[01:29.850 --> 01:31.770]  We have a great talk up next.
[01:32.450 --> 01:44.910]  This is from a traveling band of comedians, and they're here to talk all about the WikiLeaks, the whistleblowers, and the war on the First Amendment.
[01:46.750 --> 01:47.770]  Well, thanks.
[01:48.830 --> 01:50.430]  My name is Ben Wizner.
[01:50.710 --> 02:08.810]  I am the director of the ACLU's Speech, Privacy, and Technology Project, and I'm very delighted to be joined tonight on this panel by my colleague Catherine Crump, who is a staff attorney in that project, and by John Reinstein, the longtime legal director of the ACLU of Massachusetts.
[02:08.810 --> 02:18.870]  I will start with some general remarks about leaks, and national security leaks, and the Obama administration's pursuit of leakers.
[02:19.590 --> 02:25.310]  John will then speak a little bit about the grand jury process, and in particular, the WikiLeaks criminal grand jury.
[02:25.950 --> 02:46.750]  And Catherine will talk about some of the ACLU's work representing people who have been harassed through having their laptops searched at airports, through having their social media accounts subpoenaed in connection with the Obama administration's very aggressive pursuit of whistleblowers.
[02:47.430 --> 02:59.650]  But I would be remiss if I didn't acknowledge before we start that we have in the front row one of the bravest national security whistleblowers, who many of you heard from earlier before, Bill Binney, who was at the NSA.
[02:59.910 --> 03:01.510]  So I just want to acknowledge him before we start.
[03:09.040 --> 03:16.160]  So, as I said, I'm going to start with some general background, and Catherine and John will add substance to it.
[03:16.360 --> 03:19.540]  So, you get the red meat first, and then you eat your vegetables second.
[03:20.800 --> 03:29.140]  You know, any conversation about this topic, about national security whistleblowers, has to begin with what I think is the most scandalous fact of all.
[03:29.140 --> 03:41.000]  And that is, there has been in this country not a single prosecution for torture or illegal spying, notwithstanding the terrible crimes that were committed here over the last decade.
[03:41.260 --> 03:47.800]  And yet there have been several prosecutions for leaking about torture and illegal spying.
[03:48.400 --> 03:51.760]  Were that the only bad fact, it would be bad enough.
[03:51.760 --> 04:01.980]  But the reality is that even most leaks about torture and illegal spying and drone strikes and cyber attacks are not prosecuted either.
[04:02.560 --> 04:08.880]  And that's because the vast majority of those leaks come from the administration that is in power.
[04:09.180 --> 04:13.400]  And most leaks are not intended to expose government wrongdoing.
[04:13.740 --> 04:20.300]  They are instead government efforts to shape and manipulate the public debate about these critical issues.
[04:20.300 --> 04:42.400]  So even as the Obama administration has brought an unprecedented number of leak prosecutions, it has simultaneously provided to favorite reporters, like Bob Woodward, vast amounts of classified and so-called national defense information for the production of news reports and books that would put the administration in a better light.
[04:42.800 --> 04:46.140]  So we have the misconduct itself that is not prosecuted.
[04:46.140 --> 04:50.300]  We have the sanctioned leaks about the misconduct that are not prosecuted.
[04:50.640 --> 04:59.340]  And the only people who are prosecuted are those who leak information without the consent or direction of the administration in power.
[05:00.080 --> 05:11.240]  The truth is, until quite relatively recently in our history, even those unsanctioned leaks were not prosecuted or very, very rarely prosecuted.
[05:11.240 --> 05:25.100]  If you were to listen only to the frequent and growing demands by members of Congress that leakers be ferreted out and punished, you might think that the laws surrounding leaks to the press were firmly established.
[05:25.580 --> 05:26.840]  That really is not so.
[05:27.180 --> 05:30.280]  The truth is that those laws are remarkably unsettled.
[05:31.000 --> 05:33.680]  And the reach of those laws is remarkably unsettled.
[05:33.680 --> 05:42.600]  The most frequently involved law in this context is something called the Espionage Act, which was enacted in the World War I era.
[05:43.080 --> 05:53.080]  There is no question that that law applies to traditional espionage, that is, people selling secrets or providing information to a foreign power.
[05:53.400 --> 06:07.040]  What I think is less known is that for nearly 70 years after the Espionage Act was enacted, not a single person was convicted for leaking government secrets to the press.
[06:08.360 --> 06:20.960]  In fact, in 1979, the CIA's General Counsel testified to Congress that he could not even say for certain whether leaks to the press were prohibited by law.
[06:21.360 --> 06:40.160]  He testified that if the Espionage made it a crime to disclose these secrets to the press, then in his words, we have had in this country for the last 60 years an absolutely unprecedented crime wave, because surely there have been thousands upon thousands of unauthorized disclosures of classified information,
[06:40.440 --> 06:44.800]  all criminal acts in the Justice Department's view, and yet none has ever been prosecuted.
[06:45.280 --> 06:46.920]  This was in 1979.
[06:47.400 --> 06:51.900]  It would be hard to imagine a CIA lawyer saying anything like that today.
[06:52.780 --> 07:07.440]  The text of the Espionage Act itself certainly appears to permit prosecution of leakers, but some kind of consensus had developed in those 70 years that it would not be used in that manner.
[07:07.900 --> 07:16.620]  And in fact, until President Obama took office, there had been a total of three prosecutions of leakers in the history of the United States.
[07:16.620 --> 07:22.120]  One was Daniel Ellsberg, and as you all know, that one fell apart because of the Nixon administration's law breaking.
[07:22.760 --> 07:26.720]  Another was someone named Samuel Morrison who leaked a photo to Jane's Defense Weekly.
[07:26.980 --> 07:28.740]  He was pardoned by President Clinton.
[07:28.880 --> 07:30.380]  He served only a short prison sentence.
[07:30.660 --> 07:35.900]  And a third was someone who served a year in prison for leaking documents from the DEA.
[07:36.260 --> 07:40.480]  That was the whole history of prosecution of leakers until President Obama took office.
[07:41.400 --> 07:49.800]  Already, the Obama administration has indicted six individuals in connection with leaks to the press, double the entire history before.
[07:50.340 --> 07:55.660]  And perhaps in the Q&A afterwards, we can all speculate as to why that may be.
[07:55.800 --> 07:58.580]  And let me just point out, as you probably know, there is a microphone in the front.
[07:59.000 --> 08:03.340]  We'll leave plenty of time for questions, and I hope that you will have some for us.
[08:04.820 --> 08:19.500]  So the Obama administration has made very clear in its words and actions that it does not distinguish between spies who sell secrets to foreign agents and patriotic whistleblowers who leak secrets about misconduct to the press.
[08:19.940 --> 08:37.660]  In fact, in a recent filing in one case involving the prosecution of a former CIA agent, the Department of Justice took the remarkable position that leaks to the press, and now I'm quoting their brief, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money.
[08:38.040 --> 08:56.660]  And the government reasoned that, unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant, a man named Jeffrey Sterling, elected to disclose the classified information publicly through the mass media.
[08:56.880 --> 09:06.140]  Thus, every foreign adversary stood to benefit from the defendant's unauthorized disclosure of classified information, thus posing an even greater threat to society.
[09:06.140 --> 09:14.700]  Of course, not mentioned here as the other people who received this information were the American people who had been in the dark about very serious government misconduct.
[09:15.360 --> 09:25.560]  So, the old consensus that I alluded to, that leaks to the press would generally not be prosecuted as espionage, appears now to have collapsed entirely.
[09:26.320 --> 09:38.400]  Now, a second, much deeper and more hallowed consensus, and that is that publishers of government secrets will not be prosecuted, is showing some signs of strain.
[09:39.080 --> 09:51.800]  At least since the Pentagon Papers case, the working consensus between reporters and the government has been that the First Amendment would not permit a publisher to be prosecuted for the publication of government secrets.
[09:52.820 --> 10:00.200]  But the Obama Administration has been quite clear that it is investigating WikiLeaks with an eye towards possible criminal prosecution.
[10:01.240 --> 10:03.760]  And John will talk a little bit about that in a moment.
[10:04.580 --> 10:08.820]  Let me just say here that such a prosecution would be utterly unprecedented in our history.
[10:08.820 --> 10:21.420]  It's hard to overstate how much reporting, and not just investigative reporting, relies on and includes classified information, especially reporting on matters of national security, foreign policy, and war and peace.
[10:21.900 --> 10:26.040]  Now, the government has never attempted to prosecute a publisher of leaked documents.
[10:26.520 --> 10:40.000]  In fact, it has never successfully prosecuted anyone under the Espionage Act or related statutes who was neither an employee of the government with privileged access to that information, or an agent of a foreign government that is a spy.
[10:40.600 --> 10:43.580]  There was one attempt to do that, but that prosecution collapsed.
[10:43.800 --> 10:45.360]  And it's not hard to understand why.
[10:46.180 --> 10:52.680]  The government would be, or perhaps will be, if they carry through with this investigation.
[10:53.260 --> 11:06.540]  They would be hard pressed to articulate a theory of criminal liability that would hold WikiLeaks liable, but would exempt the Guardian newspaper or the New York Times, publishers that have published exactly the same material.
[11:06.880 --> 11:14.760]  And I would say that, arguably, the New York Times should perhaps be in even greater jeopardy than WikiLeaks, because the New York Times is a U.S.
[11:14.840 --> 11:15.060]  entity.
[11:15.060 --> 11:24.800]  If we think about applying reciprocity, would we want to allow China or Iran or some other country to prosecute the New York Times for publishing their secrets?
[11:26.860 --> 11:35.440]  Prosecution of WikiLeaks or Julian Assange would be a major threat to investigative journalism, but not a major threat to leaks.
[11:35.780 --> 11:45.020]  And now let me acknowledge here, before passing this on to my colleagues, that there are very difficult legal questions involved in this issue.
[11:45.440 --> 11:49.800]  There are more than three million Americans now who hold some kind of security clearance.
[11:50.240 --> 12:02.120]  The courts and the government will never tolerate a rule that allows each one of those people to decide for himself which secrets are worth keeping and which ones are not in general.
[12:02.680 --> 12:14.180]  On the other hand, allowing the national security state itself to shape and manipulate the public debate, by selectively leaking and prosecuting, is a threat to democratic government.
[12:14.560 --> 12:26.500]  It can't be that any executive branch official with a classification stamp can unilaterally cover up critical information about war and peace and government scandal.
[12:26.780 --> 12:30.300]  So what is the proper balance between these competing values?
[12:30.720 --> 12:45.680]  Let me close my portion of this presentation with a few principles that I believe reflect the requirements of the First Amendment, but at a minimum ought to guide the wise exercise of the government's prosecutorial discretion in this area.
[12:46.040 --> 12:56.120]  The first principle is that publishers of leaked information, and here I would absolutely and emphatically include WikiWeaks, should never be prosecuted for the publication of truthful information.
[12:56.900 --> 13:12.240]  Particularly because so much of the media's reporting is based on authorized leaks, subjecting the press to prosecution for the reporting of unauthorized leaks, would guarantee that the only story the government wants to tell, sorry, that only the story that the government wants to tell,
[13:12.420 --> 13:14.460]  is available and part of the public discourse.
[13:14.920 --> 13:15.960]  Second principle.
[13:17.500 --> 13:27.700]  Whistleblowers who disclose information relating to the government's waste, fraud, corruption, or illegal activities, should not be prosecuted.
[13:27.700 --> 13:37.400]  The leaker's interest in disclosing that information, and more importantly, the public's interest in knowing that information, categorically outweighs the government's interest in secrecy.
[13:38.220 --> 13:39.240]  Third principle.
[13:39.920 --> 13:51.900]  Disclosure of other government secrets should be prosecuted only on a showing that the harm to national security, and real harm, not speculative harm, outweighs the value to public discourse of the information that's disclosed.
[13:52.340 --> 14:00.700]  Because of so much widespread over-classification, the fact that information is classified is insufficient on its own to prove that disclosure would be harmful.
[14:01.900 --> 14:11.440]  And finally, and this goes back to the point that I started with, leakers who are subjected to any kind of prosecution should be able to defend themselves on the grounds of selective enforcement.
[14:12.160 --> 14:26.700]  To the extent that the government chooses to prosecute only disfavored leaks, while systematically failing to prosecute many hundreds of leaks that advance the government's agenda, the government is unconstitutionally enforcing the law to discriminate against dissenting viewpoints.
[14:27.180 --> 14:33.720]  I'm going to stop here and turn it over to John and Catherine to, as I said, add a little bit more substance, and then we'll be happy to take your questions.
[14:34.080 --> 14:34.520]  Yeah, sure.
[14:34.980 --> 14:35.560]  That's great.
[14:45.880 --> 14:47.060]  And how do I turn it on?
[14:47.260 --> 14:47.840]  He'll do it.
[14:47.940 --> 14:48.700]  Yeah, it's on now.
[14:48.880 --> 14:49.100]  Okay.
[14:49.340 --> 14:52.220]  Yeah, and if you want it off, you put your screen on screen, just ask.
[14:53.000 --> 14:54.020]  It doesn't show anything.
[14:57.740 --> 15:06.480]  Ben's presentation, which I can simply say I agree, was cast, as you will note, deeply in the subjunctive.
[15:08.280 --> 15:10.120]  Should, would, ought to.
[15:10.940 --> 15:12.260]  But that's not where we are.
[15:12.620 --> 15:27.000]  What we are, we are in a position where there are specific guarantees of the First Amendment, but their application has really yet to be tested and articulated by the courts, particularly in this situation.
[15:27.700 --> 15:41.580]  And it's important to remember that all of this comes forward under circumstances where the federal criminal justice system is heavily stacked in favor of the government.
[15:42.740 --> 15:56.120]  Heavily, heavily stacked in terms of both the resources that are available to the government to investigate and to prosecute, and the constraints that are placed on the judiciary in controlling what prosecutors do.
[15:56.880 --> 16:05.540]  We've talked, we began by talking about the First Amendment, which Ben has talked about, and Catherine is going to talk a little bit about the Fourth Amendment.
[16:07.120 --> 16:29.980]  But there are other amendments which contain what was thought to be an important safeguard, and that's the Fifth Amendment, the very first sentence of the Fifth Amendment that says that no person shall be held to answer for a capital or otherwise infamous crime unless it has been,
[16:30.060 --> 16:33.020]  there has been a presentment or indictment by the grand jury.
[16:33.020 --> 16:40.220]  The Fifth Amendment's guarantee of grand jury was originally intended.
[16:40.440 --> 16:43.660]  It has deep roots going back to the Magna Carta.
[16:43.940 --> 16:50.160]  It was intended to be a restriction on the government's power to prosecute and imprison.
[16:50.820 --> 16:57.400]  It has today, which is widely acknowledged, become something quite different.
[16:57.400 --> 17:10.980]  It is an extraordinary and extensive power of the government with very little, I'm sorry to say, judicial oversight.
[17:11.220 --> 17:19.240]  You do have the right to be indicted by the grand jury, but there is really, there's not much more to it.
[17:19.280 --> 17:35.380]  Let me tell you a little bit for, I mean, I suspect there are some of you in the room who know what a grand jury is, how it works and what it does, but I'm, if you'll indulge me for a moment, I'm going to provide a little background for the, for the rest of the folks in the room.
[17:36.320 --> 17:52.560]  A grand jury is a body which is someone much like a, what's called a petty jury, which is the one which hears trial cases, but it consists of more people, and it consists of some between 16 and 23 people, their subpoena, but they don't sit for a single case.
[17:52.560 --> 17:58.140]  They come in and they sit for 18 months, which can be extended for longer.
[17:59.040 --> 18:02.640]  And it is a, it's a secret process.
[18:02.960 --> 18:04.260]  It's not open to the public.
[18:05.240 --> 18:17.100]  And the only people who are permitted in the room are the grand jurors themselves, the stenographer, the witness, and the prosecuting attorney.
[18:18.480 --> 18:19.920]  No other people are available.
[18:20.140 --> 18:23.120]  Now, to be sure, this is a constitutional right.
[18:23.360 --> 18:26.320]  But the rights that, that, that we have,
[18:30.080 --> 18:31.180]  well, I'll call it.
[18:31.280 --> 18:33.920]  I mean, the, the, the, let me say one other thing about the grand jury.
[18:34.060 --> 18:35.740]  The grand jury may sit in a particular place.
[18:36.040 --> 18:43.180]  So for example, what we, what we have come to call the, the WikiLeaks grand jury is sitting in the Northern District of Virginia.
[18:44.480 --> 18:46.220]  Not by accident was brought there.
[18:46.340 --> 18:51.280]  That's a court, which is, which has dealt with a number of, of national security cases.
[18:51.460 --> 18:55.560]  It is geographically, it's the, the location of the Pentagon.
[18:56.360 --> 19:07.220]  And it's within the jurisdiction of the United States Court of Appeals for the, for the Fourth Circuit, which is, which is, frequently described as a, as a very conservative judicial circuit.
[19:07.380 --> 19:11.700]  So that it's, it's a setup which is, which is in many respects favorable to the government.
[19:12.020 --> 19:16.300]  But, you know, you do, it's not that we are, we are without rights.
[19:17.100 --> 19:20.920]  You have the right to appear for the grand jury without a lawyer.
[19:22.060 --> 19:24.520]  Indeed, you can't bring a lawyer into the grand jury.
[19:24.520 --> 19:30.920]  Uh, uh, if you were called, summoned to appear as subpoenaed to be here before a grand jury, you go by yourself.
[19:31.260 --> 19:33.740]  You may consult with counsel beforehand.
[19:34.180 --> 19:39.580]  You are permitted to walk out of the room and talk to counsel.
[19:39.920 --> 19:43.720]  Uh, but you're not there and you don't have someone to speak for you.
[19:43.860 --> 19:46.680]  Your role in the grand jury is to answer questions.
[19:46.860 --> 19:51.920]  Uh, it has been described as where the grand jury has the right to every person's evidence.
[19:52.140 --> 19:54.040]  Uh, but there's nothing on the other side.
[19:54.040 --> 19:56.260]  I said, wait a second, I don't want to give you that evidence.
[19:56.720 --> 20:06.900]  Uh, you have the right to have your records, including electronic records, subpoenaed, uh, and, and, uh, subpoenaed and brought before the grand jury.
[20:07.320 --> 20:14.820]  Uh, you have the right, uh, as, as the public, not to know what's happening in the grand jury.
[20:15.100 --> 20:19.980]  Uh, the press is not admitted, uh, and there are limits on what can be disclosed.
[20:20.160 --> 20:23.260]  Those in the room are not free to talk about what happens.
[20:24.960 --> 20:29.620]  Um, uh, you have the right not to have that disclosed to anyone else.
[20:29.740 --> 20:47.680]  Of course, unless the government wishes to disclose it to another government agency, to a law enforcement agency, and if it involves, uh, foreign intelligence, to disclose it to a, uh, substantial array of, of other government agencies, including immigration,
[20:47.920 --> 20:54.640]  so long as it's, uh, in some way related to, uh, what their law enforcement interests are.
[20:54.820 --> 21:09.120]  Uh, you have, uh, you have the right to be questioned, uh, on a much broader scale than you would be in a, in a, in a trial.
[21:09.120 --> 21:21.340]  Uh, the, uh, grand jury, uh, can base its investigation, its issuance of subpoenas, it's calling people before it, uh, on the basis of, of mere suspicion.
[21:21.760 --> 21:24.260]  Uh, that it's interested in looking at something.
[21:24.380 --> 21:28.440]  Indeed, that it's, that it's interested in proving that the law has not been violated.
[21:28.440 --> 21:39.160]  Uh, that it's, that its discretion is quite broad and the questions are not limited in any way, uh, by, uh, the rules of evidence, uh, the prosecutor can ask and whatever.
[21:39.420 --> 21:44.280]  But indeed, there is no exclusionary rule, uh, in the, in the grand jury.
[21:44.460 --> 21:54.860]  So that if the government learns information which it has obtained as a result of an unlawful search, uh, it can nevertheless ask questions based on that.
[21:54.860 --> 22:00.980]  Uh, and all that it, all that it, then that doesn't come up later.
[22:01.100 --> 22:09.720]  The only exception to that is a narrow statutory exclusion for certain, uh, electronic surveillance, uh, which the government has done illegally.
[22:09.720 --> 22:12.080]  And even then, very difficult to prove that.
[22:12.320 --> 22:17.560]  So that's, that's basically, uh, the context.
[22:17.560 --> 22:25.480]  Um, now, that brings us to, uh, what, what I'll call the WikiLeaks grand jury.
[22:25.580 --> 22:28.640]  The government will not concede that there even is a grand jury.
[22:29.380 --> 22:37.500]  Uh, but we have a, a, a number of people, uh, have been, uh, oh dear.
[22:39.680 --> 22:46.160]  Um, the notion that I should be talking to anybody in this room, uh, with a computer in front of me.
[22:47.200 --> 22:48.640]  Is, is just wrong.
[22:48.860 --> 22:49.880]  Well, I'm not sure how to score.
[22:49.900 --> 22:50.260]  Down arrow.
[22:50.560 --> 22:51.220]  This one?
[22:52.060 --> 22:52.800]  Down arrow.
[22:53.020 --> 22:53.600]  Down arrow.
[22:55.060 --> 22:55.380]  Yeah.
[22:55.600 --> 22:56.340]  Here we go.
[22:56.680 --> 23:02.360]  So this is, this is the subpoena that just says you have to show up at the grand jury.
[23:02.360 --> 23:07.700]  Uh, it can be issued to anyone, anywhere in the country as long within the territorial jurisdiction of the United States.
[23:07.840 --> 23:20.420]  And indeed, there are treaties which permit the government to reach out and seek the assistance of, uh, of other nations with whom it has, uh, bilateral agreements to assist in, uh, law enforcement.
[23:21.080 --> 23:22.580]  Uh, so, oh, here we go.
[23:22.920 --> 23:36.680]  So, and the one thing that is now the practice and, and is generally required is that the, uh, is that the government is required to tell you when you get a subpoena, generally what they're looking into.
[23:37.200 --> 23:43.080]  And so, in this case, uh, it says here you're, you know, you show up on a certain day.
[23:43.560 --> 23:47.120]  And, uh, this is in bright yellow, which you can't see.
[23:47.760 --> 23:49.540]  Uh, and you also can't read.
[23:50.340 --> 23:51.680]  Is any, can anybody read that?
[23:53.520 --> 23:54.000]  Okay.
[23:54.760 --> 23:56.960]  Um, what it, what it says is this.
[23:56.960 --> 24:08.200]  Is this, is that the, the grand jury is investigating what, what is on its face a really quite broad definition of what went wrong.
[24:08.740 --> 24:17.800]  It's sort of, uh, what, what Ben said is that there's, there's this body of First Amendment law that we're a little uncertain about.
[24:17.800 --> 24:29.220]  And so what the government has is they have a government employee who, who has certainly less rights to leak or disclose information in case law is held bad.
[24:29.380 --> 24:32.820]  So we have Bradley Manning on one end of the spectrum.
[24:33.020 --> 24:44.480]  The other end of the spectrum, we have Julian Assange and WikiLeaks and the New York Times and the Guardian, uh, and to Spiegel at the other end.
[24:45.040 --> 24:50.440]  Uh, what the government would like to do is bring them together.
[24:51.200 --> 24:56.740]  They want to say, WikiLeaks and Assange want to say, we're like the Times.
[24:57.560 --> 24:58.940]  We're just publishing.
[24:59.700 --> 25:04.940]  And what the government, and, and, and I'm speculating here that the government doesn't acknowledge anything.
[25:04.940 --> 25:07.860]  Uh, the government would like to say, you're not the Times.
[25:08.160 --> 25:09.220]  You're not the Guardian.
[25:09.540 --> 25:12.460]  You are Bradley Manning.
[25:13.020 --> 25:14.640]  You are in agreement.
[25:14.840 --> 25:33.760]  And, and the crux of that is, um, how to find out how information that is supposed, was supposedly leaked by Manning got to WikiLeaks and to the Times and to the other people who published it.
[25:33.760 --> 25:51.780]  And what the, uh, what the, uh, purpose of the grand jury is in this case is to show that Assange, particularly Assange, as, as, as we see how this is going partly for the reasons that, uh, uh, that Ben identified.
[25:51.960 --> 25:59.460]  You can't, we're not gonna, going to extradite WikiLeaks, but we can extradite Assange.
[25:59.460 --> 26:00.680]  He's a person.
[26:00.920 --> 26:03.920]  He can be brought from one jurisdiction to another.
[26:04.460 --> 26:17.400]  So, the notion is, uh, in, in, in legal form is to say, uh, that, that, that Assange is more like Manning than like the New York Times.
[26:17.400 --> 26:22.120]  Uh, and that's, uh, that's, that's not gonna be, you know, how that plays out.
[26:22.260 --> 26:41.200]  But in, in doing that, they, they would need to show or to look into, um, how information came from one, the source, uh, to the target, to, to, to Assange and to WikiLeaks.
[26:41.200 --> 26:51.860]  Um, and they are, uh, presumably calling people before the grand jury, uh, who are gonna tell them how that's done.
[26:52.160 --> 26:55.360]  Now, there's another aspect to the grand jury, which I want to talk about briefly.
[26:55.600 --> 27:09.820]  And that is that even after the grand jury has, has completed its deliberations, and has returned an indictment, uh, the government may nevertheless ask, uh, that the indictment be sealed and not released to the public.
[27:10.000 --> 27:17.080]  Now, the, the rule, uh, that permits the government to get focuses on people who are not in custody.
[27:17.460 --> 27:21.640]  Uh, who are, who remain at large and would presumably flee.
[27:22.320 --> 27:24.680]  Not, not an unreasonable position.
[27:26.720 --> 27:46.140]  Uh, the question that has to be asked here is, and it was reported, uh, earlier this year, uh, according to the, uh, the so-called Stratfor hack, which was published by WikiLeaks, uh, that, that at the end of February, that Assange had in fact been indicted,
[27:46.280 --> 27:59.660]  that there was an indictment, that, that various people in the security firm Stratfor, whose records were, were hacked by, you know, purportedly by anonymous, uh, had said, we got him, he's gonna be indicted, everything is done.
[27:59.660 --> 28:09.660]  Now, that, uh, if there is an indictment, uh, the government still has the authority to ask the court, uh, to seal that, to withhold it from the public, to withhold it from Assange.
[28:09.900 --> 28:27.600]  And, and I think one of the interesting things about that is that that would be, you know, arguably a significant issue in the, in the legal proceedings in the United Kingdom, uh, where Assange is contending that, A, uh, there's no authority to extradite him,
[28:27.780 --> 28:41.140]  uh, to Sweden, but that, B, uh, that the process is being manipulated, uh, in order to secure, uh, his, his ultimate extradition of the United States to face criminal charges.
[28:41.360 --> 28:43.760]  The answer is, you know, because we don't, we don't know that.
[28:43.760 --> 28:46.720]  Uh, we don't know how that's, that's, that's working.
[28:47.400 --> 28:59.340]  Um, but what, um, to go back to what, what the core of the investigation is, the government says it's investigating a few things here.
[28:59.420 --> 29:20.100]  First, it says it's investigating, uh, violations of the Espionage Act, uh, which, which, which Ben described, uh, which essentially prohibits the disclosure of information to someone who is not entitled to receive it, uh, and, and how that's done.
[29:20.300 --> 29:41.860]  Uh, but, but the second and more, uh, troubling part of that is that, that it says, we're also investigating a conspiracy, uh, which is a much broader theory of criminal, criminal liability, which simply suggests that there is some form of agreement and that there need only be a single overt act to do that.
[29:42.000 --> 30:00.460]  So that if the process by which documents allegedly flowed, uh, from Manning to ultimate publication by, by WikiLeaks, by The Times, by Der Spiegel, uh, if someone knew about that, agreed to do it, uh, that's a much broader theory.
[30:00.460 --> 30:20.660]  And it incorporates not only the Espionage Act, uh, but the, the, the, the theft of government property by, uh, statute, and the statute which more broadly, uh, prohibits, uh, computer hacking, uh, under which various members of Anonymous, uh, and, and other folks have been,
[30:20.700 --> 30:23.300]  are currently being prosecuted in New York and Los Angeles.
[30:23.300 --> 30:28.420]  I think my, my time is, has, has run and I'm, I'm running into Catherine's time.
[30:28.660 --> 30:35.820]  So, let me stop there and turn it over to Catherine so we can, she can describe a, uh, a different intrusion on individual rights.
[30:37.920 --> 30:38.400]  Thanks.
[30:40.420 --> 30:48.500]  So, I'm going to switch gears a little bit and I'm going to talk about some of the broader ramifications of the government's WikiLeaks investigation.
[30:48.500 --> 31:02.620]  Um, you know, the WikiLeaks investigation has in some sense been, you know, uh, one domino that has then set off these incredible chain effects, both in the media, but also in our legal system.
[31:02.800 --> 31:05.560]  And it's come at a very interesting time.
[31:05.760 --> 31:12.680]  Because it has come at a time where, um, no one really knows how to interpret the Fourth Amendment anymore.
[31:13.520 --> 31:23.280]  It used to be the case in the pre-digital world that most of the important questions about what was a search and seizure and what were the limits on the government's power were largely worked out.
[31:23.520 --> 31:32.900]  And then, when digital technology became so much more widespread, many of these fundamental assumptions began to be challenged.
[31:32.900 --> 31:47.360]  And, um, that, of course, coincided with the fact that we now store more and more digital data, uh, than we ever have previously, creating this incredibly tempting trove of data for government investigators, uh, to look into.
[31:47.880 --> 31:57.120]  Um, and so, this combination of factors has actually, um, led to another way in which WikiLeaks has shed light on what is going on.
[31:57.120 --> 32:11.280]  And that is, several cases that have resulted in some sense from the WikiLeaks investigation have shed light on ways in which, um, the executive has increasingly been accessing our personal data to investigate us.
[32:11.420 --> 32:18.520]  And I'm gonna focus, uh, briefly on two cases the ACLU has been involved in that have raised some of these related issues.
[32:18.920 --> 32:24.420]  Um, one of them deals with the government's search policy at the international border.
[32:24.420 --> 32:39.900]  Um, as some of you may know, and I know some of you do because some of you have actually had your laptop searched at the international border, the government argues that it can search your laptop, your cell phone, or any electronic device you bring with you across the border for any reason or no reason at all.
[32:40.140 --> 32:43.040]  It is a purely suspicionless search policy.
[32:43.600 --> 32:45.680]  It actually is even broader than that.
[32:45.900 --> 32:53.380]  They argue that if you're crossing the border and they want to, for example, continue to search your device for a prolonged period of time, they can take it from you.
[32:53.380 --> 32:57.340]  And they can continue to search it for as long as they want.
[32:57.620 --> 32:59.140]  Now, there is one restriction.
[32:59.140 --> 33:05.020]  The person doing the searching every 15 or 30 days has to go get a supervisor check off to keep your laptop for a little longer.
[33:05.060 --> 33:08.440]  But they argue that there's no constitutional restriction on any of this.
[33:09.040 --> 33:17.740]  Moreover, they have the broad authority to keep the data they take from your electronic device for any law enforcement purpose.
[33:17.740 --> 33:22.180]  A term that we're not really sure what it means, but is awfully broad.
[33:22.340 --> 33:29.700]  And of course, once someone has a copy of your data, where that data goes often can be difficult to trace.
[33:31.080 --> 33:38.680]  So, with that background in mind, one of the cases we've been involved in is representing an individual named David House.
[33:39.340 --> 33:42.440]  John and I actually both represent Mr. House.
[33:43.080 --> 33:56.840]  David is one of the co-founders of an organization called the Bradley Manning Support Network, which is an organization dedicated to providing...to trying to support Bradley Manning and to provide funds for his legal defense.
[33:56.840 --> 34:12.360]  I think there was a perception that...that a lot of attention was being paid to Assange and WikiLeaks, but there wasn't enough being done to support the person who at least was accused of releasing all of this information in the first place.
[34:12.840 --> 34:16.080]  David was involved in helping to found that organization.
[34:16.600 --> 34:30.740]  And then a few months later, when he was returning from a personal vacation in Mexico, he crossed the international border and the government stopped him and took his laptop and other electronic devices and held onto them.
[34:30.900 --> 34:39.520]  They ultimately let him into the country after questioning him about his role in the Bradley Manning Support Network and things like that.
[34:39.600 --> 34:41.560]  But they kept his electronic devices.
[34:41.780 --> 34:45.360]  And actually, they didn't end up returning his laptop for about 49 days.
[34:46.220 --> 34:49.900]  David was obviously understandably upset about all of this.
[34:49.900 --> 34:55.380]  And among other things, he had many sensitive materials belonging to the support network on his laptop.
[34:56.560 --> 35:04.360]  And for instance, he had the list, the membership list of people in the Bradley Manning Support Network on his device.
[35:04.560 --> 35:18.800]  And the idea that the government could simply take this through a search policy that they had that authorized them to search your device without any reason to believe that you've engaged in wrongdoing whatsoever was obviously extremely concerning to him.
[35:18.800 --> 35:23.260]  And I think a real threat to many of our privacy rights and our right to free speech.
[35:24.820 --> 35:29.840]  The ACLU ultimately decided to represent David.
[35:29.840 --> 35:40.100]  And we filed a lawsuit in federal court in Massachusetts arguing that what had happened to David violated both the First and the Fourth Amendment rights.
[35:40.360 --> 35:43.440]  And I'll just briefly set out what our claims are in that case.
[35:43.520 --> 35:47.340]  And then I'll just give you a little bit of an update on where the case is.
[35:47.940 --> 35:50.200]  There's a Fourth Amendment claim in the case.
[35:51.000 --> 35:55.200]  The Fourth Amendment, as I mentioned, protects against unreasonable searches and seizures.
[35:55.440 --> 36:08.460]  And we argue that given the sensitive nature of what is on a laptop, that it violates that prohibition to engage in a purely suspicionless search of someone's laptop.
[36:09.560 --> 36:23.400]  We also have a second argument, which is that the government cannot then take your device and keep it for 49 days to continue searching it without at least reasonable suspicion that you've engaged in wrongdoing.
[36:23.780 --> 36:25.420]  Those are the Fourth Amendment claims.
[36:25.600 --> 36:30.660]  And as to the First Amendment claim, it really centers on David's role in the support network.
[36:31.320 --> 36:40.860]  We believe he was targeted for a search because of his involvement with that support network and that the search caused harm to the support network.
[36:42.060 --> 36:49.600]  Because people, for example, may be reluctant to donate to an organization where, you know, that's politically controversial.
[36:49.940 --> 36:56.980]  And then having the membership list taken in internal emails really makes people feel insecure about being involved in something like that.
[36:57.200 --> 37:03.080]  The First Amendment has for a long time protected the right of people to associate free from government intrusion.
[37:03.780 --> 37:06.800]  This doctrine dates, you know, it's very old.
[37:06.800 --> 37:09.280]  It dates from the civil rights movement at least.
[37:09.520 --> 37:16.360]  The most prominent case involved attempts of states like Alabama to force the NAACP to disclose its members, right?
[37:16.540 --> 37:23.120]  And the court in those cases said, you know, you have a right to engage in political organizing and association.
[37:23.400 --> 37:29.740]  And obviously it infringes on that right to be forced to disclose your membership list.
[37:29.740 --> 37:32.340]  So those are the nature of the claims.
[37:32.340 --> 37:37.760]  We actually got a pretty good decision from the judge in that case a few months ago.
[37:38.490 --> 37:40.640]  It was a mixed decision.
[37:42.320 --> 37:47.400]  The First Amendment claim the judge said that... the judge upheld.
[37:47.620 --> 38:03.820]  And it said that if the government targets your electronic devices for a search because of your associational activity, then you have made out a First Amendment claim and she's allowing us to go forward and to put into evidence the facts we need in order to prove that claim.
[38:04.080 --> 38:08.080]  The Fourth Amendment claim, unfortunately, the ruling was more mixed.
[38:08.620 --> 38:14.260]  She endorsed the idea that you can have your electronic devices searched at the border for any reason.
[38:14.400 --> 38:17.060]  She endorsed the purely suspicionless search policy.
[38:17.760 --> 38:24.280]  She was, however, willing to put some limits on the length of time that the government can keep your electronic devices.
[38:25.240 --> 38:28.040]  The government argued that they should be able to keep them indefinitely.
[38:28.680 --> 38:30.520]  And she wasn't having any of that.
[38:30.700 --> 38:36.580]  She said that the length of time they keep your electronic devices at least needs to be commensurate with its need, right?
[38:36.620 --> 38:39.080]  You can't keep it for a very long time.
[38:39.560 --> 38:46.120]  You know, the government essentially said we're overworked and there was, you know, an operating system we weren't very familiar with on this laptop.
[38:46.360 --> 38:50.000]  And so, therefore, we needed 49 days in order to make a copy of it.
[38:50.160 --> 38:55.280]  We had an expert declaration to suggest that that was ridiculous, that it's not that hard to make a copy of data on a laptop.
[38:55.500 --> 38:58.340]  And I can see that a lot of people here agree with that.
[39:00.480 --> 39:03.700]  And so we've been allowed to go forward on that claim in particular.
[39:03.700 --> 39:08.360]  But in some ways, you know, this policy has been in play at least since the...
[39:08.360 --> 39:11.840]  This official research policy has been around since at least the mid-2000s.
[39:11.900 --> 39:26.360]  But I feel like a lot more people have heard about it and can be concerned about it because of the way that the, you know, the WikiLeaks sort of aftershocks have shed some light on this also.
[39:27.080 --> 39:35.340]  You know, the other case, which I'll just mention very briefly, I think, because we want to leave time for, you know, whatever you all want to talk about.
[39:35.900 --> 39:38.820]  We've represented some individuals who have gotten...
[39:38.820 --> 39:43.860]  Who the government has sent subpoenas to Twitter to get access to their account information, right?
[39:44.500 --> 40:06.920]  I don't think the public fully understood the degree to which this was a prime investigative technique until all of a sudden, you know, major media publications were running stories about the access of the government's attempts to force Twitter to turn over account information of people who are sort of broadly caught up in the sphere of WikiLeaks.
[40:07.260 --> 40:18.960]  And so in some senses, the WikiLeaks investigation has also sort of shed light on the degree to which our account information can be used in investigations against us, often under lax or poorly understood legal standards.
[40:20.060 --> 40:24.680]  So I guess I'll stop there unless... so that you all can...
[40:24.680 --> 40:28.080]  I don't know if people want to talk about any issues in particular.
[40:28.220 --> 40:29.340]  There's a microphone towards the front.
[40:33.350 --> 40:33.710]  Great.
[40:33.710 --> 40:41.390]  Yeah, if you could line up at the front and we would just ask, because we don't have a whole lot of time, if people could try to keep their questions or comments to about a minute, that would be helpful.
[40:41.570 --> 40:41.790]  Thanks.
[40:42.290 --> 40:48.010]  I would just like to know about the mechanics of runaway grand juries a little bit.
[40:48.010 --> 40:49.630]  And I'd like a follow-up question, please.
[40:54.330 --> 40:59.590]  The runaway grand jury is a great mythological creature.
[41:00.630 --> 41:06.730]  The grand jurors actually, in theory, control the room and vote on it.
[41:06.750 --> 41:09.190]  And it's the vote of the grand jury that makes a difference.
[41:09.290 --> 41:12.770]  The prosecutor is simply present to assist them in gathering evidence.
[41:12.770 --> 41:20.410]  But the apocryphal stance is that the government can easily secure the indictment of a ham sandwich.
[41:20.710 --> 41:24.950]  And that, I think, accurately reflects the dynamics of the current grand jury practice.
[41:25.670 --> 41:26.250]  Thank you.
[41:26.310 --> 41:28.290]  And I would just like to ask a question about the Twitter case.
[41:28.430 --> 41:35.130]  I'd like to know if Brigitte Hanstetter's standing as a parliamentarian should have affected it any differently.
[41:37.330 --> 41:39.470]  You know, that's an interesting question.
[41:39.790 --> 41:47.150]  I think the answer should be no, because I don't think the government should be getting this information about anyone.
[41:48.010 --> 41:56.210]  But, you know, things obviously get particularly sensitive when you're talking about people of political affiliations with, you know, with foreign powers.
[41:56.210 --> 41:58.230]  And it raises various diplomatic concerns.
[41:58.230 --> 41:58.890]  Right.
[41:58.970 --> 42:00.670]  There wouldn't be a difference under the Fourth Amendment.
[42:02.230 --> 42:07.610]  You would think that the administration would show a little bit more restraint when it's dealing with an elected member of a foreign government.
[42:07.610 --> 42:09.990]  But that doesn't seem to be what's happened.
[42:10.530 --> 42:11.010]  You'd think.
[42:11.370 --> 42:11.530]  Yeah.
[42:11.630 --> 42:11.990]  Thank you.
[42:15.930 --> 42:16.330]  Hi.
[42:17.430 --> 42:22.430]  So I've been a journalist, and I've gone to Alexandria, and I've also gone to Fort Meade.
[42:23.770 --> 42:34.250]  And the thing that really shocks me is that David Coombs, Bradley Manning's lawyer, had a discovery motion for this WikiLeaks grand jury testimony.
[42:34.990 --> 42:41.570]  And he received full testimony, except every single page and every single word was redacted.
[42:41.970 --> 42:42.550]  Alright?
[42:42.830 --> 42:44.330]  Not a single word.
[42:44.510 --> 42:45.610]  Well, he did get the records.
[42:45.970 --> 42:46.630]  He got the...
[42:50.110 --> 42:52.670]  And David Coombs showed this in court.
[42:53.950 --> 43:06.450]  Meanwhile, I was pressing one of the public affairs legal briefers about whether this grand jury was still going on.
[43:06.530 --> 43:09.510]  And he acted like he had never even heard of it.
[43:10.690 --> 43:12.850]  And he said, well, that's the Department of Justice.
[43:12.870 --> 43:15.270]  I have no correlation with them.
[43:15.270 --> 43:19.550]  But the government seems to be acting like this isn't going on at all.
[43:20.330 --> 43:24.830]  And at what point will they have to finally admit that this has been going on?
[43:24.890 --> 43:26.370]  This has been going on for two years now.
[43:27.430 --> 43:31.070]  We don't know the dates of any of this.
[43:31.670 --> 43:35.970]  Roughly, we believe that it was impaneled in December 2010.
[43:35.970 --> 43:36.470]  Right.
[43:38.170 --> 43:42.130]  And so it would be at the end of its normal course right now.
[43:43.450 --> 43:46.490]  But it could be extended by the court for at least another six months.
[43:46.770 --> 43:49.270]  And if it's a special grand jury, there are different rules that apply.
[43:51.570 --> 43:58.030]  But there also could be sealed indictments, which the court could have permitted them to sit on for whatever reason.
[43:58.030 --> 44:00.630]  And we have no idea if it's concluded or not.
[44:01.230 --> 44:01.670]  We...
[44:03.390 --> 44:05.010]  From what I know, no.
[44:05.830 --> 44:06.710]  Is it...
[44:06.710 --> 44:11.170]  Do we know of people being called before it now through connections anecdotally?
[44:11.450 --> 44:13.370]  When was the last time we heard of somebody being called?
[44:15.410 --> 44:18.350]  Well, my informal survey, I didn't learn anything.
[44:18.490 --> 44:19.850]  But I didn't...
[44:19.850 --> 44:23.390]  You know, I can't say there are lots of people who could be called.
[44:23.710 --> 44:27.970]  Remember that they're looking into process as well as individuals.
[44:27.970 --> 44:32.610]  It's not simply the who but the how that they're investigating.
[44:32.730 --> 44:42.870]  And that can extend much more broadly than the circle of lawyers who might have been engaged in representing people who could be called before the grand jury.
[44:42.870 --> 44:44.050]  Thank you.
[44:46.470 --> 44:49.890]  Sort of while we're waiting for the next person to come up, I'll say...
[44:49.890 --> 44:52.150]  First, David House was called before the grand jury.
[44:53.250 --> 45:02.330]  And since he's already stated this on the record, I'm not disclosing anything.
[45:02.850 --> 45:05.130]  David appeared before the grand jury.
[45:05.510 --> 45:10.970]  He invoked his right under the Fifth Amendment not to testify as to all questions.
[45:10.970 --> 45:18.550]  Under those circumstances, the government has the option of granting or seeking or granting immunity.
[45:19.070 --> 45:24.610]  In which case, you are required to answer the government's questions.
[45:24.870 --> 45:27.890]  You can refuse and risk contempt.
[45:29.210 --> 45:33.790]  But that's the only way that you can get beyond that and seek review.
[45:33.790 --> 45:45.450]  And even then, the grounds on which you can refuse to answer once you have been granted immunity are very few and largely unavailable.
[45:47.690 --> 45:51.530]  You talked about searching your electronics at the border without any justification.
[45:51.530 --> 45:56.070]  If you were to, say, ship your laptop across the border, obviously the logistics are different.
[45:56.070 --> 45:57.930]  They have to go through FedEx or whatever.
[45:58.130 --> 45:59.670]  But are the legalities any different?
[45:59.850 --> 46:00.790]  Can they still do that?
[46:01.690 --> 46:02.690]  Not for...
[46:04.610 --> 46:06.870]  There's no legal difference for a package.
[46:07.230 --> 46:12.050]  There is a legal difference, oddly, for first-class, letter-class mail.
[46:12.050 --> 46:13.810]  There is a statute.
[46:14.090 --> 46:23.270]  So if you send the letter, like just in an envelope, there is a statute that says the government cannot read that mail without reasonable suspicion.
[46:25.610 --> 46:28.510]  So you can take advantage of that.
[46:28.710 --> 46:39.170]  You can, of course, also, you know, upload your data onto an Internet encrypted before you travel, wipe your laptop clean, take your laptop overseas, download everything.
[46:39.430 --> 46:50.670]  So you might wonder about the utility of this suspicionless search policy other than to, you know, alienate people who don't know any better while not actually catching serious criminals.
[46:50.670 --> 46:53.250]  But you, yeah, that's the answer.
[46:53.250 --> 46:57.850]  The question raises a far more interesting nuance.
[46:58.670 --> 47:03.150]  Because at the border, you're carrying a physical item which has data on it.
[47:03.830 --> 47:08.730]  If you ship something in, you're shipping a physical item which carries data.
[47:08.990 --> 47:20.650]  What we haven't addressed is whether the government has ever taken the position that it is free to intercept the flow of data into the United States.
[47:22.710 --> 47:24.350]  on a customs theory.
[47:24.550 --> 47:26.850]  It's never certainly, as far as I know, it's never asserted that power.
[47:28.590 --> 47:31.170]  And would raise, I think, a far more serious problem.
[47:31.750 --> 47:34.250]  That being said, what's the point?
[47:36.610 --> 47:37.430]  What's the point?
[47:38.370 --> 47:39.670]  There are no borders.
[47:40.790 --> 47:40.870]  Right.
[47:41.530 --> 47:42.230]  Not to the Internet.
[47:42.450 --> 47:44.570]  Well, I guess there's also a Moore's Law question.
[47:44.570 --> 47:48.810]  How many years will it be before your laptop can fit inside a first-class envelope?
[47:50.330 --> 47:51.250]  USB drive.
[47:51.510 --> 47:51.990]  Right.
[47:53.010 --> 47:53.490]  Well...
[47:53.490 --> 47:54.250]  Thank you.
[47:55.630 --> 47:58.790]  My question is also about the warrantless border searches.
[47:58.950 --> 48:00.790]  Is it a settled law?
[48:02.010 --> 48:05.810]  And basically, has it been heard in front of the Supreme Court?
[48:06.150 --> 48:07.610]  Or, I mean, is it basically settled law?
[48:07.610 --> 48:13.190]  Well, I mean, they are kind of using this to, you know, maliciously, you know, take...
[48:13.190 --> 48:24.970]  And another thing, you were saying that there's different rules for reporters, but they're using this to harass reporters who are saying, you know, who are going in and working with people who aren't friendly, you know, to our government, and they're taking their things,
[48:25.090 --> 48:26.530]  and then that's basically what they're doing.
[48:26.530 --> 48:31.930]  They're shipping their items via, you know, freight, because they know they're going to be, you know, searched.
[48:31.930 --> 48:34.010]  So, I was just wondering what...
[48:35.310 --> 48:36.790]  It's not settled law.
[48:37.410 --> 48:43.190]  But the more recent case law, with the partial exception of our case, isn't so fantastic.
[48:44.130 --> 48:55.210]  I think there's actually good Supreme Court law that's older, which is much more skeptical of these broad government claims to be able to access people's reading materials when they cross the border.
[48:56.030 --> 49:04.150]  The unfortunate reality is that a lot of these border search cases come up in the context of child pornography prosecutions.
[49:04.410 --> 49:14.690]  And I don't think any judge ever wants to suppress evidence that would allow someone who committed such a vile crime to go free.
[49:14.690 --> 49:17.550]  And in that context, judges have allowed...
[49:18.190 --> 49:23.850]  You know, have basically issued opinions saying that you're allowed to engage in these searches on a purely suspicionless basis.
[49:24.470 --> 49:26.330]  But I think those cases are wrong.
[49:26.570 --> 49:35.430]  And I think, also, the reasonable suspicion standard would allow the government to pursue legitimate investigations while stopping the worst offenses, right?
[49:35.550 --> 49:38.390]  Targeting people for illegitimate reasons or simply arbitrarily.
[49:39.510 --> 49:42.270]  And your other point is obviously correct.
[49:42.270 --> 49:47.690]  There are many people who do seem to be being singled out for these searches for illegitimate reasons.
[49:48.510 --> 49:56.770]  You know, Laura Poitras is in the audience with us, and Glenn Greenwald did a tremendous article about her experiences crossing the border.
[49:57.470 --> 50:10.970]  I will just add one other example, which is that there are a few people who have walked into my office as distraught as attorneys who have had all of their attorney-client privilege information seized when they've been returning across the border.
[50:11.510 --> 50:24.130]  Having to explain to your clients that their personal data has been taken by the government who may, in fact, be prosecuting them is a real burden for people who are doing that type of work.
[50:29.940 --> 50:30.800]  Fast question.
[50:31.140 --> 50:45.460]  With key loggers and the FBI has placed cell phone spyware on cell phones to track movements and even turn on the microphone to listen to room conversations, where does that all fit in?
[50:45.460 --> 50:58.720]  It seems to me that the border actions are more intimidation and harassment, and there's probably another layer that we need to be even more concerned about with key loggers on laptops and cell phone spyware.
[50:59.840 --> 51:00.320]  Yeah.
[51:00.580 --> 51:02.400]  So, you know, I think that's a really good question.
[51:03.080 --> 51:14.340]  To my understanding, and if any of you know differently, I would love to hear it, the government has... the examples I know of the government using key loggers, they're generally getting a warrant based upon probable cause, right?
[51:14.400 --> 51:17.280]  And that's generally the best you can do in these situations.
[51:17.720 --> 51:32.460]  When it comes to other types of data, like location data and other data that may be collected by cell phone carriers or third parties, I mean, you know, the New York Times just this past Sunday had a tremendous story about the 1.3 million requests for customer records that our cell phone companies are getting,
[51:32.640 --> 51:32.780]  right?
[51:33.760 --> 51:38.200]  And the legal standards that govern those requests are tremendously unclear.
[51:38.560 --> 51:49.040]  You know, the Obama administration has argued that you have no Fourth Amendment right in your location data kept by your cell phone company because you have voluntarily conveyed that information to them, right?
[51:49.320 --> 51:57.320]  As though it is just something that you've chosen to do knowingly rather than being an inherent feature of the technology.
[51:57.700 --> 52:07.460]  You know, the Supreme Court, I think, in a recent decision, United States versus Jones, has raised some hope that that type of data will be subjected to a warrant and probable cause requirement.
[52:07.660 --> 52:12.680]  But these are uncertain times for these types of questions.
[52:13.020 --> 52:19.500]  And the courts often move very slowly to resolve them, so it may be another decade before we have answers to just basic questions.
[52:19.740 --> 52:43.760]  And the parallel to that is that the information which is held by the phone companies, leaving aside the content of what you may have said on the phone or what you may have communicated by email, all of the transactional data is arguably covered by earlier Supreme Court law which says you have no expectation of privacy in any of that.
[52:43.880 --> 52:50.340]  And if the government can get it from the phone company or from the Internet service provider, then you're out of luck.
[52:50.400 --> 52:52.340]  You don't have any way to protect that.
[52:52.340 --> 53:02.980]  And if you look at the terms of service and the privacy policies, most phone companies, most Internet service providers, they have adequately protected themselves from that, saying we will respond to the legal process.
[53:05.710 --> 53:11.040]  The discussion has reminded me of something I think my father told me when I was knee-high to a grasshopper.
[53:11.080 --> 53:13.380]  And he told me, you can't sue the government.
[53:13.600 --> 53:15.780]  If they don't want to pay your bill, they won't pay it.
[53:15.840 --> 53:18.780]  If they don't want to answer your lawsuit, they won't answer it.
[53:20.320 --> 53:24.400]  And it strikes me that a lot of this discussion is very much around the details.
[53:24.400 --> 53:25.480]  Are you inside the border?
[53:25.580 --> 53:26.620]  Are you outside the border?
[53:26.720 --> 53:27.440]  Are you a citizen?
[53:27.660 --> 53:29.220]  Do your amendment rights apply?
[53:30.760 --> 53:35.960]  How do we get around the problem that what we're really trying to do is to sue the government?
[53:37.560 --> 53:44.540]  Well, I think that there's a lot of truth in what you said, but there's a limit to it as well.
[53:44.540 --> 53:59.960]  You know, certainly when the government uses the talismanic term national security, most even judges who have life tenure go scurrying to the hills and will do whatever they're instructed to do by government agents.
[54:00.060 --> 54:01.140]  But that's not always the case.
[54:01.140 --> 54:04.300]  And not all of these issues arise when we sue the government.
[54:04.800 --> 54:09.960]  Some of these issues arise when the government sues us, or in other words, prosecutes people.
[54:10.500 --> 54:20.620]  You know, the Jones case where the Supreme Court unanimously rejected the government's argument that they ought to be able to crawl under your car, put a GPS on it, and track you for as long as they want.
[54:20.980 --> 54:24.480]  You know, the justices of the Supreme Court emphatically rejected that.
[54:24.620 --> 54:27.180]  So, you know, there are... there is resistance.
[54:27.900 --> 54:36.460]  You know, I think that when the government is able to frame these issues as national security issues, we tend to get routed.
[54:37.060 --> 54:42.440]  And when we're able to frame these issues as something that could affect all of us, we tend to have more luck.
[54:42.600 --> 54:50.080]  I mean, maybe the critical moment in the Jones case was when Chief Justice Roberts said incredulously to the government lawyer, could you do that to us?
[54:50.900 --> 54:53.620]  And so it's that sense that we need to...
[54:54.380 --> 55:00.820]  you know, we need to explain to people how this matters and this isn't just about, you know, giving more rights to terrorists.
[55:02.200 --> 55:06.420]  And if you do explain that to the people, what sanction do the people then have?
[55:06.420 --> 55:09.440]  How can the people act given once they understand it?
[55:09.620 --> 55:13.100]  We here are a very small subset of the people who do understand it.
[55:13.200 --> 55:21.200]  And it seems to me that it's in nobody's interest to explain to the people at large in this country why any of this is in their interest.
[55:22.460 --> 55:32.100]  Well, you know, on that, no one up here is a better expert than anyone out there on how to educate, organize, and advocate for these issues.
[55:32.520 --> 55:34.280]  I don't think anybody is an expert.
[55:34.520 --> 55:37.800]  And if we knew the answers, we'd probably be doing something else.
[55:37.940 --> 55:40.680]  But thank you all for being here on a Friday night.
[55:40.740 --> 55:41.800]  It was really an honor for us.
[55:42.100 --> 55:42.840]  Thank you.