying, and what they're interested in, what they are thinking about. we would say that is the definition of totalitarianism. we would feel very sorry for those people who lived in that community. we would say we certainly don't want to live in the community, but we do live in the community. the only difference is we quote-unquote voluntarily share all that information with third parties. our internet service providers, are phone companies, our credit card companies, our mobile devices, et cetera, et cetera, et cetera. the cloud. and under the third-party doctrine that means that there's no constitutional limit on the government gathering up all of
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that information from those third parties without any basis of suspecting you of engaging in the kind of wrongful activity, which then opens up the possibility for the kind of dragnet surveillance that you see the nsa engaging in. so i think we do live in a brave, new world. we have walked into it, the government hasn't imposed it upon us. but unless we change the rules we will allow technological advance to render privacy like the eight track player, something that we once had but no longer is of any use. >> i'd like to cabinet the third-party doctrine and judge poe to come to you in just a moment on a third-party doctrine to see if you agreed with david on this point but before we do that, come on, i would like to ask you but
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technology. justice alito cited and quoted you in jones about talking about technologies influx. at what point is a statutory come at what point is a doctrinal? and the title iii moment in regard to these technologies we currently are seeing? >> okay. the question. let me try to get to them. my overall view which is consistent with a lot of which occurred on the panel so far is that initially there's a third of rapid technological change with any specific area of technology where the courts should be deferential to the the facts are changing too quickly for the courts to step in. by the time the supreme court tries and that a will, that technology has become obsolete. it's hard for the courts to step in, special appellate court to try to break at the quickly changing technology. after a while my sense is most specific technologies begin to stabilize come at the point courts are more able to step in and say this is how the fresh
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balance of the fourth amendment should apply to these new facts. the dynamic that several panelists talked about, whether it's refreshing the balance of the fourth amendment or adjusting the rules, i think this is a dynamic that happens and has happened in fourth amendment law from the beginning. sometimes it favors the government, sometimes it favors on the case. it's really a two-way street. it's tricky a thing for courts to know when is the best time or when is the time when the technology has been stablized. i thought for example, in a cell phone context that by 2014 cell phone technology had pretty much stabilized. you had a rough sense of what cell phones could you and you could think back to say 2000 or so when cell phones were much newer, when the capabilities were much easier. much lower. the courts try to figure out how
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the law should i-ply apply to e digital devices. going back to the 1990s, had no problem applying the analogy from the physical world to wallets or packages that somebody was carrying. because the early digital devices just couldn't store that much information. then you get i think they massive ship with the introduction of smart phones, 2007 or so. and so i think by 2014 we have isn't okay, this is what cell phones are. it's enough for courts to begin to step in. maybe i was wrong in light of the apple announcement that followed afterwards. that's the kind of gang changing dynamic which i think does affect how judges get a sense of how much does this device alter the privacy dynamic of the prior ruling. i'm sorry, the apple announcement involving ios eight that michael referred to earlier. it is i think a difficult question of when courts should step in but inevitably i think there's this early period and then there's a stabilization
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point. and i'm not saying, obviously in some broader sense of technology is constantly advancing but individual applications or individual functionalities will stabilize. an example i think of where the supreme court could step in that would be fourth amendment production in stuart deane, contents of e-mail. e-mail is basically the same as it has been for decades. the technology, the basic notion of content transmitted and stored over a network is one that sort of part of the nature of a communications network. >> so warshak was on the right track? >> yes. >> what about data and data mining? >> i disagree with david's suggestion.
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really, i think non-content information is really the big question in terms of what courts should do. clearly we have much more metadata out there, much more revealing metadata, and they tend to think we are in a period now when this is an area of legislative protection of not judicial protection to nature of metadata is evolving. coming up with a contrary rule saying all metadata is protected in some context is quite hard for judges to do, especially because the nature of metadata that is out there. it's changing so rapidly. my own approach would be questions about smith v. maryland, that should amend the law for the time being. maybe even the nature of metadata will change overtimes and courts can accept it by saying this is how should be addressed. in terms of the overall balance, it's important just as we think about we don't want the government to have too much power. we don't want to say, for example, everything, we want to see content information is unprotected online in the case of privately held content. on the other hand, if we go the opposite direction we could say all metadata is protected under the fourth amendment by a board requirement.
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i think that should take it way too far but it ends up being the privacy protection we have in the online world would be much greater than the off-line world and if there's a lot of practical wisdom in the balance the physical work early strikes that somethings are not protected under the fourth amendment and other things are. trying to maintain that balance to my mind requires right now a lot of congressional action is in the possibly of judicial action later on. >> can i jump in on congressional action for just a second? i'm not sure what world we live in, those of us on the path toward congressional action live in. but the world i live in is one where congressional action is -- it doesn't happen. a couple of examples. the u.s.a. freedom act which would have reined in some of the most extreme actions that the nsa was engaged in and would have improved process by which
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foreign intelligence warrants are granted was favored by a vast bipartisan majority in the house, was favored by a significant bipartisan majority in the senate. was agreed to by the obama administration. now, you would think that would be a law, right? the majorities in both houses agreed to by the president. and yet it was filibustered. couldn't get 60 votes required to get through this and. another example is the rule with respect to e-mail. we have a statute that deals with e-mail but it was passed in the nether regions of the '90s, and they drew this ridiculous distinction at the time saying e-mail less than six months old will treat like a phone conversation but he have to get a warrant, but if it is more
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than six months old you don't have to get a war or probable cause to see it. at that time that was when your computer was always telling you delete, delete. you're getting over quota, et cetera, et cetera. there is no such thing as over quota because the space is unlimited so everybody keeps their e-mails forever. so the notion that there is a difference between an e-mail one day short of six months and won the over six months is completely ridiculous. everybody agrees to that. and so a bill to fix that has overwhelming bipartisan number of supporters in the house, not just voted on an actual cosponsors, something like 280 cosponsors in the house. it has vast bipartisan support in the senate and it's never even come to a vote because a single member of the house judiciary committee which happens to be the chair is against it. in this climate looking to
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congress i think is not likely to provide as with much of a response. >> i might add that there is no delete delete. in reality. >> just a response. yeah, i think the test for whether we should be relying on the legislature shouldn't be whether specific pieces of legislation should have gone through yj5zco didn't or whether we reached 60 votes because of whoever was elected. i think you can tell different stories on both of those pieces of legislation as to what one in the context of e-mail, i agree 180 day rule makes the sense but it's been held to be unconstitutional i the sixth circuit, and all of the major internet providers completely ignore the statutory distinction. they say a word is required to the reason congress has not enacted legislation in this area because there is much less pressure because the providers
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are not following the statutory rule anymore. if the provider said okay, we will follow the statutory rule, we will start giving out e-mail that is over 180 days without a subpoena, that role would change really quickly. it's just the pressure is no longer there because the courts are not following it. with section 215, u.s.a. freedom act, i think that something because of the statutory sunset, that's a rule that's going to have to change at some point before i think it's june 2015. so we will see another round of legislation, one law didn't pass. i think another will in a few months. i'm not saying that's perfect. i think it's better and courts stepping in when the technology is evolving rapidly in trying to announce a specific rule today that in two years or 20 years or even just two months could look outdated. >> it's also 702, as well as section 215 of u.s. pariot act.
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judge posner, let's turn to you now. third-party doctrine, time to overturn smith v. maryland? is a still relevant in this day and age of? >> what do you mean by third-party doctrine? >> the information provided to third parties is not subject to fourth amendment protections. do you agree that still the case or do you agree with david cole who is just suggest we live in a different digital age in which your information is necessary given to third parties i nature of living in which case it's time for the courts to recognize this and extend protection to information provided to third parties. >> well, that sounds reasonable. depends on what the information is. professor cole. i don't understand exactly what is the information that he's worried about? i was just looking -- i have a cell phone, iphone six.
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so if someone drained my cell phone, they would find a picture of my cat -- [laughter] phone numbers, some e-mail addresses, some e-mail texts. what's the big deal? other people must have really exciting stuff. [laughter] on their cell phones. do they narrate their adulteries or something like that? what is it you're worried about? >> that's a great question, judge posner. and i, like you, have only pictures of cats on my phone and a word about anything for myself but i'm worried for others. no, i mean, your question which goes back to your original statement of what's the value of privacy unless you've got something to hide? that is i think a very, very shortsighted way of thinking
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about the value. i agree with michael. privacy is critical to democracy, critical to political freedom, critical to intimacy. your question also brings to mind a cartoon that was in "the new yorker" just the last couple issues where a couple are sitting in bed and have a video surveillance camera over each one of them looking, trained down on the bed. the wife says to the husband, what are you concerned about if you've got nothing to hide? nothing to fear. it seems to me that all of us and whether we are engaged in behavior or whether -- cat (bf a
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entirely in cat loving behavior or whether where going to psychiatrist or a portion of providers or rape crisis centers or alcoholics anonymous groups, or have an affair. all of us have something to >> i still think the value of that life would be significantly diminished if it had to be transparent. so i think, again, you could say, well, if you've got nothing to hide, you're not engaged in criminal activity, let's put video cameras in every person's bedroom. and let's just record the video, you know, 24/7 in their bedroom. we won't look at it until we have reason to look at it. you shouldn't be concern ed.
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>> the sex videos, that's silly. what you should be saying is you should be worried about the types of revelation and private conduct which discourage people from doing constructive things. so you mentioned alcohol -- >> i find sex to be a constructive thing. >> let me say this, will you? >> sorry. >> look. that was a good example. you can have a person that has a alcohol problem. and so he goes to alcoholics anonymous, but he doesn't want this to be known. if he can protect that secret, and he doesn't -- then he's not going to go to alcoholics anonymous and that's going to be bad. that's the sort of thing you should be concerned about rather than sex videos. there, i agree with you. that's a good example of a type
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of private information that should be protected. >> well, let me give you an example of sex privacy. i think we all have an interest in keeping our sex lives private. that's why we close doors to our bedrooms, et cetera. i think it's a legitimate concern. think about the government's use with sex information with respecteds to dr. martin luther king. they bugged his hotel rooms to learn that he was having an affair and then sought to use that and the threat of disclosing that affair to change his behavior. why? because he was an active, political, disdent fighting for justice. and we have a history of that.
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>> absolutely not. again, it's -- the question is -- >> why not alcohol? the sex photos on your cell phone? >> so i imagine if dr. martin luther king was having an affair in 2014 as opposed to 1960s, his cell phone, his smart phone, would have quiet a bit of evidence that would lead the government to that affair. he'd have call logs, he might have tektss, he might have e-mails. all of that would be on the phone.
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>> so i actually think that the evolution of the technology is presumably why we are here. and the pressure that it puts on doctrine is what occasions the purpose of having a panel like this in the mix. and it really seems to me that technology is doing three things. one is that it is increase iing opportunities for criminal activity. you know, hacking into large, corporate data bases, individual's computers or to systems that control electronics. it creates great risks that, in
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some ways, give rise to new challenges for governments to meet if they're going to protect the citizenry. it also enhances government surveillance opportunities in a lot of ways that we have not talked about in this panel. we have ubiquitous license plate readers now out on the streets. we give information to e-z pass when we drive around in our cars. and then finally, i really think this is a crucial counter point. we really aren't giving away a lot of information now far
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beyond the kinds of shared information that used to happen in the past. and if you just look at facebook or many of the other social networking sites, its's not like the government has to go out there to investigate people's private activities by peering into their bedroom. you just have to look at it on facebook. or on many other social netwo networking siets where people are sharing an amazing amount of information, totally voluntarily, and they are really changing what expectations and privacy are. now, i'm sure they're not sitting there thinking i'm sharing this with my 500 friends and my page is public. i think when you have those three things, increased technological potential for crime, increased surveillance techniques that are really
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transcending a normal fourth amendment analysis and changing expectations of privacy, it is extremely hard for courts to find the right balance. i'm not going to go into any detail on the 215 problem, but i do think it is really quite a contrast to deposit a program that is going to look at met data, not content data, and take some efforts to see if there are connections between people who are implicated in terrorist organizations with information that the government acquires by breaking into their houses or otherwise, intruding on their privacy.
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it leaves out one set of the balance. >> michael, two rules before i move to the judge. you might collect it for national security purposes, but then, to use it for ordinary criminal activity, that's not a sufficient mag any tud. that there ought to be a line drawn there. that's another aspect.
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and, second, there's some tension in your view here that you're saying that we have changing expectations of privacy. at the same time, privacy is a precondition for freedom. so just ask physical trespass changed with cats, are we at another katz-type moment here where the reasonable expectation of privacy test is no longer sufficient to protect this other value that you've articulated with regard to the preconditions for freedom in a democratic society. >> so, with all two-part questions, i'll answer the second one and i'll forget the first.
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if automatic license plate readers are installed for good and valid purposes on public streets where you drive, and they're going to be able to pick up information and it can be integrated in a computer and a data base can be created and the government can data mine that and find that information, it makes the jones rule seem like a silly, one-time response that was in front of the court but it didn't capture the bigger picture. so by a katz moment, i presume you mean one where the court concludes a prior doctrine. we're not going to be able to rely on trespass doctrine alone that draws arbitrary distinctions. we need to move into some more free-form balancing. i don't know what that next moment would look like. i'm sure david can tell me what he thinks it can look like. but i do think that it is really a difficult thing for the court to expect this little corner of the constitution to keep up with
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these truly, you know, life-changing, technological developments that are altering the way people interact in very fundamental ways. maybe they can protect corners of it. maybe they can protect the home. but to expected that they're going to be able to come up with all purpose dock trintrines tha strike the balance right between security and liberty, very tall agenda. >> yeah, i think that the question of license plate readers is a really great example to focus on. it's a fairly new technology. it's gone into widespread use and, yet, most people are not particularly aware of this. in part, the nature of surveillance is not aware when you're being surveilled. pictures are being taken and most people are unaware of it. we started to see ledge slative changes.
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having some sort of limits, i think what we need is much more intention. so what is actually happening out there. this is something that we should be much more focused on, in part, just because we don't have a good sense of what is happening.
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what we had in the '890s is very different than what we have told. the defining principle is not what you have to hide. it's that you have some rights and privacy. in that regard, the question is what can a cell phone have? i think the most important parts has been riley. riley envisioned that a cell phone is more than a cell phone. one of those interesting points was one of those cell phones was an old, not-so-smart phone. maybe that's a government rule.
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but the fact is that what people have on cell phones or tablets, tablets are everything. they have photos. they have political views. them financial data. they have health data. so the kind of information that you have on a small, electronic device can be very significant. that's why i see riley as a very important case. the court actually said that these cell phones, and we now have really different both quantitatively and qualitatively. and i think that was according. i do agree that jones is kind of a quaint situation chlts now we have small cars and tesla and everything.
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do you need a warrant for that? or are you disclosing it because you're driving arnold. the computer in your car and computers to come in your car are going to be smarter and smarter and it will be very easy to track the data. at what point does the quantitative tracking in that data become somewhat where you have an invasion of privacy. so i think you have to really look at the reality. and i do think now that if you ask people about privacy, etch though some people may put things on facebook, that the american public does not say we don't have a right to privacy. and then the other point i would just adhere is we can't forget anonimty. that's always been an important part of, you know, first amendment and privacy law: the
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right to remain anonymous. we do have a construct in our civil liberties where privacy does have a placement we're now just getting pushed further and further as to what privacy have we given up. there's one last area that i'd like to push on, and that is the international end. we're seeing more loosely affiliated groups and somebody who stood up from the national intelligence council and raised a question about how we have these networks that are flatter, less hire article kal back there, the work with increasingly global interactions.
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where are we with regard to fourth amendment once we move beyond u.s. borders. and actually, i'd like to leave with you judge, in a word, cotter lt. >> has anybody here ever gone across an international border? raise your hand. oh, wow, amazing. well, mr. cotterman decided to go across the border from mexico to the united states. and the question was whether they could seize his computer. and bassically data mine is computer without a warrant or any kind of suspicion. of course, the goeft said, in the tradition of the united states, almost anything goes at the border. and that had been pretty much the rule. however, cotterman really didn't think that that's the case. simply because you cross the border doesn't mean that you
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give up all of your constitutional rights. this notion that we recognize there are very serious problems at the border. there's all the kinds of very important things that happen at the border. but most of us would say that the government can automatically search it for you. so in cotterman, we established the principle that certainly you don't need probable cause. but you do need some reasonable suspicion. this is a case where some might say mr. cotterman won the battle but loss the war.
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it doesn't mean every american can be searched with respect to the electronic data. now, this doesn't do or tinker in any way with the court's cases about hiding dope in hub caps and smuggling aliens in your trunk or undocumented individuals. it has nothing to do, really, with those cases. >> judge posner, your thoughts on cotterman?
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>> i think it's perfectly fine having searches of people wanting to cross the border or wanting to fly. it's dangerous. you have potential dangers. peoplcn]'h fly and people who in from across the border, etch the american citizens. and i don't see the exception. as long as the government uses the information in certain ways and not to embarrass you. i don't see the objection. i would use all the surveillance that they want and limit the use of the fruits of the surveillance. i'm happy to be searched in an airport. that's great.
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i want everybody do be searched. >> i'm also happy to be searched on the plane. going back to something that judge posner said at the out set, we all have an interest in being safe on the airplane. we also have an interest in our privacy. so the political process, and many of us fly. and so the political process is likely to sort of get it right in terms of when that balance is struck. when the tsa first started the scan when you go like this, it reportedly revealed you naked. people started objecteding. there was a laut filed.
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they were forced to change the software so that it doesn't show you naked. so that's an example where the political process did a pretty good job of balancing privacy and security. when you're talking about foreign national interests, and especially abroad, the political
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process is almost certain not to strike a balance. can we intrude on someone else's privacy to increase my security? every time, jell. and so i don't think, there the political process is sufficient. the scope is getting close to unlimited. while a saudi citizen is not a citizen of the united states, we're foreigners to them. we're foreigners as to the gchq,
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the uk's counter part. so if we sort of just take for granted, well, privacy protection should only protect people in the united states and not anyone out the u.s., we're opening ourselves up. so i do think that's kind of an emerging area. i certainly think there's great international concern about this. it's going to have to be dealt with in one way or another or we will have lost our privacy regardless of what domestic rules we create, by virtue of not having treaties or other
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kinds of greemt agreements with foreign governments that similarly constrain them. >> so, david, just to push back a little bit, the chief justice says the people, the people refers to citizens. so the people not of the united states do not enjoy the protections of the fourth amendment. so how do you deal with that? how would you approach that from a doctrinal perspective? >> the deciding vote was a
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concurring opinion. the people in the fourth amendment means us, note them. i think we have to make a case-by-case determination whether it would be ano, ma'am mallous and impractical to extend to foreign nationals overseas. and in that particular case, that rationale was what the court relied on for the supreme court. the majority took the view, we're not going to limit it to people. we're going to ask whether it would be anominalous and
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impracticable. i think that's still open to what extent stld be practical to extend to people outside the united states. i don't think that's a forecl e foreclosed under current doctrine. and you raised a very good point. is it -- does the involvement of the citizen require a different kind of treatment when it implicated u.s. citizens. and i think that it's likely that the courts would say that it does.
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but my point is even if the courts say that it does, that's not sufficient. we need to think more globally about the impact of surveillance technologies that any country -- right now, we have the best surveillance, but they're getting more and more attainable. i think we need to be talking to europe and trying to figure it out. >> i think a recuring theme of this panel is we have some idea of what the old rules are. we have some sense that in some areas, there will be a need for new rules. and then the question comes up, what's the new rule?
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it's one thing to say digital is different. i think an interesting example of this is the cotterman case that the judge wrote and was speaking of. if i understand the on going distincti distinction, there's a distinction between a forensic search which requires a reasonable suspicion and a manual search, which is not. the using that pre-loaded search function a manual search? is that a forensic search? what happens if the operating system comes with different software and gets better and better software as part of the search function, does that stay a manual search? does that become a forensic
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search? these lines are actually pretty difficult. it's the challenge the courts, i think, they're gloing to have trying to figure out exactly what these lines are. that's one of the great did i have cullties. how do you apply the fourth amendment to the global internet? what's if default rule? do you assume that somebody does not have fourth amendment rights under the majority opinion? or what happens if you try to follow justice kennedy's sort of more functionble approach.
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these are tough questions to grapple with. they can announce a new rule and say here's the new way the fourth amendment applies. but, in this case, there's no suppression of the evidence in good faith compensatory damages e exception. we're sort of cutting back at the same time. >> thank you. i'd like to open it if anybody has some questions they'd like to ask. >> i would like the take of the panel only recent addition to
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take my part noer in justice in regard to the encryption on smart phones. this is signed into law by george washington and go to court to unlock the phones of people. the judge came out and actually accepted this. i'm not going to read it, but the whole tendency of what you've been saying is why are we using stuff from three centuries ago to address vital issues of today.
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i think the justice department is going to lose confidence. >> okay. some of the other cases that have come up are still relevant? >> yes. i think it's somewhat puzzling to me that the use of the all-writs act became controversial. it's become controversial because people are assuming or there's some suggestion that maybe the phone is using a new operating system in order to get access. just looking at the timing of september 18th and application of the government for the warnt was october 10th.
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this is a fairly routine order. it's just sort of helping us along, not a change your operating system. >> i would just add, if you believe in the constitution, you can't really criticize relying on an act from 1789. >> okay. we have limited time and lots of questions. i will take three questions. if you keep them short, we would really appreciate it. >> i'm a layperson and i only understand half of what you're talking about. it seems to me that we're so
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focused on technology as to be a deciding factor. i don't get why. should we talk more about this third party stuff? you talk about the cell phone. i can dleet my call log. you're making choices. there are some things that you don't have a choice. shouldn't that be the dividing line as to the nature of the technology? >> thank you very much. >> i come at these issues from a law enforcement perspective. and it seems to me that some of the decisions rolled back what law enforcement has been able to do. for example, the jones case resulted in us having to get search warntds in order to put a gps tracking device on it.
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it used to be that we could go to a meet for a drug deal. we've now lost that capability. in the riley case, we lost the ability to get information we could have priestly got. the address book. we used to be able to go through a cell phone and see who that person was communicating with. it seems to me that there could be a more nuanced approach to be able to protect the public and privacy as well. >> great. thanks. if you hold your question, i'll answer those two. so on these two questions, is law enforcement becoming
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increasingly limited? judge posner, would you like to weigh in on either of these questions? >> well, on the second one, i'm shocked of the thought of a company being permitted to manufacture an electronic product that the government would not be able to search. that's shocking to me. >> i would just say that the court did note take away law enforcement's ability to use gps trackers or to search smart phones.
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it just shows that the fourth amendment applies. i don't think -- you say you're a layperson. but, in fact, the choice is what the corporate relied on. when you choose to rely on third party information, you then assume the risk that that party would turn the information over to the government. in some sense, we choose to carry smart phones, we choose to be on the internet, we choose to make phone calls. we could cut ourselves off entirely. should that lead to a loss of
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privacy prerotections? no, i think that supersedes whether you have chosen to live in the modern world. >> the only thing that pops into my mind is it's not comparable. it would be pretty hard to live without a cell phone in the modern world. and my point on riley, i appreciate what you're saying on law enforcement. but short of getting a warant, i think it's quite clear on situations whether there's hex gent circumstances, there's potential riszing of druxz of certain evidence. there's a risk of some kind of bodily injury to someone at home. there's still the exigent circumstances. so they need to decide that they can search without a warant.
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there is a range of options. and riley doesn't cut off the other range of options. >> if the government knows that a phone is going to lock or the warntd won't be effective, does that create exigent circumstances in the effect that it's lost data, it was flushed down the virtual toilet. that becomes an argument that folks were not thinking about. >> as technology increases, it
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becomes easier to surveil individuals, is there a point in which the individual does not have privacy protection? essentially, the question is should there be privacy protection in crimes. >> you guys are terrific. i'm an informational mod for the coast guard. and what i come across every day in my life is whether or not to disclose certain data bits of information to the public. when we start talking about privacy and privacy rights and interests, i'm always intrigued.
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there is no delete delete. i can go into safeway and they'll print out coupons that reflect my needs because everybody knows everything about me now. and i don't go on facebook. i do have a page, but anyway really, that's my question. there is no delete delete. it eet it's all in the cloud now. >> they say here's some books you might like and you do. they know more about you than you know at that point. any comments on this from the panelists and judge posner, as
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well, if you'd like to comment. >> legislation can put the genie back in the bottle. they can say this data can be created but it can only be disclosed in certain circumstances. people put so much stuff on facebook. but what do we mean by that? is it the public facebook? at the same time, there's a lot of other information. current laws regulate a lot of it. we have long standing rules to at least recognize the privacy harms and try to limit those privacy harms.
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i don't think we could kind of say it's all over. there's no time like the present when it comes to regulating these privacy issues. these are issues we're having exposure to and we know what the privacy violations can be. we can step in and impose limits. imposing a court order requirement, whether it's specific in articulate facts and a search warntd. this is how we traditionally strike the balance and i think there's no reason we can't do that same thing in a legislative context. >> i agree. it's up to us. the technology is advanced. the technology is decreasing the costs.
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. >> it doesn't mean we should just give up. we need to maintain how to live in the 21st century. and i think we can do that. frankly, what troubles me the most with this information, not only of these digital advances, not only radedically reduces th cost, but one of the things that the government was doing things that really deserved and warranted national debate. we didn't know what the government was doing in our name. we couldn't have that. we couldn't have democratic deliberation over propriety of that conduct until somebody broke the law and disclosed the existence of a program to us. that seems deeply disturbing. not from a privacy standpoint, but from a democracy stand point. >> i think it's interesting to think about the government as taking two approaches on
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privacy. in one part of the government, the f.d.c. and other agencies are saying that privacy should be protected, we should be playing down on facebook and some of the others n terms of privacy protection. other parts of the government are saying we don't need any, we don't need any privacy. so we're going to take this data that you have. i do think that our own government is really marching down almost two parallel paths that don't seem to be intersecting really well. and my only last point is that they probably just created the title for some new law or viewer and say can you put the genie back in the bottle, et cetera. >> so just addressing the question of whether the idea behind protection and privacy is to protect criminal activity, i don't really think that anyone thinks that. i think that to the extent that the government can use surveillance techniques to prevent or pros cute criminal
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5:activit activity, that should be a good thing. it's difficult to strike a balance. you really wouldn't want to live in a country where conducting on the internet anonymously from abroad or whatever so that you, yourself, were exposed. you would then feel violated.
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i think we see pendulums swinging on this. sometimes they may swing too far in either direction. i don't know if that's the perspective we're in now. people are coming across the border, there does need to be some mechanism for the government to protect against terrorists and child pornographers and the others that have carte blanche to do that because they're carrying a cell phone. you can't just throw them all out the window.
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>> well, for one thing, there's no evidence that people have less privacy than they did, you know, 50 years ago. if you live in a small town, you don't have privacy. the more urbanization and the more population, the more people lose themselves. also, you have an arms race here between surveillance and encryption. it's not obvious who's going to win the arms race. it may turn out that because of encryption technology, there may be too much excitemented about this, you know.
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people becoming totally naked to the world. so maybe the concerns are overstated about the loss of privacy. >> all right. the question put to this panel was taking acount of new and emerging technologies. what fourth amendment doctrines, principles and policies ought to guide us for the future. i hope you will join me in thanking all of our panelists for investing the subject so well. [ applause
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[ applause ] as alluded to earl i didn't recall, he was a criminal. and i think that reflects part of our challenge. one of the cases you didn't hear about today was university of pittsburgh bomb threats case. which we know usa versus adam busby. i think it's important to hear about this case. i'm growing to try to keep the lens of the body of our work as a reference point to try and tie together what you heard today. because much of what we dealt with in the practical real 2i of hachbdling these cases was addressed in various ways by many of the speakers over the last eight hours. but the bomb threat case happened right after we had had a mass shooting at our principle psychiatric hospital in pittsburgh, which was affiliated with the university of miss burg. and we had over 100 bomb threats
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that were causing great terror at our flag ship university. in pittsburgh, we have some of the best resources in the country. earlier today u for a brief period of time, now with nsd. he was formally of western pennsylvania and he was the prosecutor.
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that's kind of the beginning of the story. cserp, which is partnership with dhs, i still felt that we were going way out on a limb, but we had no choice. we had a shoothing with fatalities and less than a week later, a series of threats with the university and the chancellor was in the position of determining whether or not he evacuated upon these cyber-based threats. there was pretty much no question that that was exactly what the threatener warranted him to do.
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without going through all the details, when it involved a trip to ireland by me because we had a pittsburgh president of the steelers, ambassador of ireland at that time to implore him to make sure that the guard over there understood how important this was, we were able to identify an individual, adam stuart busby who has been charged, and we are doing everything we can do to extradite him to bring him to pittsburgh. he has since done an open interview and cofessed that he is the one who did this. i think this was a huge achievement that all of that was going on since the same time that i began as u.s. attorney in 20 10e.
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why does this matter? we need to take as first principles that cyber intrusions affect real people. our entire approach rez nates with me. in each one of the cases that i tell you about, and, of course, you have the whole spindale of cyber cases. we have one of the largest cases involving cyber media. we have over a million dollars in theft with a couple who were using social security numbers at walmart with 900 victims. we're doing this every day. you never hear about it.
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the attention to the fact that we embrace the challenge of having to deal with the security issues and the privacy issues. that responsibility of western pennsylvania falls on my shoulders. and, like most u.s. attorneys, we can accept and relish that challenge. and all of the conversation about where the legislation and the law will go, will never take that responsi responseblety responsibility out of the u.s. attorney's office. it's a choice to give up one and not the other. but we cannot have privacy without security. we have to deal with the threat as it is. when nicole talks about how slow
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the government is to move in, be at one of my meetings every monday we can't just accept to do this in a linear fashion. this is a dynamic challenge. and as i said for the f.b.i. directors times two and to the leadership and the department of justice. if this matters as much as we say it does, we have to rejekt all convention. we have to let the limits of the imagination preside. you need to appreciate how significant this really is.
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notwithstanding the jab earlier today, pittsburgh is the center of the universe, if you did not know that. we were the home of the american industrial revolution. andrew carneggie started steel there. john rockfeller started oil there. if you go back and read the book titan, you can get a quick refresher off of this. the polio vaccine was discovered in pittsburgh. much of oregon transplant technology happened there. we have through westinghouse, three quarters of a new collar technolo technology i haven't begun to talk about the steelers, the pie
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rats and the penguins. this was the story that was moving me in pits fwurg. as a resident of pittsburgh, i directly as we have responded to the challenges as we changed to a industrial community and what a factor cyber intrusion. . . it's about people in brati iic people who might lose their job who's might face economic
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distress because whether you're talking about capturing the research development our companies make which is when we have ip space sponsored espionage. or folks who are most vulnerable among us seniors and children who either have their retirement stolen or are skploeted onliexp. this really matter. this really matters. i'm very grateful to partner with all of you. i'm here to assure you that as grave that's threat is over the course of the last four and half years i've been heartened by the great talent and commitment and will of the people who are working on it. and that now includes all of you. thank you very much for attending today. look forward to working with you
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in the future [ applause ] >> tomorrow on washington journal we'll take a look at the notch jobs report and a histo c historical use of executive orders and president's obama's recent use of authority. and a look at food labelling and the debate over genetically modified foods. washington journal airs every morning at 7:00 eastern on cspan. both chambers be back next week
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to pass -- defense authorization bill and possibly another bill. regarding tax breaks. when the house and senate return they will be taking up legislation dealing with new federal spending and they face a december eleventh deadline to did that. now with a look what the could be the final week of the 113 congress. we're joined by senior congressional reporter in politico. let's talk about ironing out money details for a deal. what's the current status of this legislation and what are the details of this what they are calling a kromnibus bill.
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>> the idea is that it will allow fund for every single federal agency until then except immigration enforcement agencies, that's a concession to republicans who want to fight immigration again at the beginning of next year when they take control of the senate. that is a condition to agree to a larger spending bill. they essentially agreed to a short-term spending bill on the immigration issue. so watch for that going forward. a lot more details will need to be ironed out, like how much money will be needed. they are going through that right now. in addition policy riders, they put 24ethem in the bill, a figh
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that happening behind closed doors. could become very controversial if they're not ironed out right now. and the larger question is does it have the votes to pass the house. if not, then we're looking at short-term continuing resolution for the entire government probably until november. next week is a critical week. >> what are you hearing about house republican leadership efforts to pass the bill. >> they are really relying on democratic votes, looks like they will lose a sizable number against republican who want tougher restrictions on the president's excusive action. they view it critical in stopping the president's immigration move. they don't want to go down that
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path. they're worried about a government shutdown if they could go down that path. as a result john boehner will lose maybe a few dozen conservative republicans come time for a vote and as a result boehner is going to have to rely on democrat votes to get it through that means he's going to need to make concessions to get democrats on board. that will be a big question going forward. how much does boehner move to the left, get that democratic support through the house. those are still being hammered out behind closed doors. >> meanwhile nancy pelosi talks about flexing her muscles, what's her aim. >> her aim is to tip tip fie
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democrat efforts. if we hold out votes than the republicans will move closer and closer in their direction, maybe increase spend on certain programs they favor. the longer they hold out support the more boehner will have to give them, at least that's what they believe. a lot of republican think this is also an effort for short-term resolution for the entire government because some republicans think democrats want to have a big fight over spending at the beginning of the new congress to potentially prompt the shut down, something republicans would get blamed for, not sure we're going down that direction but certainly nancy holding out will help her hand at the end of the day. >> again coming down to the wire, we're talking about just
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the house, what about the senate side what will they need to do to pass through the senate. >> the sen sat a much more difficult institution, and takes much longer to pass bills, and requires more members for unanimous decision chz which is not always easy especially on bills like this. so they need cooperation from conservative republicans to not vote down the spending bill assuming it passes the house next week. that's one big consideration. there's other bills that senate majority reed wants to get done like senate authorization bill, big $550 billion for authorized spending in military programs, they are trying to get that out next week but republicans want more time to debate that.
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as well as a year long extension of expired tax breaks, something that is awaiting senate action. in addition to lots of nomination, dozens and dozens of judgeships as well as executive branch nominations that they want to confirm in their final days in office before mitch mcconnell, the republican leader, controls the senate next week. necessity are t if they don't get republican support could see it slip into the final weeks which is something all senators want to avoid. >> thanks so much for joining us. >> thank you. as we began to receive the
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vinyl to be digitized, to be saved, we began turning over the b-sides of the 45s. first off gospel music was not widely heard in the communities, if it was it would only be the hits but the b-sides would be even less. we discovered how many of the b-sides songs were directly related to the civil rights movement. since there are very few databases and none of them complete on all gospel music we didn't know the sheer number of songs that have very overt songs like "there ain't no segregation in heaven" singing that sort of song out loud was a risk. >> the texas ranger hall of fame set up in


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