Democracy. The question is, are we there yet . It seems like we have reached an Inflection Point about privacy. More people are concerned about the issue. We could see it covered in the press more. A computing factor was the petraeus affair about for which this event is case. It seems like in the case, the fbi did have warrant. The investigation made people realize that emails were not that private. Privacy advocates took advantage of that moment to put forth the concerns they had talked about for years. Two other things that happened over the last year, which have privacy at the Center Agenda one is the decision of the u. S. Supreme court in the jones case where the court found attaching a gps device to a car for tracking movement for months was not like following someone on the public highways. We have seen articles in the press about the eyes in the skies, Surveillance Drones hovering over cities that zoom from 20,000 feet to a sixinch object on the ground. These issues are part of the public debate these days. Back to emails and cell phones we have an Accomplished Panel to discuss these issues. I will introduce him in the order in which they will speak. We have judged danny boggs of the sixth Circuit Court of appeals. He is the author of the decision of the warshak case, which held that government agents violated the defendants Fourth Amendment rights by compelling his Internet Service provider to turn over his email without first about a search warrant based on probable cause. Ken wainstein served as the First Assistant attorney general for National Security and Homeland Security adviser to president georgia w. Bush. The head of the aclus Washington Office laura murphy. David lieber, Privacy Party council for google in washington, will bring us the isp perspective. I will ask the panelists questions and then, we will have an half an hour for questions and answers from the audience. I will start with judge boggs. Tell us about the war shack case and your decision on the e mails the government obtained without a warrant. Let me say that i do not profess the expertise that some of my colleagues do here. This was one of 200 fully argued cases we had that year. We decided the issue was before us and that was it. I will tell you about the case. I will not go further than what was in the case. I will not opine on any other things that may come before me. Mr. Warshack ran a successful business in herbaceuticals, things advertised for male enhancement among things. It had a variety of financial activities with banks and customers that led to a 112 count indictment of bank fraud, mail fraud, money laundering, and other things. We had a 110page opinion, of which one dozen pages h have to do with this issue. The government obtained his e mails under various statutory bases emails that have to do with activities within the company. Under the statute, of probable, it was not necessary. The first attack on this was it violated the Fourth Amendment under doctrine that did he have a reasonable expectation of privacy in the contents of the emails. Contents was a good bit of the analysis. I authored the opinions. The three judges agreed. It went through past analogies. The contents of letters are secure in the sense you have a reasonable expectation of privacy. Telephone call, the content have a reasonable expectation of privacy, though the government may get a record of fact the call was maid how long it lasted. A courier who carries a message, the government may be able to watch the courier, but it cannot get the contents. We decided that it was not a stretch to say that similarly, the contents of emails were protected. The actual language in the opinion was given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. Email requires strong protection under the Fourth Amendment. Otherwise, the Fourth Amendment would prove an ineffective guardian of private communication and its central purpose. In our discussion of this case, we said, we relied on the analogy to a letter or to a phone call. That remains controversial. Even though the isp can access the emails, we analogized hotel guests, for examples, have a reasonable expectation of privacy in their rooms even though the maids enter the rooms to replace towels and tidy. There may be a difference between the governments right and your right against a private person. If a maid, in tidying the room, finds a dead body or a meth lab, doctrine would say that the maid can report what is found to the police. The police could not barge in, in most cases. The issues on the table Going Forward have to do a lot with traditional doctrine as it would apply to the recipient of e mails. Normally, the recipient of letters can do whatever the recipient wishes. Is that the same with email . That was not before us. We left many other questions that we did not have to opine on in that case. We did not go any further. Things will come out later on. Those who are looking for doctrine, the Supreme Court has before it now a case that seems different, which is about a dogsmith on your porch. That may Say Something about what the Supreme Court thinks about what we would say as formalist a doctrine rather a broader view. In the dogsmith case, a policeman can go on your porch without violating your privacy. If marijuana smells are coming out of your house, a dog can smell that. You do not have a reasonable expectation in privacy of what is coming outside the house. The other side says it is not what people usually think. The dog is an enhanced device. We should take a broader and less formalistic view. I am not getting any view on how that will come out. You may want to watch that clues on for how the Supreme Court is thinking about the Fourth Amendment in novel context. Thank you, judge. Ken, tell us a little about where the government is coming from with this issue. Thanks very much. I am going to take the government position on this, even though i am not in government anymore. I spent time in the National Security arena in government looking at this, especially after 9 11. I would pivot off of the analogy you had about Civil Liberties and environmental erosion. You have to be concerned that as we are focusing on threats and crime and the prevention of crimes and National Security threats that we do not compromise our Civil Liberties. There is a difference between environmental erosion and our protections of privacy. In environmental erosion, it is hard to perceive on how there may be of benefit to that erosion. It may not be offset by another benefit. In privacy protections, the protections often come at the expense of effectiveness of Law Enforcement and National Security operations. What we have seen since 9 11, this is an ongoing process, a constant calibration of investigating tool. The revision of those authorities as new technologies, online, we have seen that over the decades. That process has been pronounced since 9 11. 9 11 woke us up to the need to take a look at the tools we use to make sure they are up with the times. The patriot act come out six weeks after 9 11. It strengthened the tools we had to being them more along the lines of todays technology. We saw that with the f. I. S. A amendments act that came out in 2008 where we try to get electronic surveillance statutes for National Security operations to bring up to the times with email and modern communication. That is the issue we face today. We have a 1980s statute. Does that work with todays reality . It is outdated. Should Congress Take a meat cleaver or scalpel to it . And how much of change we make to make sure we are protecting the stored email communications, which is the critical piece of the statute. That is the question of whether the statute allows the government to get stored e mails that are over 180 days old and get them with something short of a search warrant. They can get a court order showing the information is relevant or use a subpoena without a courts involvement. They can use a court order or a subpoena. That does not work under the Fourth Amendment. We could have the legal debates. We need to think about the reallife implications of what a new standard that you have to use. You have to probable cause to get a warrant every time the government wants to get stored emails what those implications be. That would be serious. One would say, if you are going to get a court order any way to get access to those communications, you have to show those communications are relevant to an ongoing investigation. What is the difference between that and showing possible cause that there is criminal activity and making that demonstration to the judge . There is a difference. There are situations where the government needs to look at those emails and will not have probable cause but it will be critical to build the case or predication, which would allowed more serious steps later for to which you would need to get probable cause for a search warrant. There are agencies that do not have search warrant authority, like the sec and ftc. They would no longer be able to go and get emails. You have implications that we need to think through before making drastic changes to legislation. There has been debate. Senator leahy has been in front keying this up for debate. The government has been testifying making its case. It has not been resistant to change. It is recognizing that this is an old statute and technology has changed and we need to change with times. The one message i have be careful and make sure we make changes in a calibrated way. The ability to get stored e mails in the National Security is a vital tool. We have to make sure that you do not make the process overly difficult by requiring everything to stop, get probable cause, and go to a judge first. Thank you, ken. Talk about the thirdparty doctrine. It is the idea that is email the same as regular mail . Isps access our emails. This is used for advertising purposes to target advertising to particular users. Does the fact thats happening somehow make email different from regular mail . What is the difference between a private party accessing our e mail and a private party accessing our email . Go back to something that ken said about the comparison to environmental degradation and there is no comparison when it comes to being able to observe the damage. There is a great deal of damage going on because of the third party doctrine. People still operate in this country with the belief that their communications are private. Whether they get through the internet or whether they go through the mail, people believe that. Why . The Fourth Amendment says, the right of the people to be secure in their persons, houses, papers, and effect against unreasonable searches and seizures shall not be violated and no warrant issued but upon probable cause supported by oath or affirmation and describing the place to be searched and the persons or things to be seized. What is happening now is that the government can surreptitiously look at your e mail without a warrant, without believing you are engaged in criminal activity, and suck up that information. We do not know how it is stored, whether it will be destroyed, with whom it is shared. This is personal information not only intellectual property, Health Records, deepest, darkest secrets. Even if you ask the American People to come to city hall on the day and say, the government wants to have a printout out of all the websites you visited, and please print out for the last six months what the websites are, they would be deeply offended. Whether or not it is legitimate in the eyes of Law Enforcement, is not the question. It is whether or not people have a reasonable expectation of privacy in their communications. It is time to revisit the thirdparty doctrine. That developed before the World Wide Web is what it is and before Cloud Computing. There was a time when we got our emails, downloaded them from servers, and they ceased to be on servers. Now, email is stored indefinitely. When the government was to take a vacuum cleaner and suck up your email history beyond 180 days, that is a very invasive search. It goes against the spirit of the Fourth Amendment. It cries out for review by congress in update updating the Electronic Communications privacy act. Judge boggs hit it right in his decision in warshack. When you look at the facts in that case and how many documents were seized, it was an amazing amount of personal information and business information. One of the concerns i have about Law Enforcement is not that they are unable to get the information they need in a timely fashion. How often do you hear about judges refusing to sign search warrants . It does not happen that often especially in National Security. What concerns me is the effectiveness of Law Enforcement when they scoop up so much information about individuals and they increase the haystack. If you are trying to find the needle or the terrorist, you have Government People combing through volumes of your information. How is that a focused search . How is that the best use of taxpayer resources . We are seeing that the government is gathering information about chat rooms involving arab muslims and south asians. We are seeing the department of Homeland Security are targeting people. Where is the information going . What is being done with it . It is very different than if a private entity wants to use that information. The government has the power to punish you. The government has the power to make determinations about your loyalty. The government has the power to leak. Look at the petraeus affair and how the kellies lives were destroyed because of government leaks of what they thought were private emails and what Law Enforcement purpose was served by that . We put our lives at risk when the government can surreptitiously monitor all of our communications on the internet. There are not safeguards and there are not wellunderstood protocols. The thirdparty doctrine needs to be revisited. Law enforcement has the tolls it needs at its disposal. They had the tools before the patriot act. They do not need new tools. Their tools need to be circumscribed to balance the civil liberty issues at stake and restore the reasonable expectation of privacy to the way people communicate, which is more by email than by snail mail. Law enforcement has the tools it needs but they dont need new tools and their tools need to be circumscribed to balance the Civil Liberties interests at stake and restore the reasonable expectation of privacy to the way people communicate now which is more by email than by snail mail. Let me pick up on something you touched on which is the issue of secrecy and the secrecy surrounding government requests through isps and the isp efforts in promoting transparency. Perhaps you could talk about that. Thank you for having me here today. Transparency is something that is really important to us. We think the current debate is lacking good data about the volume and nature of government requests which we think would help inform the broader debate about updating. Theres no question that government has legitimate interests in this data and legitimate needs. We also think our users in the broader public could benefit from good data about the nature and types of requests we receive. The types of data that we respond that we return in response and how we push back is important. There is a percentage of times where we will not give any date in response to a government request. We released the first iteration of our transparency report in 2010. Since then, we have seen a significant increase in the number of government requests that we received from governmental entities in the united states. Since 2010, we have seen a 136 increase in requests. With the latest iteration of our transparency report, about five days after we released the report, we published a detailed user faq so our users in the broader public and get a better understanding about our posture when we receive government requests. We try to provide more insight into the types of data that we might give to governmental entities depending on the types of protocols they are using. In response to a sabena would be be different than a court order or search warrant. We tried to provide data about the types of requests we are receives from governmental entities in the u. S. The second half of 2012, 68 of the requests we received weexpa from governmental entities were subpoenas. These are generally request for useridentified information. They were issued through subpoenas so they tend to be the easiest types of data to get that because there tends to be no judicial review. On the opposite side, 22 of the requests we receive from governmental entities in 2012 or search warrants and those due involved judicial review under probable cause. The remaining 10 were from court orders which are commonly referred to as 2703d. That includes other forms of legal processes that were more difficult to categorize as they are included in that 10 in number. Were certainly not the only ones talk