Education leaders gather to discuss some of the issues facing education today, from Early Childhood education to post secondary and beyond. Live coverage begins at two 30 cspan. P. M. Eastern on cspan. State dealsry of with the unexpected. No one expected the arab spring until it was upon us. We have to learn to be agile and ready for the unexpected, while we try to build a world that we want, especially for our children and now for my future grandchild, but we have got to be aware of the fact that all these other countries, all these billions of people am a they are making hard choices every single day. We have to be ready for that. Thatabsolutely convinced we have to continue to lead the world into the kind of future that we want. We cant sit on the sidelines, we cant retreat, were going to have set tax and disappointments, but over time, our story has become the dominant story. It represents the hopes and aspirations of people everywhere. That is what i want americans to understand. The main reason that i wrote this book i know theres a big debate going on about our havein the world and we still some consequence is to deal with from prior decisions and the like, but we cant abdicate our responsibility. How wedefine it and executed will be up for public debate. America matters to the world and the world matters to america for our prosperity and a security and our democracy. Spoke with usnton about her decisionmaking process and some of the decisions she has had to make as secretary of state. The full interview is shown on cspan tv. On wednesday, the Supreme Court unanimously decided that in most circumstances, police have to get a warrant before searching the cell phone of a suspect who has been arrested. The court heard two related cases. Here is the oral argument of one of them, riley versus california, which was held in april. This is about an hour. Is always been the case of an occasional arrested not give Police Officers authority to search through the private tapers of somebodys house. That protection should not evaporate more than 200 years after the founding because we have the Technological Development of smart phones. Just a test the principal for why the police can search and seize some objects. Consider the gun. An arrest he has a gun on his person and the police take the gun. It is part of the reason for that seizure to obtain evidence of the crime, or is it just for the safety of the opera sir and the safety of the community . What this court said in robinson is that the reason for supporting the authority are the two chanel factors. Evidence to prevent his distraction and for Public Safety. For instance, with the gun. . O they take fingerprints the gun is in the Police Station where the arrestees being booked. Could they copy the serial number . For this ema shelter chamber . How many bullets left in the chamber . If the proposition and the principal, then, is that some objects that are obtained from the arrestee can be examined in case,to build the states is that at least a beginning premise that we can accept in your case, although obviously there are problems of the extent and intrusiveness of the search that are in your case, but not in the gun hypothetical. Isdust is kennedy, the court never described that is one of the things. If you want to think about this case the lady you considered the automobile search in cant. Premise,hat werent a it would only be that, a beginning. This court says that any incident to arrest has not satisfied the Fourth Amendments general reasonableness. It is the best statement in support of the principal that i have suggested. You might say that is is limited and we are back where we started. There are important things to understand if you want to think it is genetically different from what we have here. Before we do that, have you been accurate in what you said about robinson and about the courts cases . In weeks, which was quoted in thenson, the court said right to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. Is that historically inaccurate . Do you want us to repudiate that . No, your honor. You quoted. Fruits and instrumentalities of the crime are always something that can be seized from the person. There was that Historical Authority to take foods and evidence im sorry, fruits and instrumentality. Which did say . Even if we are in a world where police can see some evidence and use it for the prosecution, there are still very profound problems with searching a smartphone without a warrant. Even under the robinson rule, whencourt has recognized it comes to blood draws or a strip search, there are limits even to the robinson rule. Smartphones raise other problems. A person with a billfold with photos that were important to him in the billfold. He had that at the time of arrest. Do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him . No. That is the rule of robinson. And he physical item on an arrestee can be seized and inspect it and then used as evidence. We draw a line. What is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of a cell phone . The difference is that Digital Information versus physical items. Physical items can pose a safety threat and have distraction possibilities that arent present with digital evidence. What is more, once you get into the digital world, you have the concern how does these hardcopy photos . They dont present a threat to anybody. I dont see that there is much of a difference between the government the government argues there is a greater risk of this guys of distraction of digital evidence then there is for photos. I dont quite understand how that applies to that situation. Undertake this once a time. I take the theory of robinson, that any physical item because it could contain a razor blade or pan, needs to be inspected to be sure. Hoc nature of ad arrest, the police dont have to distinguish physical items. Lets stick with Justice Alitos hypothetical. To find a Business Card of something which shows a car rental service. And it turned out over . Theyre not looking for a 10 or explosive, they found a card. Can they do that . Can, but ithey really dont want to apply can they turn the card over . I think what you have in robinson is a categorical rule that obvious these casebycase determinations. You can make an argument that if i needed to and it were a diary case of billfold case, but i think the court wisely decided under robinson that we need a categorical rule that is easily administrator both in the field. Digital information, even the notion of flipping through photos and a smartphone, implicates vast amounts of information, not just the photos themselves, but the gps locational data that is linked in with. , all kinds of other information that is intrinsically entwined in smartphones. Including information that is specifically designed to be made out like. What about Something Like facebook or a twitter account . Any privacy interest in the facebook account is at least diminished because the point is you want these things to be public and seen widely. I guess my question would be, you source is absent dont have an air of privacy about them . I think it would be extraordinarily difficult and i will tell you why. Much of the information is even a facebook account is a limited universe of people who have access to it. It is certainly not private in the sense that many of the other applications are. I think it is fair to say you have a sliding scale and there is some stuff on the phone that might be posted on the internet. The difficulty with that case if you want to address it in a future case, would be intertwined nature of information on a phone. Looking at those photos will be linked to the contacts inside ,he phone, the gps information all of this information is intertwined. You would have a difficult administer billet he problem if you wanted to create a rule like that. The government might want to deal with the problem differently by calling it information in the cloud. We submit that would further compound the difficulty of applying a rule in this circumstance. We have to decide whether all information that may be available any smartphone can be examined by police when the owner of the phone is arrested, or can we just focus on the particular evidence that was admitted in your clients trial . The way you phrase the question is a first cut at this. It is looking at particular pieces of evidence which are photos and videos. We dont think you can write an opinion that would distinguish those from anything else on a smartphone. The state argument here is that those are not fundamentally different from other things that people would carry around. You think you could obtain a warrant in this case . In all likelihood, yes. Well, then, the evidence that is seasonable under a warrant is , and Justice Alito points out the fact that some of legal. Idence is if theres is a limitation with reference to the way the police behaved, Justice Alito points out it is limited to just this evidence. Let me say a couple of important things about the requirements. Let me has said say couple of things about the warrant requirement. It goes to the fact that it is searchable under Fourth Amendment standards. With a warrant, Justice Kennedy. If you pose a neutral observer between the citizen and the police officer, perhaps more importantly it does two very big things. It can trigger the Fourth Amendment particularity requirements, so that the magistrate the magistrate can say. The prosecution introduced photos and videos, but that is we look at a whole lot of stuff on the phone, and that is what caught his eye. How would it work for the magistrate . , he just told Justice Kennedy, that a war could be obtained. A warrant for what . Over the police have to show phone,ey have seized the they have secured it. And now they want to search it. We give an example of a warrant in our reply brief. There are many more available on the web from states that are already that already require warrants. They say the police officer. Estifies i suspected this fellow was in a gang. I believe gang members keep shouldnt things on their phone. This is the kind of crime we are investigating and therefore these files are likely to obtain evidence. The warrants say with particularity, these are the things you can look out and these are things that you cant. Is hard to figure out what you can and cant see. It is easy for the magistrate . But impossible for an arresting officer . Magistrate at for some remove them for an officer under the stresses in the field. Agree it is not going to be perfect. Lets look at what happens. The point you make elsewhere in your brief and argument is that the cell phone, the smartphone has everything. If you are arresting somebody on the grounds of sisish and that he is a gang member and have evidence to support that, what part of the smartphone is not likely to have heard meant evidence . Your pictures and videos and similar toess it other issues that have been raised. Other know what a magistrate is supposed to put in the warrant. I would say is banking app. The banking app would say deposit 10,000 in his account, and that would coincide with a particular drug deal. This could be made on an app by app basis. With the government says is, let the officer looked, and then have a backend hearing where you suppress everything he was not supposed to look at once you apply particularity requirements. Leon kicks in and you dont have to have all these hearings. The kind have to have of suppression here. One important thing that goes into a warrant, which might have been glossed over too quickly in the brief. Is not just what can be looked at, is how can. Retention of information raises extraordinary concerns. They are keeping this information in databases, evergrowing databases of every cell phone that they have ever what if you have a device that does not have the broad information a smartphone has, setonly in very limited data that tells you how many steps you take. What if they want to check and see if he is walked for miles . Which iss whole life, a great part of your objection. Is that something they can look at . I think probably not. This is the categorical rule were its weeks in the hypotheticals we have talked about. There is another rule for Digital Information. Obviously, i dont have to win that argument today, but i think that is how you would approach that question. With the fit bit, smartphone tells you the information you are told about. Modern smartphones work the inside of peoples houses. We have cameras. They monitor the insides of peoples bodies. What if the phone in this case was an oldfashioned flip phone. As a capacity to take pictures with a much more limited memory, would that still be the case . That would be a part of your conversation in the next part, perhaps. Simply say, digital evidence , areon modern cell phones different than physical items. I dont think it is worth going back in time to the most rudimentary device for having that argument. Discat about a compact with information saved on that . I think that might be the same kind of case that you have now. Remember, the phone in this case had a removable and memory card as many still do. By the way, were going to talk about destruction of evidence. That is one answer to the problem. We have given lots of arguments in the brief that explain why as tovernments arguments why things dont stand up. , you didnt finish the answer you were describing the difference between the downloading a police into databases that they keep forever. What happens with materials that are returned pursuant to a search warrant . They be precluded from doing that. That the ordinary rule is that the police often seal evidence in the real world. It is a if it is a physical item, it may have to be returned to the owner of it, but if it is something that can be copied and remain in police files, they can use it indefinitely into the future. You have real problems when you apply thats typical rule to Digital Information, because now , from what i had to stand, the ernment itself acknowledges that it is keeping an evergrowing federal database at least some of the information seized from smartphones. Im sorry, can you do the same thing . The beauty of a search warrant is it can delineate retention rules. Allowssay here is who is ed to look at it and who is not. Dont remember a prosecutor coming to me with that kind of delineation. We just have new and different concerns that have arisen in the past. Would there be accidents he is that would allow police to look at cell phones . If so, what would those exigencies be . Absolutely. They would be times at the scene where exigencies would allow it. The two officers safety argument the other side makes about hypothetical bomb or a confederate ambush, this court artie recognized in the chadwick. The concern about remote wiping we think, and as the experts think thatwed whatever arises, very odd world, yes. There it. When there is a bomb, you dont know there is a bomb until you look in the phone. Way to kills on the the officer and released their confederate. You dont know until you look in the phone. An can that possibly be exiting circumstance . Dealing with a locked briefcase. Surrounding facts and circumstances might indicate iat there is a hypothetical think it gives a classic textbook example of how exigent exigent circumstances exit gensler and his can be applied here. To be anng extraordinarily rare circumstance. ,f you had that circumstance you would not need to get a warrant. The lawyer has written and wants to hold the briefcase, and you cite page seven of your hand, 1916learned case. Much in that. We did not find cases involving briefcases and documents. Judge friendly also mentions the diary situation. Important you are going to try to formulate some standard which illuminates which eliminates the extent of the search. Fair, buts not quite if we rule for the government and it is not an exigent circumstance, if there is some standard were we to draw the which would still result in a judgment in your favor . Maybe that is not quite a fair question. Youre not arguing. Certainly, in my case, you have an exploratory search were not even the state has contended the amount of information that that is equivalent to what somebody could have carried around in the old days. If the phone rings, can the police answer it . Obviously, this court is not address them. All the cases we have found over the police artie have a wart in d and there held unquestionably, the police s could look at certainly you could look at the caller id coming through because i would be in plain view. There are coupled important aspects to the diary question that i want to draw out. The reason i think that you dont find i read pages and look for them is that people hardly ever carry a diary outside the home. It was kept in a private drawer in the bedroom or wherever it might be kept. I have an usual circumstance where somebody did, you might have a hard case. World. The opposite modern reality of smartphones is that is an indispensable item for everyday life. You cant leave the house without it and consider yourself to be responsible and safe and a world where the police might say we can get andight direly diary apply to the world where everybody has everything with ll the time including the criminals were more dangerous, more sophisticated and more loose the cell phones. That is the other side of this. The Fourth Amendment has a balance built in. Not saying you cant look at Digital Information, we are they seize iten they can freeze it and go get a warrant. That thegnificant information was not protected with a password . It does not expect the expectation it does not affect the expectation of privacy . If this is not even research, that might be an argument they might deploy. I think that they also agree that password protection does not matter. It certainly does matter under their argument. Their position is, if we seized a Corporate Executive smartphone is locked and protected, if we can get that information to our lab, we dont have to ask for a warrant. Yourm wondering if position is weakened by the fact that the individual did not seek the greater protection of a password. People to lock their homes are the briefcases. The smartphone, protected on the person, is