You either can encrypt over cant encrypt. And thats going to be a tough one. The executive branch is making a strong stand on that, that that would be terribly detrimental to National Security and Law Enforcement, if theres a large category of content thats beyond the reach of government content surveillance. And so that ones a little tougher. Because of its binary nature. Also because industry has really, at least some large part of the activity, the Communications Technology industry has dug in pretty hard on it. So thats going to be an interesting debate to see and thats a highstakes debate. Great, thank you for that. And thank you for flagging a series of issues in congress that some of your colleagues have mentioned as well which involve access to data by Law Enforcement and private companies, to questions of encryption and well delve into all of that. But that makes it 31 against the constitutionality of the 24 7 drone surveillance and just to sum up the discussion that ive heard. David said that the Supreme Court in the katz case said, the question is, is there an expectation of privacy in public . Greg said that the court in jones said that we do have some expectation of privacy in public. Just alito and four other justices said that public surveillance that reveals a great deal of information about us for a month violates our expectations of privacy. Jones emphasized theres an important element of trespass in jones where the gps was on the car and Justice Scalia made that the foundation of his opinion. And maybe four or five justices might think 24 7 drone surveillance crosses a line. Although youre worried about the slippery slope and there was an interesting exchange, where a month is too long, but a day is okay. So whats the goldilocks magic line . So that leads us back to ahmed in dissent. Why do you think 24 7 drone surveillance would be okay, in light of the incredibly purr swaseive arguments that your colleagues made on the other side . Well, i think in jones, the concurring opinion that greg referred to, alitos concurrence, had more to do with aggregation, than it did with individual collection. And so, again, to what extent is there a drone will iffing yfoll around and thats getting stored somewhere. Or is it just following you around and surveilling you in case you pull out a knife, it will zap you with an electroshock . I dont know. In terms of, i just dont see i forget, actually, david, what your argument was. I just dont see the current doctrine not allowing something that is its not the 24 7 that that that takes the Government Action past constitutional limitations. In fact, you could probably say the drone is like a cop waiting outside of your house, et cetera. And i limited my answer to the fourth eaamendment. I think the First Amendment issues would probably be a bigger dealbreaker for the court. I think the idea of having any machine or camera, or surveillance following you around 24 hours a day, will make you selfcensor. In fact, there are studies that show that individuals working in fields like National Security, or even Cyber Security, more recently, journalists that cover National Security issues, are saying that they feel that they cannot they feel chilled in their speech and in their ability to get course information, et cetera. I think a lot of this stuff makes sense in terms of a First Amendment argument, but from the Fourth Amendment perspective, i just dont see privacy in public space actually, you were talking about katz, thats correct. And i dont think that it wouldnt pass the laugh test to say, i feel like i should have a reasonable expectation of privacy outside, unless the information was being aggregated and processed, unless it was definitely being stored, et cetera. I think you need more than just inspection. I see. So, greg, im going to ask you to respond. But your view is if the drone is following you and collecting the information, but its not being broadcast or aggregated, that would be okay. But if the drone is following you, 24 7, and its being broadcast live on the internet, that is a different matter, and that would raise concerns under jones, is that what youre arguing . No, im thinking if its aggregated, that would support the alito concurrence and i could take a ride that way. But i look at that more of a potential use of information, of collected information issue rather than just the collection. And once its been collected, its sitting around and you use it, essentially you process it and have an outcome. I think thats a due process issue. Im trying to understand. The drone follows me around 24 7 and like a reality show, is just being broadcast on the internet, is that aggregation . Does that violate the Fourth Amendment . I think that passes the Fourth Amendment test. I dont think it passes the First Amendment test. I think thats government conduct that chills speech at the end of the day. Greg, your response to this distinction between aggregation and collection . I thought, ahmed, when you were talking about aggregation, you were aggregating the drone data with other data not collected by the drone, is that correct . Yes. Well, aggregating it with itself and with other data. In other words, you can have a buffer that only stores three seconds of information at a time in the drone and to the extent it detects any illegal activity, that puts you in the jacobson world. This is monthlong surveillance broadcast on the internet . For the analysis, im going to think of aggregation as taking the drone data, adding to it other data and then drawing conclusions from it, versus persisten persistence, which is just taking the drone data for days and days. And my view is that persistence alone is going to be enough to trigger the Fourth Amendment protection. And i base that view again on the jones case and the five justices who seem to think that the trespass didnt really matter, so long as there was persistent surveillance, even though the case went down on trespass grounds. I wanted to flag to folks an interesting discussion we had about this at the privacy law scholars conference on june 24th, 2012, just search on this, from jones to drones, how to define the Fourth Amendment. Cant hold back the clever privacy scholars. Okay, this was a good discussion. Now i want to flip the hypothetical, which is not so hypothetical, and david, ask you, what if google did it . And let me say, it wouldnt be google, it would be facebook, so then its fine and you can answer it. Mark zuckerberg decides im going to start a new app, its going to be called open planet, and ill collect all of the current surveillance camera data in the world and broadcast it live on facebook and also encourage people to broadcast live from their phones, allowing, say, ahmed, to follow me 24 7 with his iphone and broadcast that 24 7 on the internet. He would say, check up on your friends and learn cool stuff and whatever. If that could be done, obviously the Fourth Amendment does not apply to google and facebook, even though google and facebook arguably have more power over privacy and free speech than any king, or president , or justice, under current statutory law. And youre telling us about the complicated debates in congress. Could facebook broadcast on its own, private, 24 7 camera feeds that would allow 24 7 tracking of anyone in the world . So i think part of this would depend i cant envision a scenario where a Large Technology company would put a product or service out like this without describing what it was doing and having specific privacy protocols behind it. So i would surmise that if such a product, service, application existed, there would be pretty robust controls around the collection and use of that information, and that at the point those representations were made, there would be legal restrictions on the ability of a company to collect and use that information or to make material changes. Thats more of a function of the Privacy Policy itself than it is with respect to statutory law. But i think there are situations too, where ek pa would be implicated to the extent that information is being disclosed to thirdparties in ways where the original user hasnt consented to that type of disclosure. So i think there are other statutes that would likely come into play here. But, look, there have been lots theres been a lot of discussion about whether, you know, whether there ought to be a baseline privacy law, for example, that governs what companies that arent currently governed by other types of privacy law, whether it be fikra or hipaa, legitimate discussion to have. I do think that its a separate and distinct discussion from the types of debates that were having in washington right now, around government surveillance. And i think its incumbent upon Technology Companies like google and facebook, when we are venturing into New Territories that have new type of privacy implications, that we do give users the control that i think they expect, when theres uncertainty around these types of applications. A thoughtful answer. Not so hypothetical, in some sense. I was at a wonderful legal futures conference that google sponsored in 2007 and andrew mclaughlin, then chief of public policy, said that he expected in a few years, google and facebook would face pressure from the government and from users to advocate public surveillance cameras and broadcast them live. He thought google would choose not to do it. But i want to know, under current law, if facebook chose to do it under current law, would it violate, could someone make the argument that were all voluntarily turning over our location or camera feeds to third parties when we walk down the street and therefore they can broadcast them to the World Without restrictions . You took the words right out of my mouth. I think thats a perfectly legitimate argument. Especially since theres a lot of signs saying, this area covered by cctv. So if you walk down the street, youve accepted the consequences. Im not advocating it as the right result, but i think as a statutory matter, i havent gone through this, the cataloguing of statutes that might relate to this, as it relates to a private party, but as a constitutional matter, if its a nonstate actor and theres a applicable statutory bar, seems like there would be ive described specifically the movements of congress to address precisely this question, and if theyre not afoot, what laws do you think are necessary to prevent Mark Zuckerberg from this invasion of privacy . So i dont think there are bills or statutes that are moving that would address Something Like that. And i think that theres a significant hole in the extent to which consumers have privacy as against corporate collection of information. But i dont see it being plugged in a meaningful way by a baseline privacy statute in the near future. You know, jeff, let me put a twist on your example. Maybe you were going there anyway. So all this data is being collected by a company, and then the government says, hey, that would be pretty useful for our investigations. Hey, we want the realtime feed, or hey, we want to be able to query the database at will. What controls that right now . And really, were in murky land, because i dont think that much does. And i think that as privacy advocates, we need to start thinking along the lines that ahmed is talking about, which is not just what protections are there at a collection stage, because often times when a private company is collecting, they wont be there, but at the government access stage, when the government says, we want to buy it, or the government says, we just want to act just like every other purchaser of information from this database. Thats great. So ahmed, greg points to this danger, in addition to the invasion of privacy of facebook broadcasting this data live, the government could also seize it. In your initial thoughts, you drew this parallel between the fourth and First Amendment. I love that because it was so brand ician. My hero is justice brand ice. Whenever i have a question, i ask, what would wwbd, what would he do . He like you, noted the intersection between Fourth Amendment protections against virtual searches and First Amendment protection for freedom of thought, and he thought it was so important for citizens to be able to develop their faculties and form their opinions in order to be immune from government surveillance. I want you to take up this facebook example, although government can buy the feeds, do you think that the 24 7 facebook broadcasting violates current law and if not, what laws would you propose to con strain it . So, it doesnt violate current law because you consent out of the Fourth Amendment. Youve provided your consent to google sorry facebook. Yeah, google would never do that. To facebook. I think this is what europeans distinguish as Data Protection. I think theres a difference between the idea of invading someones expectation of privacy and in our case, collecting data and i think theres a difference between that and using the data for a variety of purposes and whether the user, the one that gave you the data, actually has control over that. Thats a distinction i make in my head in terms of a doctrinal sdivtion, not a normative distinction. But i find when you separate those two, its easier to have a conversation about this stuff. So youve given your consent. The Company Takes your data. You no longer have a right of privacy, but maybe you ought to have a right to control the data. Or a right for your data to be protected. And maybe the government then could get involved and facilitate that or regulate that. But i think another thing that i think greg mentioned is sort of what these companies can do with their analytics. So google sorry well, google and facebook. Google can parse through and categorize youtube videos and tell you what all youtube videos have somebody with orange pants and raising their hands. Facebook can tell you if somebodys depressed before theyre clinically diagnosable with depression. And so when you think about these things from a Law Enforcement or intelligence perspective, theyre very useful tools. So at what point will, at what point will that be purchased or requested or asked for or compelled . Thats sort of a prophylactic question that i have generally in my line of thinking about social media. David, were positive google would never broadcast these camera feeds, but google, unlike facebook, is subject to a Privacy Protection from europe, and thats the right to be forgotten. I wont hide the ball on this. I just debated the european privacy commissioner and believe that this represents the biggest clash between american notions of free speech and european notions of privacy in the digital age. Why dont you tell us about googles response to the right to be forgotten and other regulatory pressures that its facing from europe to protect privacy . Spoiler alert, we lost that case. Didnt go so well for us in the European Court of justice. I think were pretty laser focused right now in trying to implement that decision in a responsible way. I dont think you know, i dont think it will come as a surprise to anyone to hear that the issues are challenging in terms of trying to figure out when information is, you know, irrelevant, or outdated. In the context of an individuals right to be forgotten, i know thats a term that some europeans take exception to, but its become sort of common in the lex con of this discussion. And i think were this is not this is not theres no analog to what we are doing right now. I think its an uncomfortable undertaking in the sense that theres, i think, from the broader public, theres a Large International company that is making decisions that are effectively going to determine what is available and accessible on the internet and whats not. Its certainly not a position they think we want to be in. I think from a small democratic perspective, its not the right result. That said, i think were trying to figure out how to implement this decision to do it in a responsible way thats reflective not only of the right to Free Expression in europe, but also the right to Free Expression here. There have been controversies that have surfaced over whether the right to be forgotten ought to be extended to dotcom. And its an issue that were continuing to have discussions with the Data Protection authorities, but that we certainly believe theyre a real, sort of philosophical and legal issues around extending the reach of the ruling and an extra territorial way to reach dot dotcom. There are issues where the publishers of websites will receive notice when there are right to be forgotten requests to be processed, or that those who pursue them are successful with, and the extent to which the notices can be specific or whether they can only be general. So can a web master say that what youre seeing here, or can we say, i should say, what you are seeing here in the search results, may not be completely reflective of whats out there, visavis, or i should say, as opposed to saying, when you search on a specific term, and theres been a right to be forgotten request thats been processed. At that point, you say, some search results are not going to appear here. Theres been less controversy with the former example than there is with the latter example. But those are examples of the issue were grappling with. There are serious implications here for the future of Free Expression. I think theres been some suggestion that which hasnt gone very far, but the notion that we ought