Transcripts For CSPAN2 The Communicators 20161206 : vimarsan

Over a trillion dollars of our national debt. Some point we have got to Pay Attention to this and i believe now that opportunity to do so. Thats a good place to leave it on a mark of independence on the market at sebile. We have talked an awful lot about where the conservative party is for these gentlemen up where we can expect from the rnc and they speak on behalf of my colleagues on aei. We are honored to work with you. Great to share resources on ideas. They really go beyond partisanship to the principle of who we are and create a better country and a better world. Please join me in thanking our two guests mark walker and bill flores from the rnc. [applause] [inaudible conversations] host jars and University Law professor subthree. Guess who is trying its darndest but like a lot of this its hard to keep up with technology, and so you know we have different areas of the law, constitutional law statutory law but at the end of the day the ships, the changes, the different ways we communicate, the same things that befuddle your average american has begun to also confuse lawyers and the legal system and the judges and kind of disruptive in newfound ways. Host is it because technology is changing so quickly or because the law is not changing . Guest its a little vote. Law is an ancient tradition. If an agent set of disciplines but at the same time law has also managed to keep up with seismic or tectonic shifts in all sorts of things in society and technology is you know our latest challenge. In so there is always going to be kind of a giveandtake when it comes to rapidly changing things in an Old Institution like the law but again its trying and i think it will all work out in the end but the growing pains are going to be really difficult. Host what is an example today that we are facing . Guest so the fourth amendment. We think about again centuries guaranteed of the constitution is unreasonable searches and seizures shall not occur without a warrant lets say so the question is how does Something Like that apply to cell phones, how does it apply to the email accounts and again its a great measure of how fast things change that the laws just figuring out those two examples cell phones and just about the time those two are not going to be important or daily lives. Theres this builtin delay that the law suffers from and its hard to keep up with the latest shifts. Host this is the communicators and we are speaking with georgetown law professor sub three and also the faculty director for the University Center on privacy and technology. Also joining our conversation is dustin volz of writers who cover cyber and surveillance. Guest thank you for being here professor. How does this issue of knowledge of technology affect governmental prosecutors and lawyers who have do deal with cyber criminals who often you cyber means to pursue criminals . This is thwarting criminal desiccations . Guest i should get a little biographical. Im a Computer Scientist by training and after a great dreaded from law school became a criminal prosecutor at the Justice Department. I was in the intellectual property section and funny because im now im such an old man that this is really a half generation ago where we were just beginning to deal with hackers and viruses and all sorts of emerging challenges on line. At the time and probably more so today he was really a challenge to kind of figure out how to take these very old tools we have and adapt them to something that is new. So it is a constant struggle of education. Lawyers to go to law school and going to government in science and mathematical go to Engineering School or medical school so they are coming at this from a disadvantage in do i need to focus on returning the more . Is that the solution . Guest we could definitely stand to have more techies in law school and eventually in law and policy. Really, the dream is the person who is generally and legitimately welltrained. But its just a simple matter of numbers and we are not going to get there. So one thing ive been thinking a lot about since my post prosecutor days is what can i as a legal educator do to bring a lot of people who start with very little and in the case of law School Nothing to make them at least do no harm but even better to be competent and successful navigating. Guest at georgetown i believe you have a class that helps law students, teaching them coding and talking about these issues. Can you tell us more about this and this is something we should make mandatory at law school or criminal procedure for students to learn criminal cyber law . Guest if we could make it required and we have several courses but let me focus on one. Ive been teaching at the university of colorado before that and at georgetown i had this kind of crazy idea that i could take my programming knowledge and use it to educate lawyers. Again with a heavy emphasis on the people who know very little and it turns out there a lot of people who are in law school because they have made life choices that push them away from technology. So the course we created is called Computer Programming for lawyers and its an intensive three hours a week really, really deep dive into the and bolts of the programming seen through a legal lens. And it has just been a fantastic experience both thinking about what does it mean to teach a lawyer Technical Skills light is that at the same time just understanding and appreciating the pentup demand. The statistical story, we offer this course for the first time in midnovember of last year and you have to understand in law school in november students are doing nothing else but their final exams in with very little fanfare we said you have to register by the start of the semester. By december 18 etiquette was we had 120 students clamoring to get into the class. This was a class that we had set aside 17 seats a quarter. It was just beyond my wildest expectations. In your assessment given the focus on training and education and we have enough to fill this gap worse is getting worse because technology is becoming more pervasive or do you feel the next couple of decades it might see some progress on this . Guest its harder to make productions about where technology will go so we assume we are going to continue on this kind of radical growth rate where fundamental Technology Shifts every five or six years then i think we can keep up. I think that not only is it going to be useful and important to educate lawyers before they become lawyers but i also think we are going to have some advantages generationally and so i have an 11yearold twins. They know about as much programming is my law students do it the end of the quarter and i think they are not unusual story. I think kids like that will grow up to be law students and lawyers. Host professor ohm is important that lawyers need to know programming just as a liability lawyers needs to know about a car . Guest thats a great analogy. Engineering matters a lot in some disciplines. Another example is economics and statistics. A generation in ago there werent many lawyers who understood statistics much less used it in their daily lives. Today if you are a tort liability lawyer, if youre an Agency Lawyer you really have to know how to not only understand Economic Analysis but marshall those tools. Guest what about the Justice Department . Its funny. Their efforts and there have been efforts at the federal government for a long time. I think they are into different categories. The first is similar to what im doing at georgetown so even back in the dark ages we had a small unit. We all tended to be pretty technical and we have a lot of courses. We would do a lot of training. The second thing you see a lot in particularly outside the Justice Department is just the importexport model so we invite Computer Scientists who spent two years at the Government Agency and hopefully while they are there they will build something and they will hire some permanent staff said to be more specific i worked at the federal trade commission for when you recently. They have chief technologist, they have a small unit that really is made up of hybrid lawyer technologist and so both of those higher fishermen i guess would be the metaphor. They both are happening and they are both vitally important. Also a little bit scaling up. Youre always going to have that issue, how do you continue to teach incoming lawyers, establish lawyers who have been around, how can you ever keep in touch with the workforce . Host you also mentioned that the point it did no harm. Has there have been harm done in technology . Guest you know there are lots of stories that people have told about so for example government hacking. This is very much in the news and something ive thought about my research. Now you have government investigators and crimefighters for the first time using tools of the trade that we used to associate with criminals. They do this in large part because encryption makes it difficult to use conventional methods to do surveillance. So heres the challenge. The challenges challenge is to have an fbi agents would say who is chomping at the bit to use some very new and exotic vulnerability exploit, essentially breaking into someones phone. I have no doubt that the f. The eye and these are not lawyers, these are engineers by training. He fbi is teaching that person what they need to know to do their job. What about the prosecutor who is the one that has to go to the judge and explain what they are trying to do . We have some examples where documents have come to life and suggest the prosecutor in that particular case probably didnt go through the training i was talking about a few minutes ago and either willfully or entirely incidentally misrepresent what the technology did and at the end of the day that really is going to have repercussions for civil rights and civil liberties. Host and privacy. Guest and privacy absolutely. Its a little esoteric but if you send out Something Like this which is indistinguishable from a virus and you send it to an anonymous person on line the odds are high that person is not going to be in your jurisdiction so the thing you send out in virginia may go to california, it may go to alaska or eastern europe. It may be that the judge has signed a warrant knowing full well they dont have an authority to sign the warrant because they werent clear about the fact that this thing was about to split the boundaries of their jurisdiction. So yes there is a rules violation that we should worry about but theres also an underlying privacy story that we should worry about. Maybe its too much power for a particular prosecutor or judge but without Understanding Technology it wont be in service until much later. Guest does this knowledge gap or confusion among prosecutors and judges, are we seeing evidence that this is having a real policy implication on this law or our decisions being made by the fbi . I think in this hamburg in case trying to get into an encrypted phone a lot of technical minded people say this effort by the fbi is a lack of understanding of how encryption works. The lawyers in the case not understand it. Is that something you are worried about . Guest i want to be clear this will allow me to be somewhat controversial about apple and the fbi in particular. But ive been describing so far in this conversation has been the main, the masses of prosecutors and how difficult it is to teach them technology. There are elite pockets within the federal government where they hire technical people and give them the resources they need and they train them up to be quite sophisticated but i think the unit i was in the Justice Department ccip probably fits within that category. Guest what about apple and the fbi . Guest apple in the fbi differ. It probably reflected the failure of many Different Things but im not sure its a story of lack of technical sophistication if you look at what the fbi asked apple to do it actually was a pretty sophisticated ask. If you look at the way they responded to objections from the encryption community, sure they disagree but i dont think its accurate to say they fundamentally misunderstood what they were telling them. I chalk it up more to problems and one in which. Host professor was a lot clear . Guest one of the problems with the case is the law was old so you have a very old very broad law at the Justice Department. Again quite aggressively was trying to use a buried in his set of circumstances. Thats the reason why i think the judge quite reasonably could have said you are asking too much. What im trying to push back on is the critique that the fbi just doesnt understand. And i think we all regret that we didnt get to see this play out in the courts and it was fascinating to see what the judge did it at the end of the day the judge had the consultation it needed and it was left with the difficult legal question. Host have any of these cases played out in court . Guest thereve been numerous cases where the court has had to delve into it. Im not even talking about patent law where im certainly not an expert or they have to do it routinely but if we can find yourself in surveillance and privacy and speech, i can think back in my own lifetime as a lawyer in 2001 in the landmark case called the aclu which is about attempts to the availability to get on the world wide web. It was so funny that the Supreme Court in binding precedent set these web sites and everything is important of course they have these things called hyperlinks and hyperlinks tend to be blue. I remember thinking that is a great example of knowing enough to hurt you, to be dangerous. I think it was probably technically accurate but completely superfluous. Fastforward to 2014 and a case called riley v. California which asked the questions when the Police Arrest two on the side of the road are they then allowed to open up your phone the same way they can rifle through your pockets . Here you have chief Justice Roberts writing a very sophisticated very technically savvy opinion that i think gets most of the technology exactly right. So look at how far the institution, talk about slowmoving institutions, has come in 13 years. Even the Supreme Court i think has it within them to keep up with the times. It might just take years. Host what about the congress . Guest congress as you know, hit or miss. Some members of congress are really sophisticated. Some, less so. One thing that i have seen commonplace is obvious. A lot of it depends on is a member of congress committed to hiring the right staff in a zerosum world of staff and are they willing to allocate a person or a half a person, someone who really understands technology. Im sure i havent met all of the staffers who are serious technologists. I think ive met most of them and there arent enough. There should be more. I dont think our elected representatives cant can be that they really should hire them. Guest how much is this enduring problem finding enough talent in the Justice Department or congress for annette technologists . People can work in Silicon Valley make hundreds of thousands of dollars and give them a few years to go into service. Is that a fundamental problem when you talk about these issues . Guest i think it is. I think almost everyone in every workplace has faced this dilemma. All you want is a web site in some reason you will have to pay that person the same salary you paid the institution. The Government Faces challenges probably even more so than the restrictions on the budget salary. I think the antidote is to appeal to the idealism of the techies. We have been talking so far mostly about techies and tech. Auroras question is also interesting. How can we get techies interested in law and policy . You know i have had more deep conversations about law with scientists than i have had deep conversations about Computer Science lawyers. A lot of Computer Scientists just love the law, love policy. They probably think they are better at it than they really are but i wonder if thats something we can use to appeal to people to help the government out . Guest president obama has been called by some the first cyber president. We now have a president elect donald trump who has more of an adversarial approach to Silicon Valley calling for boycotts of apple during the San Bernardino case, saying goes things on the internet. Do you think this will be more of attention for the coming administration trying to get this talent to come and serve in washington . Guest from my Vantage Point i certainly have not talked to a lot of people in the administration. From my Vantage Point its mostly interests. It never felt like hostility. If someone has the secret list of priorities for the new administration might guess this technology is not going to be on the first. What does that mean . That means there will be probably some inattention paid not only to the core question we been talking about, which is will the administration be sophisticated and to allergy but even the one fundamental question what world are policy be . What will their surveillance policy be . I think they simply dont know because they dont know. So its a waiting game to predict something the administration can do. I dont think you can. The other thing to say is you are right we are think in a pinnacle with the Obama Administration on the narrow question of integration with technology and technologists. No matter who would have been president present at think we would have had a dropoff. Im just wondering if its going to be on the downside . Guest i think institution is a matter of law so i think continuing to keep some of the positions even populated with people who are more like mitre to your politics is a great idea so obama has not only a cio put a cto achieve sciences, office and science of technology is more robust and vibrant particular and digital issues than ever. It will be great if the new Administration Says im going to keep those trucks or someplace and im going to find people who can populate them. The same goes for the agencies. The agencies are at their peak in terms of sophistication. Host professor ohm this disconnect between technology and law has it affected the federal trade Medication Agency . Guest those two agency understands and their dna they have to get good at this and i have some experience with those agencies. I think they really have made strides, probably not as quickly as i would like. They have made strides in recent years. Both of them now have established chief technologist and going back years and years those two offices have been populated by a think without exception of amazing people, sophisticated people. And so as long as they continue on that path they will be fine. They will be good at keeping a steady state. The problem is keeping up with the resources. A Perfect World we would double or triple the lessons we give for these purposes and i dont think thats likely to happen with either of those two agencies particularly the incoming industries in. Host have we had a period like this in the history before were to know what your industry got way ahead of law . Guest sure. The rise of antitrust laws is a direct result of the antibarons that regulation of airlines, the history of law in many senses of the history of trying to respond to the last technological shift. One thing i talk a lot about is the internet and digital technology. Its faster. I think everyone would agree with that. The question is, is that it difference in greed or time . Guest are we seeing some sharp turns that means it wont be like the last times we have had to encounter this. Guest the jury is out. Most times i wake up and i feel there is something distinctively different about whats going on to the other days i wake up and at more of a historical view and i think other people have had that problem before and this too shall pass. Guest you mention surveillance policy earlier. Im curious as this problem made worse by the fact that we are seeing surveillance and some ice expand and the opportunity to collect data expands. This week on december 1 rule 41 is going to affect which will allow the government to ask judges to issue warrants for computers in any jurisdiction. This is seen by some as enormous expansion of surveillance powers. Is this all given the fact that there is confusion in the knowledge gap against some government lawyers and is that we get more likely we might see abuses and we might see innocent people victimized by the way the government carries this out . For the most part we have been talking about surveillance that happens on the criminal side. The knowledge gap within talking about at the core of our conversation is so much worse on the National Security side. Here you have a presumption of secrecy, a presumption of classification and you have a rigid structures in the Intelligence Community that give a lot of deference to people on the ground. There are probably lots of reasons for everything i just described is what it means his very few people have been impact on what to do with the latest technological advance. And so yes i worry a lot about that. I think its very easy for a few people, wellintentioned people, to advance away to school from the government we are going to really take advantage of the latest innovations and we are going to really bend the law along the way to allow us to do that and given the inherent lack of sunlight it might take the rest of us 10 years to figure out whats going on. Its kind of the story about a lot of the things we have learned about the nsa over the last 10 years and in many ways i shudder a little bit to think about how surveillance law might expand partly because the techies rule the roost. The lawyers really dont ask a lot of the right questions. Yes i guess what youre saying its not always intent that the lawyers are giving up often is. Theres a lack of understanding about how safe the system might be. Guess who we have had numerous filings from the lawyers who have gone to the secret fisa court and said he know that thing we told you about last year turns out we were wrong. We have misunderstood what her to knowledge as were telling us that you have an example of a real failure to communicate that has ended up resulting in surveillance programs that are much more massive than they should have been with the law. Host what can congress do policywise in your view to make it more smooth . Guest there is the electronic privacy act which relates to a lot of what we been talking about. Here you have a long period of 1986 which still is a foundational law that the fbi can read your email. That is in dire need of updating and there have been bills in several consecutive congresses that would make sensible changes. Congress could get better at science too. Congress could create new