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 . Im 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 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 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 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 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 dont see us on facebook or tumblr doesnt mean that we dont understand how it functions. I found that particularly insightful. Finally, its 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 countrys great legal voices for Civil Liberties today. These were cases on flag burning. 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 were 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 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 were 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, im 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 dont start with doctrine. Thats backward looking right . You know thats all ancient history. I think the way to approach these questions is try to figure out, you know, what is a sensible response and then is it blocked by, you know, controlling person . Especially when youre dealing with such a rapidly changing area. I think looking at the case is unhelpful. So i start with first, you dont really get anything out of the Fourth Amendment. It says that searches and seize sures should be reasonable. Its important. And the general war was forbidden. There is nothing to suggest that warrants are ever required. So the Fourth Amendment doesnt really do anything for you. I want to look at a problem and see what the solution is. I dont think theres really should be a large role for courts in dealing with the problem of surveillance at the largest area here. And the reason i dont 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 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 dont see why the courts have to get significantly involved. And its its related to the point that Justice Alito made in the jones case that especially when you have rapidly changing technology, theres a lot to be said for leaving it to the legislature to deal with. Because the judges dont, the level of technological technological knowledge among judges is very, very low. There are exceptions like judge mckeown but its 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 dont know anything about technology. So i dont think they should be taking an active role. And really thats, thats 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, theres some forms of privacy which are entirely proper. Trying to keep your passwords and your Social Security number and all that secret, thats 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 dont know why that kind of, that kind of privacy, i dont object to its being, to having some protection for it but i dont see how it can outweigh National Security concerns, for example, very serious criminal activity. I think we glamorize privacy and are not realistic about what its 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 youre talking about National Security. The world is in an extremely turbulent state, very dangerous. And i think National Security has transcended significance, and it shouldnt be, the surveillance activities of the National Security agency and the fbi and so on, i dont think they should be curtailed in the name of privacy. If the nsa wants to back you go all the trillions of bits of information that are flowing through the electronic worldwide network, i think thats fine. They can vacuum it. They can search it and they can use it for any National Security purpose. What i dont think they should be permitted to do is turn over information to accidentally collect, vacuuming minor criminal activity. I dont think they should be allowed to turn it over to Law Enforcement. You know, a minute to murder or something, theft, thats 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. 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 dont 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 id 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 its interesting if you go back, i dont talk about the case is made with the same as my colleagues, but i dont think he means that in his heart. But if you go back to olmsted, its 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, its going to get challenged. I dont 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 youll end up back in the courts and we cant 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 look at some of these. Heres one of the problems we have, and i know from my life as an intellectualproperty 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. Thats why we deal by analogy but its not always perfect. They are one of the difficulties we have is we are forever dealing in small items. Its beepers today, its 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 have a construct that is not very illuminating, of course the Fourth Amendment, we dont throw out the Fourth Amendment. We just cant divide much from it. We cant define a lot from it other than we look at reasonable expectations of privacy and we havent 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 wouldnt 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 youre 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. A lot of times they wish they hadnt. They only wish that later. So i dont think weve 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 theyre so objective and subjective expectations of privacy. My bottom line is overlooked to congress but i know its going to end up back in the courts. I do think its incumbent upon lawyers to educate the judges on a casebycase basis. We may be humanities majors. We may ask questions as they did in the Supreme Court. Perhaps michael, like whats 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 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 youre deciding these cases. Michael, can turn to you on this since youve 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 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 its going to turn up on my radar screen five or six years from now after everything is moved on and its 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 its 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 werent having to go into somebodys house to find out what was going on 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 wouldve contemplated. The court in kyllo reached back and said were 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 youre able to follow people are going doing and see where theyre driving around and you can build a mosaic of their life. Is why its useful for Law Enforcement. It wasnt the attachment of low magnetic device somewhere on the bottom of the car where the fbi actually didnt want me to know what is preparing for jones on the theory that wasnt 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 Alitos 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 didnt 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 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 cant 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 wasnt saying should be done. Viewing the problem from todays perspective, really see whats going on, not just be him didnt buy the doctrine. Riley also elicits one of the limitations on the courts ability to do th