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UW School of Law Transcript

Protecting Privacy and National Security in the Digital Age

April 15, 2014

Bill Covington

Thank you for coming. I am Bill Covington and I direct the technology Law and Public policy clinic here at the University of Washington. It's our great pleasure to host this conversation and on behalf of Dean Kellye Testy in the UW law community I wish to say welcome.

We have a distinguished panel and a topic of great immediacy: protecting privacy and national security in the digital age. Here's how we will proceed: I will introduce the panelists and provide some brief biographic information. To start things off each panelist is going to spend time addressing to questions one of which calls for a description of the challenges we are facing and the second will ask each to describe what they see as potential solutions. We will then open the floor for audience questions and comments. I would ask that in the interest of maximizing involvement that questions and comments are kept to no more than 3 min. We hope to have a dynamic and educational conversation so let's get started.

Our panelists are Brad Smith who is the executive vice president and general counsel for Microsoft. Mr. Smith hails from Wisconsin. He attended Princeton University where he graduated summa cum laude. He holds a law degree from Columbia University and studied international law and economics in Geneva. Prior to joining Microsoft Mr. Smith was an associate and then a partner at the Washington DC law firm of Covington and Burling.

Rep. Suzan Delbene represents the first legislative District. She attended Reed College and received an MBA from the University of Washington. Representative Delbene he has extensive private and public sector experience having worked as a CEO, and entrepreneur and was associated with Microsoft for 12 years. Under Gov. Gregoire she directed the state's Department of revenue. The representative has served in Washington's first legislative District since 2012.

Gabe Rotman is legislative policy Council in the ACLU's Washington DC office. He focuses on the First Amendment. Mr. Rotman hails from Ottawa Canada and did his undergrad and graduate work at Georgetown and McGill universities. Prior to coming to the ACLU he worked for the law firm of Simpson, Thatcher and Bartlett.

But when looking at the issue of protecting privacy and national security in the digital age 2 words come to mind: trust and balance. I believe it was the representative who said, “Congress needs to work to balance our nation's security with the need to protect individual civil liberties”. And the question is how do we do that? How do we make sure that we need not fear the watchdog more than the Wolf? The second issue is trust. When preparing my remarks I came across a very interesting story in the San Jose Mercury news which said the national security agency on Friday strongly denied a report that the government failed to warn the public about the notorious heart bleed software flaw allegedly because the NSA wanted to continue using it to gather intelligence. The story said the NSA (as Internet users and businesses vulnerable to hackers for the past two years in order to continue exploiting the bug as a powerful tool for obtaining passwords and other data from users accounts. The very fact that the story of this nature is even considered plausible shows how low the level of trust has gone between those who are supposed to protect us and ourselves. So I would like to turn to each of our panelists and start to questions and I would ask each of them to address the first question go down the line, come back and then do the second question. And then we will throw things open for your remarks and your own questions.

So the first question I would like to ask is could each of you share your personal and more applicable your organization's thoughts on what are our privacy rights? What are the current challenges we are facing as a society when it comes to those rights?

Brad Smith

Thank you I would first put this into the historical context of that I think it deserves, the fundamental challenges, the tension between the protection of public safety and national security on the one hand and the protection of personal privacy on the other. I think it's worth reflecting on the fact that this is the tension that is literally as old as our country itself. This is really the fourth time in the nations history when we have had to grapple with this kind of question. The first time was after John Adams was president during the Napoleonic war. The Congress passed the alien and sedition act. And after those wars past people stepped back and asked whether they were really comfortable with the crackdown on free speech. The second time was after Pres. Lincoln suspended the writ of habeas corpus in the Civil War and once the war ended people stepped back and debated more broadly how comfortable they were with the suspension of so many civil liberties. The third time was a World War II when Pres. Roosevelt interned Japanese Americans and then there was a debate after the war when people considered whether they were really comfortable with all of those steps. If you look at it that way to some degree it was perhaps inevitable that the pendulum would move in one direction after 9/11. I think it was equally inevitable that this day would come and that we would ask more broadly whether we are more comfortable with where things are today.

I think fundamentally we need to recognize that two things are different today from any of these other periods in the nation's past. The first is the war on terror feels more permanent and because the war on terror feels more permanent we have to come to terms with a longer-lasting approach. Second, people have more information about themselves stored in other places than they have ever had before. So when you put those things together you see the tension continues on both sides is on heightened pressure compared to the past. The last thing I will say is that as a country we have had one long-lasting value and that is a value that is enshrined in the fourth amendment to the Constitution and that is a piece of text that guarantees for all of the people of this country the right to be secure in their persons, houses, papers and effects from unreasonable search and seizure by the government without due process of law. That is a value that I think has been at this nation's core literally since the Constitution, shortly after the Constitution was adopted and I think fundamentally it is a guiding light for the future as well. We can talk about what exactly that means.

Suzan Delbene

Brad talked about our privacy rights of how people view their privacy rights and one of the challenges that we face today is that people do feel that that is out of balance. We have had laws that have been out of date with technology. As a member of the House Judiciary Committee one of the first things I worked on in this Congress was addressing a piece of legislation called the electronic indications privacy act and that is a good example of something where it said that information that is in the cloud for example digital information isn't held to the same warrant standard that a piece of paper might be that is sitting in your desk drawer. And that difference alone shows you that the world has changed a lot. The law hasn't kept up with that and people assume that we have certain rights based on property that may be different now in a digital world.

Now that got extended, we introduced legislation to update that, to create a warrant standard for electronic communications but then we saw also the NSA revelations that bulk data was being collected, information was being collected whether or not people were targets of an investigation. We saw the American public really feel like these civil liberties and our national security was out of balance. Information was being collected. NSA wasn't following protocols that had been established, their own protocols that have been established for use of that information. And now more and more we have a national conversation happening about reining in the NSA and making sure we put that balance back in place. There has been a big conversation about this in Congress because we do have this challenge where people felt like legislation out there, the patriot act for example, had more restrictions on access to this information then has actually been what we have seen happen with the foreign intelligence surveillance act and the courts there. There has been broad access.

So now the question is how do we bring that back in? How do we put something back in place that protects civil liberties for people and also provides targeted access to information where necessary for security interests? That is an important piece of legislation. The USA freedom act is a bill. We will talk about that a little bit more. I am a cosponsor of… Is part of the conversation we are having in Congress to address this issue but it's going to be an ongoing conversation because our world keeps changing. Technology keeps changing. How people access information keeps changing and we need to make sure the policy reflects our rights as technology changes as well.

Gabe Rotman

Thanks very much. I was doing a bit of research for this panel and I came across this great quote from Gen. Michael Hayden who was the director of the NSA on 9/11 and then CIA director. And he is talking about the 1998 film enemy of the state where a rogue NSA is chasing after Will Smith. And he said I'm not too uncomfortable with a society that makes its bogeyman secrecy and power. Which is an admirable sentiment and I think one that we all share. But the challenge I think that has faced us since 9/11 it's not just secrecy and power it secrecy and discretion. Or put another way of secrecy and centralized power. It's the fact that the government has been able to engage in bulk surveillance backed by a secret legal reasoning and those two things have created a toxic mix that has resulted in the bulk surveillance that was disclosed by the student revelations. There are two other variables that have made things worse in that time. The two things are: one as Brad said we just produce a lot more information about ourselves and we have a lot of control over that information as it flows over our various telecommunications networks. And then in addition to that there is also significant changes in how that information travels over those networks meaning that the government has a greater ability to collect that information, to store the information and to analyze that information. And that has resulted in a fundamental change from retail surveillance based upon individualized suspicion of wrongdoing to programmatic surveillance where the government collects all the information and then analyzes it looking for the proverbial needle in a haystack. So I think that is the fundamental challenges facing us today where we have had both technological changes and the legal changes and how do we address both in order to bring us back to the fundamental American value of not investigating people without individualized suspicion of wrongdoing.

Bill Covington

Our second question: Mr. Smith what needs to be done? If there were some solutions that you would want to have us pursue as a society what would they be? How would they work?

Brad Smith

I think we need three things. The first is really captured well by what Rep. Del Bene was referring to: the USA freedom act. In short we need to reform public policy in the United States we need to change the law. And I think that part of that is ending bulk collection of data. Part of that is having the government obtain information only pursuant to the rule of law and only based on probable cause. I think that part of that is changing ever going to continue the FISA court we should reform it. We should change the way it works and we should continue as a matter of public policy to increase transparency so people both know what the government is doing and they know what information at least in general companies are providing to the government pursuant to legal process. I think that's important.

Second I think companies need to take new steps certainly something we have been focused on. That is why we have increased encryption to protect against the hacking of data outside of legal process. We do need to keep in mind this is not an issue that is in the United States alone. We are taking new steps to meet customer needs. We have taken a position in our contracts for example, that if the government seeks data from an enterprise account whether it's a university or government or the company we will resist that subpoena and tell the government to go instead served on the company. I think we need new international agreements. Ultimately if data is going to flow across borders and law enforcement is going to work in a responsible and effective way and within a true legal framework it's going to require certain modernization of the way certain legal processes work across countries.

Suzan Delbene

So I agree on the USA freedom act the three pillars of any bulk collection creating transparency so people understand the types of requests that are coming for information and actually having a public advocate in the foreign intelligence surveillance Court's the FISA courts that's important so that someone is actually arguing the other side kind of being the public advocate for whether or not information really should be supplied or needs to be supplied. But in addition to that we need to also look broadly at other areas. I referred to one earlier: electronic communications privacy. This is a law that was written in 1986 about electronic communication so I can guarantee that I was working on e-mail a few years later than that and I am pretty sure that hardly anyone was using e-mail at all in those days and you because we have electronic communications that aren't under a warrant standard now when we have so much information that is stored in the cloud etc. it is very very important that we update loss to capture that. The bill that myself and Congresswoman Lofgren from California and Congressman over Texas introduced is create warrant standard not only for electronic medications but also for geolocation information. If you think about this, a lot of information is going to be constantly changing we need to make sure. Consistent standards for how information can or can't be accessed and make sure people understand that. And I think warrant standard is one example where people assumed that there was a warrant standard for permission but policy hasn't kept up.

Also there is a commercial impact to this I think you know where I can speak about this as well when we have the policies in place now that the NSA has been using they had a direct impact we start right away from other countries being concerned about where information may be stored for cloud services etc. because they were worried about how that information might be accessed by the US government. We need to make sure that when we look at solutions we realize that while we are looking at solutions to protect her privacy they're going to have impacts and we need to understand what those impacts are and make sure that those are incorporated when with the business committee they understand how they can uphold their own privacy policies and they can actually do that and that all consumers and then users understand how those privacy policies work as well.

Government has not been good about what I would say being good stewards of policy. Policy gets out of date. Like I said the electronic communications privacy act is 1986. We need to be learning what's working and what's not working and keep policy of today this is a very, very important area that is going to be important that we keep policy up to date so that as we see issues come up and privacy not being protected that we address that right away.

Gabe Rotman

I would echo everything that has just been said. We have been strong supporters of the USA freedom act. We have been strong supporters of ECPA reform and the greater transparency and the ending of all collection that would be accomplished by the USA freedom act is crucial. And it's all part of what I was mentioning before which is the notion that we need to return to the paradigm of no investigation without some individualized suspicion of wrongdoing. But the programmatic surveillance that has arisen since 9/11 I think a lot of us just don't understand the extent to which it really is a very deep threat to personal privacy in America. I think those things are absolutely crucial for this ending programmatic surveillance is this the most important thing to do especially with the USA freedom act.

Bill Covington

We want this to be a conversation so this is the point where we would invite questions and comments. There is a gentleman who has a microphone so we can make sure that everyone hears. So if there are questions or comments if you could raise your hand I would be glad to recognize you.

Audience

Hi I'm visiting from the UK and this is the third or fourth time I've been here since the Snowden revelations and the difference in the conversation that is happening in the US to the UK is this is not happening in the UK at all. There is no political quail. Consumers don't really seem to understand what the implications for the impacts are from a Snowden search the UK as a big dog in this fight in terms of the data sharing with the NSA NGC HQ which is the UK Secret Service. But what we are hearing from a lot of countries is that they want to kind of localized data. They want to bring it within their borders. And I was just wondering if you could talk a little bit about those impacts. You kind of mentioned that you need to think about what this will mean for the global stage and also Brad I read a blog of yours saying that Microsoft is considering giving users the choice of where their data is stored and I wondered if you could say a little bit about that because that sounds really interesting thank you.

Suzan Delbene

So yes I think right after the NSA revelations came out we heard even from other countries about trade agreements. Brazil had concerns right away about where information was stored whether or not companies should have server farms in country that are located there and your data would be there and that obviously would create challenges in the way that people share data and communicate today in terms of how that would be specifically. But it's an important part of the conversation. We look at policy, we have to understand were going to do here to protect Americans and protect their privacy but we also have to understand that this is not just a conversation we are having. Our policy is important but it's also going to be a conversation were going to be having beyond our borders as well and that has got to be taken into consideration especially by businesses were doing business around the world.

Brad Smith

I do think one of the more interesting aspects of this issue is the differing reactions around the world. We have certainly seen the strongest concerns expressed in continental Europe, the rest of the northern part of Asia and in Latin America. And there have probably been relatively few issues of real global significance over the last a decade where there's been such a pronounced difference between the reaction of the American public and the reaction of the British public. I personally think that one reason the British public has reacted differently is that over the last four decades the British public for most of those years lived under the threat of domestic terrorism: first the IRA and then other forms of domestic terrorism in a way that has not really touched Americans to nearly the same degree. Second in the United States a lot of our policies and politics were really influenced by the scandals of the 1970s they came to a head in Watergate that involved abusive power by the executive branch that included the use of information about individuals by the FBI or the White House. In Britain by contrast most scandals politically have been what I would call silly sex scandals. So the British public just as a worry about its government the same way. But the reality is in continental Europe I think there is a great deal of concern. I met yesterday in Redmond with 15 members of the German Parliament. And I think they are asking the same questions about the United Kingdom that they are asking about the United States. It is why we decided in January to take the step of telling customers in Europe for example that we would make it possible if they are enterprise customers store their data in Europe and that way it won't enter the territory of the United States, beyond the jurisdictional reach in many scenarios of the US government. And I think there are at one level growing concerns in our industry that that can be a barrier that restricts the free flow of data that makes cloud computing more expensive but I also think it's probably a bit of the reality that increasingly customers around the world especially if they are in the public sector are going to want their data store closer to home and it remains to be seen how close to home they really want it. But they are not comfortable the way they were a year ago storing their data in the United States.

Bill Covington

Other questions? Yes.

Audience

So this is really for a representative Del Bene. We haven't met but I am the legislative director for the ACLU of Washington and we have just gone through a legislative session in which I think the conversation around surveillance issues is very different from what I have seen in past sessions. We had a drum Bill that went all the way through the process and was passed by strong bipartisan support. I wonder if you could talk about sort of the partisan breakdown around these issues in Congress. You know you alluded to the conversation that is happening there. I think that I have found here at the state level that it has really been the Republicans that have sort of been leading the charge because they really are very distrustful of government and it's been perhaps the liberal D's that I might've expected to be leading this charge hanging back a little bit I'm being a little more hesitant and in fact sometimes just saying we need to trust the government. How does that breakdown in Congress?

Suzan Delbene

You know is interesting and may be refreshing in some ways that this is a very nonpartisan conversation. One of the first pieces of legislation we voted on was an amendment to the Defense authorization act which was called the mosh amendment and it was an amendment and bulk collection. It failed but it was a vote of 205 to 217 in the House of Representatives and we have the board up in the House of Representatives that shows where votes are and the pattern was not consistent with anything you've seen before because all over the map. It was hard to predict who is voting yes and who is voting no and so I would say that's a great example in this case you can't use a partisan dialogue to frame it. Part of it is people understanding the information and understanding really how policy impacts privacy and it has been complicated. It's a complicated issue and so making sure people understand what is in the patriot act for example, what might need to change legislatively to provide, but that balance back in place and provide more privacy protections. What new technologies mean and the impact they might have on access to information or where it is stored and how we need to address policy. That is a conversation that has been an evolving and already you hear people talking more and more quickly talk about for example reform to the electronics communications privacy act the bill I introduced also talks about geolocation information because that is another piece of information that is out there that I'm pretty sure pretty much everyone in this room probably has a cell phone. If you are using location-based services of some kind there is information being stored about your location. Well the bill that we have with geolocation and there is not moving as quickly as the one that is just about digital information in the cloud work kind of a traditional electronic indications partly because people are not sure they understand what the implications are with geolocation and so that shows you again that there is an educational process and understanding I think that is going to happen as we have these conversations going forward but it is definitely not partisan. It is, it has been a collaborative effort. The USA freedom act, one of the original sponsors of that is Congressman Jim Sensenbrenner from Wisconsin. He is a Republican who was one of the authors of the patriot act and he has been definitely outraged that the patriot act has been interpreted much more broadly than he ever expected it to be interpreted in so he has been a big champion of reform and has been one of the leaders on USA freedom act. So once again not really partisan lines there. We do in addition have some interesting issues that will come up because in the house things are looked at based on committee jurisdiction and you can see now that the intelligence committee is taking a slightly different path than the judiciary committee has and so that is going to be another area that is going to be important because people look at legislation within the realms of jurisdiction of their committee and I think when we talk about privacy expands many different committees many different issues and so we have got to get away from that kind of the blinders of committees and make sure that we look at legislation and getting the results we need to get that balance back in place as opposed to just looking at it from a committee viewpoint only.

Audience

I am Alan Rabinowitz I am a card-carrying member of the ACLU. I even had my time serving in the office of Naval intelligence way back. But in any case thinking seriously of what I as a citizen feel about all of this it seemed to me that the thing I was almost most concerned about I haven't heard anything yet this morning almost with the representative said right now it has to do with how many governments we have and who is taking charge of figuring out who's doing what. I think somehow the Congress has enormous responsibility to make sure that the CIA doesn't have its own foreign-policy and its own… And NSA has its own… And saying let's to the rest of the government that it's none of Congress is business or the executive business is what they do. I think this is very unsettling. And it somehow it ties in a lot of the things about whose privacy is what this seems to me that there has to be really serious oversight consolidating away from this committee thing away from partisanship, away from the difference between Senate and House of Representatives something that really represents our government saying they are trying to do something for we as a people.

Brad Smith

The one thing I would say in addition to what Suzan said about the need for congressional action which I think is clear is that this isn't the kind of issue that by its very nature requires leadership by the president. Because as you would know you have some a different parts of the executive branch, the different parts of the intelligence community that have an interest when Microsoft sued the government last summer seeking the right to publish more information about the information we were providing in response to judicial process I was on point for the settlement negotiation last August which collapsed. One impression I gained at that time is that it is very difficult to negotiate a settlement when on the other side your different people who want different things. This is a classic case. The FBI has one interest. The NSA has another. I will say I do believe that president Obama has exerted real leadership especially since December and into 2014. He gave a speech in January the started to take some important steps. We were one of the many voices that said that that was a good step but it didn't go far enough. Interestingly the night before he gave that speech we got a call from the Justice Department wanting to explore settling the lawsuit that we filed. That was not a coincidence in my opinion. We were able to settle that case together with others in the industry on more favorable terms by far than what the government had been prepared to consider last summer. I think that was a reflection of presidential leadership. I think more recently you've seen the White House really take another step when it comes to a position on bulk collection that went beyond the president speech in January. So I am hopeful that we are going to see continued steps by the White House and then continued steps by Congress. I think it's a combination that is needed.

Suzan Delbene

Your comments about accountability and oversight are very very important. As a father is legislation we need to look at we also need to in terms of putting that balance back in place we also need to make sure that we have ongoing accountability and oversight, so that we don't end up in the situation we did to start with.

Audience

Gabe from your point of view this is primarily a federal and state government issue or is there any role for local government when it comes to these?

Gabe Rotman

That's a great question. I think fundamentally when it comes to solving these issues it's going to require I think as we have all said, it's going to require leadership on the part of Congress and the White House to fundamentally addressed this question of bulk collection. I work for the ACLU before I went to law school and one of the things that I worked on a lot was a series of local resolutions expressing concern with the patriot act and then a lot of the intelligence reforms that were taking place and they were extremely successful for a long time. It showed true grassroots concern with the balance tipping away from traditional concepts of American civil liberties to disprove security stance and I think there's definitely always room for that kind of advocacy. So yeah, absolutely.

Audience

Thank you. I am Scott David from here at the law school. Thank you for the excellent discussion. I have a question relating to asking for comments about the relationship with commercial and governmental actors in protecting individuals. You know individuals rely upon their institutions like armor to protect them and in this situation there is an interesting little tension between corporations which are in the business of making money and nations which are in the business of protecting the citizenry. Nations aren't able to be global intrinsically because of that as well as much as corporations are. The question really relates to looking at NSA collection, looking at the pressure of collection as a kind of a Moore's Law of what is going on with information, the increase is exponential my kids have more access to more information than presidents to the past right so when we look at the excuses they were used for the rationalizations that we use for the NSA was the business records exception kind of notion where this bulk collection kind of idea is there where those were I think it was a stalker in a moonshiner where the criminals in that case so essentially by applying that you criminalized population. So the question is if you start to look at the NSA activity as compulsory life logging, that is meant to be funny. But if you start thinking about it's not that funny. Because what they're doing is some people at Microsoft have experimented in life logging, essentially their life logging but it's compulsory. An interesting notion if you think about what happened in the past with the mail, with telegraphs and with telephones there was a complaint about privacy in every one of those technologies and we used rules and technology together to decide to keep their promises about privacy. It used to be was mostly default because of secrecy. Secrecy is dead. But privacy doesn't have to die. And so I wonder if you could talk about the relationship between government and commercial actors in terms of maintaining those promises and those promises made to individuals and how we can force those promises because that's where trust will come in. Thank you.

Brad Smith

Well there's two concepts that I would offer. First I think we need to recognize the fundamentally there is a broad privacy issue and has two crabs and that's a point one does need to think about how to have spent together. One half is fundamentally about the relationship between citizens and the government that is what we’re talking about when we talk about surveillance. The other half is the relationship between consumers and companies. And yeah there are some in our industry who say no I just want talk about the first half. The second half is of I came to this meeting. We have to recognize that both are germane. They raise important questions that the public increasingly has. And there are probably some principles that can transcend both halves. That is a discussion that needs to move forward. Second I think there is a more specific question which is when should a company that has information about a person get that information to the government? This is a question that increasingly was asked in the wake of 9/11. Our view is a company, my view is the General Counsel of the company is that we should turn over information about a person when the government serves legal process upon us and we should assess the legal process. We should determine whether it's valid and if it is valid and we must comply then we should do so. But my view, our view is accompanied for 12 years has been quite consistent. When the government knocks on our door and says that they want us to give information to them that goes beyond legal process because the law doesn't permit them to compel us to turn it over then the answer is go talk to Suzan DelBene. Go to Congress. Go ask Congress to change the law, have a public debate. Let's not turn this into an exercise that sets the law to one side and goes around it.

Suzan Delbene

And I think we don't want people to be surprised. We want people to understand the framework that is in place and they can make decisions about their data, where it stored, whether it's kept are not kept, etc. I think people had assumptions in some cases about what was happening to information. Frankly, even Congress had an assumption on information and some of the assumptions were correct. And so we need to get that framework back in place. We need to make sure that we have the oversight and transparency in place from a Congressional standpoint. The laws are clear so that the public understands the law and how it works for example simple things like a war and standard. And if we can have that in place and that individuals can also make decisions about technologies they use or don't use and where their information might be.

Gabe Rotman

If I could jump in will quickly one of the heaviest lifts when it comes to advocating around these issues is the defense you hear a lot from especially the intelligence community is when it comes to bulk collection nobody is listening in on your phone calls. Nobody is reading your e-mails. It is all metadata. It's all transactional information about which number, who calls you, who you call, when, how long and the argument is that that information is a very sensitive. And I think fundamentally when it comes to programmatic surveillance as opposed to the retail surveillance that use on the cases were initially the courts found that there wasn't a fourth amendment search when the police looked at who called you are who you called there is a fundamental difference not in degree but in kind between wholesale surveillance of metadata which is extraordinarily revelatory about personal information and the type of investigative tactics that produce this false dichotomy in the law. So that content versus metadata distinction in today's society just doesn't fly anymore and I think that's an important thing to get across.

Audience

Hello my name is Anne Woodliff. It is good to be here. Thank you. The panel discussion has been very interesting. I have a question. I think it is been a wild ride since I've seen you. I remember in the past a business software alliance and the protection of software and piracy concerns. And the three points there were dealing with educate, legislate, and litigate. And it was very much of a global organization. And I wondered if there are any alliance is now a consideration or being formed to help from the commercial side build in the privacy and then work with the legal implications? If there have been any discussions in that area? If that makes sense?

Brad Smith

Yeah they're definitely have been some discussions especially I would say bringing together individuals and companies in North America with individuals and companies in Western Europe. I think that's where one finds the easiest and fastest opportunity to build a coalition that crosses national borders. It is not always entirely easy just because frankly so much of the tech sector is based in the United States but you certainly have telecommunications companies and other companies in Europe they're looking at this as well. I do think ultimately if there is going to be any convergence of regulatory principles is most likely to come across the Atlantic. We have a lot of shared values, a lot of shared norms, the fourth amendment of the United States Constitution really has its heritage in the United Kingdom and English law. There are similar commercial considerations. They are not always the same because there's a discussion in Europe about whether there should be quote a European cloud that would be built by European companies. But I ultimately think that most people who are prepared to look farther ahead are prepared to recognize that governments ultimately will assist people not by the country they came from but by the commitments they make. Therefore it makes sense to talk about, commitments.

Audience

Representative, with passage of the USA freedom act be completely curative or is that just start? Do we need to look at maybe the patriot act, the electronics communications privacy act? Where would that take us?

Suzan Delbene

: Well the USA freedom act would alter the patriot act section 215 which is the bulk collection area so it would make a change and I think back to the kind of ongoing being good stewards of policy then we've got to see how those changes would work and if they work or if they don't work and make adjustments going forward based on that. Because I don't think as I said Congressman Sensenbrenner from Wisconsin didn't think that the language in the patriot act would lead to the interpretation that has happened and that has been implemented to date so that's why he is a cosponsor and says we need to update it. I think we need to update it. We will see if that works or if it doesn't but if we have the transparency and accountability we have the oversight we can say hey we need to make other adjustments going forward. And I think that way about privacy laws. I actually think that way about a lot of our legislation. We could do a better job of learning what's working and what's not working and keeping things up to date. But this be a great place to start.

Audience

Hi I am Jamala Debelak I am the technology and liberty director at the ACLU of Washington. I want to go back to sort of where the discussion began. It was set up looking at national security and privacy and I think what I heard echoed throughout was a little bit of those two being at all odds are that we have to somehow do a balancing act. I struggle with that because then I feel like privacy is always going to lose. We are in this post-9/11 world where national security takes on such importance. But I wonder if we can maybe reframe the discussion and see those two things is not at odds? And I would love to hear what you would say about that. So sore from the corporate and I think building in security at the hardware and software level can mean more privacy. And at the legal reform table if we look at bulk surveillance government has argued that this helps make a secure but it also takes away our privacy but there is a way to argue that the bulk collection doesn't actually make us more secure that there is so much information the government can't effectively coal through it all. So maybe bulk collection doesn't make us more secure. So how can we find a way for privacy and security to converge and not be in opposition? To have any thoughts on that?

Brad Smith

There's three things I would say. First you make an important point. There are times when security and privacy reinforce each other and they are not intention. When you make information networks more secure you also make the information more private that's number one. Number two, I think it's probably not possible to eliminate the tension in all circumstances. You can debate whether bulk collection is meaningful given the rise of big data. You're going to have experts who come not only from the public sector but from the private sector who will be very enthusiastic about the ability to use big data effectively. So I am not as bullish on that. Third, I do think ultimately particularly in the halls of the law school it is appropriate to perhaps that both privacy and security aside for a moment and talk fundamentally about what kind of legal system do we want to the country. Suzan's bill gets to part of this one up with the public advocate in the FISA court. But I think there is a number of questions that one can have a good conversation and this is not really being discussed today. Generally in this country we have judges who are appointed by the president and confirmed by the Senate. In this case some of those judges are hand-picked by the Chief Justice of the United States and require no confirmation by anybody to serve on one particular court the FISA court. Generally in this country we have court proceedings that are open to the public and when there is sensitive information is filed under seal so it can be managed properly. In this case we have an entire court that operates in secret. Is that fundamentally what we want in the United States? Generally in this country we have an adversary system so when somebody's rights are at risk they are permitted to go to court. They are permitted to stand up in front of the judge. They are permitted to argue their case. This is a court that operates mostly through ex parte proceedings and while a public advocate is a good step it's not necessarily the same step as letting other people stand up when their rights are at risk including a company like ours when our customers information that is being sought. And finally generally in this country you get to know what the other side is arguing and what that other side is telling the judge so you can respond and yet when we found ourselves before the FISA court we have sometimes found that the government's own briefs have been so heavily redacted that we ourselves do not know what they are arguing. So I think that there is plenty of room to say there is an issue about privacy. There is an issue about security but there is something actually even more fundamental than that. And I suspect if I read the mission statement of the ACLU I would find it described quite well.

Gabe Rotman

So I would say two things I would agree completely with the way you framed it. I think that when again coming back to this notion of individualized suspicion that is not just about protecting civil liberties. It's about focusing scarce investigative resources in places where they're going to bear the most fruit. When it comes to bulk collection, now I'm not a mathematician or a computer scientist, but the basic idea with bulk collection is that if you get everything and you have enough data points then needing uses data points, you can make predictions about what something is going to look like in the future. The proponents of bulk collection are explicit about this it's very much like pre-crime and minority report. It's the idea that if you know what something looks like in the data when it happens then you can see it again in the future. It is very effective when you've got a lot of data points when things happen a lot of times and they are relatively simple. So your consumer habits can predict the fact that you just found out that you're pregnant. A company can send you advertisements for diapers that's a real case. But when it comes to very complex and one off events like a major terrorist attacked just mathematically it's more difficult to predict that from occurring. Now whether or not those predictions can be made the question any to ask yourself is your faces scarce resources were shrewd but those resources? And that raises the second point which is the fourth amendment requires no warrants to issue but I'm probable cause. What does that mean? It means that an investigator, law enforcement agent, needs to be able to articulate at least some factual basis to believe that there's criminal activity underway, and with bulk collection that there is that completely on its head. You don't need to provide any factual basis to believe that criminal activity is ongoing but the argument is we need to sweep all of this up so that when we need to look at it we can look at it quickly. At least one of the courts that has looked at that particular argument has said that it is fundamentally antithetical to the notion underlies the fourth amendment. So I do think that privacy and national security whereas the privacy and national security and the mind run of cases will not actually be intentioned.

Suzan Delbene

And I think that the issue, one of the big issues right now is that people's assumption on how the law works, what the law is and how their privacy is protected right now doesn't seem to be holding water when we are looking at things like bulk collection. They are saying hey this is not what I would've expected. That's what I think the law says etc. So as we talk about what the right thing to do as going forward when we speak of it from a legislative standpoint and from an implementation of that legislation standpoint it's important that people understand what their rights are and that those rights are upheld in our laws. And that's really when we talk about putting balance back between civil liberties and national security etc. it's helping make sure that people do understand the law, understand that maybe there should be a warning to get information and the people understand there's going to be a warrant as opposed to some information not requiring a warrant for access, things like that. That's very, very important that we get that back in place because I don't think as I said earlier people didn't realize it wasn't in place in many cases and it's so important for us to do that. And then as we were talking about as well continue to see how that implementation is going forward and understand what we need to do either as technology changes and there are new issues that we can't understand today that we might need to address in the future or if we see that laws that we put in place to try to protect privacy aren't doing what they need to be doing and we need to do something different.

Audience

My name is Peter Fightmeyer. Thank you for discussing this today. I wanted to ask the question of about Edward Snowden and what was known before? What was the level of concern before his revelations? I find it very hard to parse all of the media information I get from him being vilified as a traitor to honored as a whistleblower and I wanted to have you comment about that.

Suzan Delbene

Well I think there were things that I spoke about earlier the electronic communications privacy act things that were out of date that we knew were out of date. We started legislation to try to address these issues as a things that predated any information on the NSA. Clearly the information that we have a humble collection etc. that is information we have and that's information we need to ask John to understand what we can do to make sure that our laws are functioning and protecting privacy and that has been the focus of this conversation. The focus of the conversation we've been having in Congress is what do we need to do? We obviously look at what we might need to do from a legislative standpoint to address that but I think part of the conversation we are having collectively, everybody here is what do we need to do collectively whether it's in the business community, the public etc. to make sure that we have the transparency and oversight going forward to address these issues.

Brad Smith

I would just add that yesterday the Guardian and the Washington Post received Pulitzer prizes. One of the stories that the Washington Post publish that earned that prize was at the end of October. That particular story reported that the NSA either by itself or in collaboration with a foreign government had hacked into the cables carrying data between the data centers of Yahoo and Google. I think in our industry we knew what the government was coming to us through legal means. We assumed that that was the only thing the government was doing to get information from us. That story sent in earthquake through the tech sector because it caused people to ask what else is going on? What other companies are affected? What other means are being employed outside legal process and the rule of law? And I don't think that the tech sector is going to feel good about the resolution of these issues until it is clear that the US government is going to stop seeking to hack its way into the data centers or cables of US companies regardless of whether that's within the territory of the United States or somewhere else in the world. And that's what people have been waiting for from Washington that hasn't yet come. I do think that this legislation would be a step that would help.

Gabe Rotman

Let me just respond to the specific question about sort of what did we know before Edward Snowden released his documents? He basically confirmed what I think a lot of folks had suspected witches that the change that was made to section 215 of the patriot act, the business records section and there were several changes over the years but essentially what it did was it made it conceivable that the government could go to the FISA court and say something like please produce all the telephone metadata over a certain period of time. There were a lot of concerns about that because of the way in which the actual statutory language have been written. In addition to that there was also language in there that also made it so that the corps had to presume that an application for this information was legitimate and the Snowden revelations a laser comes to the business records section of the patriot act confirm that that section with the government had done. They had gone fullbore towards that interpretation which had been referred to by Sen. Wyden and others famously before this known revelations that confirm that that was actually occurring. These are concerns that have gone back, this is in just the last couple of years. These are concerns that have gone back to 2001 and 2002 that these changes to the law would result in this kind of bulk collection of data.

Audience

My name is Ryan Taylor I am a law professor here at the UW. This is such a great honor to have you each here. Bill what a wonderful job you did assembling this group and subsidence believe this conversation is been amazing. And also twitter is going crazy on this including your colleague Justin new mosh is on twitter and is engaging with us today from all over the world. In a very positive way. And so my question goes back to Bill's earlier comment about heart bleed. At the time there was this story I think it was by the Boston Globe I can remember that claimed that the NSA knew about heart bleed for a period of time they didn't say anything about it so that they could exploit this vulnerability in parts of the Internet. I guess I sort of think about and maybe that's not true, the NSA have denied it her. We don't really have very good information. But it is raised an interesting question which is how much can industry trust the government with exploit that they find themselves. And this is a question on twitter actually if you find that an exploit on your network or an exploit within your software can you really go to government? Which at one level you want to because you want to make sure that you have their help in protecting our networks and protect your computers and software. But do you have any guarantee that they are not going to then turn around and exploit that vulnerability for their own sort of surveillance ends. So I wonder whether it be appropriate for instance to have a limitation that said if you industry or individual give an exploit to the government they may only use it to secure our infrastructure and may not use it for surveillance purposes or something along those lines? You appreciate the question. I just wonder whether anybody have any thoughts about how to mitigate that issue?

Brad Smith

Well I think it's fundamentally a question for Congress. US should there be a role? I think what you really has to should there be a law? And whenever you should there be a law that is actually a question for the people who make the laws. It's also very easy way for me to duck the question and referred to Suzan.

Suzan Delbene

Well as I said earlier I think as we continue to discuss this issue and mobile scenarios understand problems just like the ones that you are contemplating here then if there is something that we need to legally to help address that then we should look at what we need to legally to address that. If it's something, not everything, there were laws in place for example the patriot act where people thought they had contained the issue had been very clear and defined and that was a workings we need to adjust that. And I think this is going to be an ongoing dynamic conversation because they're going to be issues the co-op and as I said before there are things that we are not contemplating right now that are going to come up in the future and that's why being on this, being good stewards, having the right oversight and information is going to be important because there's probably going to be something that we are going to need to address going forward that maybe none of us are talking about. But I don't know that are always, some things will require legal changes to address it. There may be other things that we maybe have to understand and practice how we address them going forward and its figure out which side or what needs to happen to address any particular situation.

Audience

Hi my name is Chris T. I am a law student here at UW. Thanks again for coming. I am kind of going to try and shift the conversation a little bit. It was mentioned earlier that a lot of information is available to young people now than there was to presidents. But there's also a lot more information given to young people obviously I am included among that and if you have any kids you just look at their profile. So I was wondering if there's many conversations regarding the generational distinctions about how they respond to this because much of this privacy and trust is based on how much you're willing to give and whether or not you here more the outcry from older generations that just didn't grow up with this like I grew up with MySpace and stuff and so knowing that people can always look at my pictures little weird but I'm kind of used to it. And whether or not that outcry from the distinction is based on a shame perspective to someone looking at my information or if it's based on a fear of criminalization that might be imbued if you get pulled over, something practical that nature?

Suzan Delbene

This has come up a lot in terms of what sort of differences, generational differences in terms of how people view privacy. But I think it comes back to, and I probably fall on the older side and fortunately on that one, but I would say that the fundamental important piece of this is due people understand their rights and can make decisions within those rights question Mark so if you want to post information up on a Facebook page or tweet about something, etc. that is your decision and you should understand what might happen with your information and make your decision accordingly. That's why we have privacy policies that are posted in organizations give those out so that people can have a sense of what might happen with their information and make decisions accordingly. The question is are people able to get a good description of where their information might be accessed how it might be used, are the laws in place to protect that that people expect there to be in place? And that's what we need to do I believe is make sure that those laws are in place so that people do have that good understanding and expectation that their rights, their fourth amendment rights are being protected. And then if people want to share information and do things with their information that's their personal choices don't necessarily think that it's one or the other. I think that individuals make different decisions about what information they want to share don't want to share but the legal framework needs to be in place and people need to understand that.

Brad Smith

I think there are two concepts that are extraordinarily empty important here. The first is fundamentally a constitutional or legal question. It was framed I think very well by justice Sotomayor In 2012 very short concurring opinion in a case called US versus Jones. She basically referred to the fact that traditionally in the United States secrecy was considered a prerequisite to having a reasonable expectation of privacy. In other words for many generations if you said you wanted to keep something private what you probably were saying is he wanted to keep it a secret. As justice Sotomayor suggested in that opinion perhaps that definition of privacy has changed. I believe it has. And I believe that it's a younger generation that has redefined privacy. If you want the best illustration released a good illustration of it today is a new definition of privacy that is being driven by people even younger than you. It's really people in their teens. And it's a dramatized in snap chat. Now here is a company that has a CEO who is 23 years old who has turned down a three and a $4 billion offer to sell his company. What is the value proposition of this company? You can send photographs to your friends will be able to view them for an instant and then the photographs will disappear. In effect I think that the new definition of privacy means that people don't want to keep information secret but they do want to ensure that they control who they share the information with and they want to control what those people use the information for. There is a fascinating keynote that the CEO of snap chat gave in Los Angeles a few months ago. When he talks about the three value propositions for his company one of them never uses the word privacy but it would read like a privacy manifesto. And I think what this really underscores is that the meaning of words is changing but some of these concepts have just as much importance in this new era as they have in the past.

Bill Covington

If I could speak to that very quickly. I direct the technology law and policy clinic. I am 64 years of age. I was in college during the height of the antiwar and civil rights movement and our default was high alert. Whenever the words government and any form of information acquisition came about. I don't find that in my students today. I find it there is much more excepting about the fact that there is information out there and that information is going to be taken. And so I think that there is a completely different dynamic. I think it's very much generational. And I think there will be much more acceptance of the things that are being done when it comes to information and perhaps those of us who come from a different age in a different political environment.

Maybe we get some the people, oh go ahead Jesse.

Audience

My name is Jesse Wu. I am a UW law alum. My question is I am seeing a pretty common thread about transparency and that is one of the main ways that we want to combat this slide to the surveillance state and I think part of that is that because of this perpetual war on terror we have resigned ourselves in part two the notion that we are going to be surveilled to some extent. That is part of the balancing between national security and privacy. As we have been talking about earlier Snowden wasn't the first one to reveal potentially what was going on with the government. He did it in a very media savvy way and that exploded this conversation. But as we have said this is out there before and so I am worried that it is transparency only works when people are at a heightened awareness we can't always be at a heightened awareness so are there other ways possibly structural reforms you can think of that can be in place when we are not all freaking out about privacy?

Gabe Rotman

I will just address one piece of that. So one of the biggest problems and one of the biggest factors that led us to where we are today is the fact that the legal reasoning that underpinned the various surveillance programs that were disclosed by Edward Snowden that legal reasoning was secret. This is one of the fundamental issues with the FISA court which I think was doing a very difficult job in a very difficult situation. The fact that the legal reasoning in this doesn't just apply to surveillance it's all of the legal reasoning that went into the various counterterrorism efforts the post-9/11. The fact they are able to keep the legal reasoning itself secret separate from the application of fax to law results in shoddy legal reasoning it stands to reason. And that shoddy legal reasoning has led to all of these things that we are now finding out about. So that is one piece of the transparency puzzle but it's a crucial piece of it and it's in the USA freedom act and it would require the disclosure of fall FISA opinions that do apply fax to law with reasonable safeguards to protect classified information but the actual legal reasoning itself, the interpretation of Smith versus Maryland or US versus Maryland, these cases that government has relied on to justify wholesale bulk collection those finally would be able to be read teamed by lawyers out in the world and that's crucial.

Audience

My name is Patricia Giuliani. Representative Delbene you said that 217 congresspeople voted against the amendment. And it's lovely to hear that there was no actual red blue bias on the board. But I am wondering what is the very compelling argument against all of this?

Speaking as a dinosaur.

Suzan Delbene

The amendment was something I think a lot of people didn't have a good understanding of so I would say when that vote took place we had many members of Congress who hadn't done very much research on these issues and so that might have been part of the reason why we have the results that we did in that one. I think a lot has happened since that vote took place in that vote was incredibly close to mean 217 to 205 so the question is if we have legislation now like the USA freedom act come to the fore you might see different results to that. So there is conversation. There are a few different pieces of legislation out there. I support the US a freedom act I think it's the most comprehensive piece of legislation we have right now. And as I said before I think there are other pieces we also need to address that go beyond just the Patriot Act side but also things like electronic communications privacy act reform etc. it also needs to be done to address other issues of privacy. Those pieces of legislation need to start moving forward. We have had discussions about the men in our committees in judiciary. The intelligence committee as having discussion to. But now I think it's important that we continue to move those forward and actually get legislation on the floor so that we can get a vote and see where folks stand. I actually think that the a mosh amendment was probably an early indicator of where things might lie. I think you might see different results if that same piece of legislation came forward today. But I think we actually have done a better job now in legislation like the USA freedom acts to really get at the heart of some of the issues because there's been a lot of discussion and learning going on since that vote took place.

Bill Covington

Can I just ask this? There seemed to be sort of a groundswell that led to conversation about Obama care good or bad. Is there a similar groundswell that congresspeople are seeing on the privacy issue? Has it reached that particular level or are there things that are keeping people from really wanting to engage in a conversation?

Suzan Delbene

I actually think that we have seen a greater and greater breadth of conversation going on now in the House and the Senate. It started out as something that was very much focused on intelligence and intelligence community, intelligence committees. Even early conversations on things like cyber security were very focused on intelligence but you also saw the broad public getting engaged and involved. And now I think we are seeing the public involved. We have the judiciary committee which is looking at it kind of has that oversight not just on intelligence but is also looking at it from a civil liberties standpoint. That's change the conversation. And using the political conversation change even when the first folks came out saying who were supporting some of the intelligence gathering that was happening, some of those folks of change therapy and even in the last few months so I do think it's a broadening conversation at that's good but also hopefully leads to legislation getting enacted.

Audience

This is more of a technical question. I heard some government officials contradict themselves over a question like this. Can metadata or bulk data be reduced to knowing point-to-point specific information saying within the country or between the country and outside the country or out to the country coming back into the country?

Suzan Delbene

I don't know that that specific question I can give you an answer except to say that people's understanding of what metadata included in doesn't include has been fairly broad and that it is clear as well in the NSA's case their places they went and looked at information beyond just metadata and so as we look at legislation it's important that once again we realize that this is about access to information and bulk collection of information and make sure that our laws understand that and that privacy is protected.

Gabe Rotman

There are two sort of separate buckets in terms of these surveillance programs. There's the stuff that has come out of the business records provision of the patriot act and there is also the for and targeted surveillance which is under section 702 of the FISA amendments act. And the idea there was Congress finally approved, they codified the authority of the intelligence community to engage in surveillance as long as they are targeting foreign persons not on US soil. One of the questions though is how easy or difficult is it to ensure that a you are targeting a non-US person and be that non-US person is not on US soil. And so there has been some concern that because that exercise can be relatively difficult there's going to be a significant amount of over collection about US persons either in the US or overseas.

Audience

My name is Ian King I am the geek who wandered in here. I am actually from the information school where I am a PhD candidate. I also spent 12 years at Microsoft in test development. As I hear this conversation people have touched a couple of times on well we can use these tools to protect our privacy and as we see with heart bleed exploits the tools fail us. And what's really pathetic about the heart bleed exploit is that it is a very simple failure to balance check on an input. This is one of the dumbest most sophomore bugs that you can write into a piece of software. We have agencies that try to make sure that we breathe clean air and drink clean water is at times perhaps for the government to step up a little more and ensure that the tools we are using to protect our civil liberties as well as our business and commerce are actually doing the job we expect them to be doing?

Brad Smith

I will say given the kind of discussion we're having today it is easy to lose sight of the fact that there are actually parts of the government that do help with this on an ongoing basis. They may not have the kind of clear or exclusive mandate that you my advocate so I'm not necessarily here to say that it does everything one might consider should be done but there definitely are many times throughout the year when parts of the US government perhaps especially FBI plays an important and helpful role in either identifying or in particular investigating and pursuing exploits on the Internet, the creation of malware, the spread of bot nets etc. So if I were to just think about your question more broadly yes the government does have an important role to play in ensuring that cyberspace is safe in the same way that has an important role to play in ensuring the physical world is safe. And much of that is done today. There are opportunities for improvement. I think the key point I would make is whether we are talking about cyberspace or physical space it all should be done pursuant to a clear legal framework, public transparency at least to the principles that are being applied in the same Democratic protections we have long enjoyed.

Audience

You keep mentioning transparency which is a really big word. And I think about what is happening in Congress itself. Congress has delegated certain people such as Sen. Biden, Diane Feinstein as being the people only who get information and it is From the rest of Congress so how do we deal with that?

Suzan Delbene

Well I think I talked a little bit about committee jurisdiction one of the things that someone coming in from as a new member of Congress coming in from the outside looking at some of these issues you see the issue and the scope of the issue and think about what we might need to do to address that issue and yet it's kind of parceled up and pieces of the issue are parceled up by committees based on their jurisdiction. And if I said to you here is an issue my way to tackle the issue you would probably look at it more comprehensively and say here's what we need to do. And so you've got people who are looking at pieces of issues and I think that's part of the challenge. We need to look at this comprehensively. We need to look at it from the electronic communications privacy act side. You need to look at it from an intelligence side. You need to look at it across the board. And yet that's part of the challenge that has happened in the past and I do think that one of the things we are seeing in this conversation now is it's kind of, but that jurisdictional level and we are having a conversation on it from many different angles which is important and hopefully leads the legislation that helps us really get in place what we want to address the broad issue not just a piece of the issue.

Audience

My name is Judy Bendage by the way. So if I'm understanding what you're saying which are tackling with your piece of legislation is truly a small part of that. We have Congress who is supposed to make budget decisions over what national security folks get. We have Congress not even being able to understand what they're getting except for very small few who can share that information with the rest so that's a totally antidemocratic process and how do you propose to deal with that?

Suzan Delbene

Well I think it may not be just one piece of legislation. I've already talked about to. We talk about Expo reform or electronic communications privacy act perform. We talk about the USA freedom act. We talk about Eric wedge the ongoing conversations going forward about cyber security and what we need to do about cyber security. There are a lot of pieces of legislation that some involve privacies some are almost entirely about privacy. So we need to look at all of those. So I don't necessarily know that it's one bill per se but if we are looking at these issues we need to understand where there needs to be a legal framework that is put in place and what pieces are problematic for us. Now clearly on the intelligence committee they are dealing with classified information a lot of cases so there are unique scenarios where folks on that committee have access to information that others may not and it's important when they're looking at that that they exercise authority there but that's not true of all pieces of information and sometimes were talking about broad issues where the specific piece of information isn't the critical thing for us to know it's the result of what's happening and how information is being accessed. And I think as we talk about things like the NSA it's that brought conversation that has led to legislation like the USA freedom act because we are seeing bulk collection we can argue about the individual pieces of data but we know that the NSA at least in my opinion has gone beyond what folks anticipated in terms of access it is gone beyond targeted information in terms of bulk collection and we need legislation to change that and put the right level of access back in place which means if you want information has to be very targeted. You have to articulate why you need that information and that is something that right now hasn't been happening.

Gabe Rotman

And I think that's exactly right. There are a lot of different problems out there that have occurred over the last 12 years. Even the USA freedom act it is a really good support in addressing one of those problems which is that the government, the intelligence community has said we don't need to tell you why specifically we need this information that we are asking you for. The USA freedom act in a pretty competent the voice says know if you're going to come, even if it's in front of the FISA court you need to give a specific facts. You need to be able to articulate why you need this information. And that really is a shift from where we have been in it is an important shift.

Bill Covington

We are almost out of time and I just wondered if we could just get each of our panelists maybe share some closing remarks. And I wonder if we could start with you Gabe and work her way down.

Gabe Rotman

Sure I think I would just echo everything that has been said already which is that I started off with the fundamental challenge that we face which is that since 9/11 we have seen a dramatic increase in both secrecy and discretion on the part of the intelligence community and national security agencies. And those two things we need to address. We need to ensure transparency. We need to ensure that the justifications for what the government is doing are made public so that we can judge for ourselves whether they hold water and we need to restore checks on executive authority when it comes to these surveillance programs to again just bring us back to the fundamental value that you shouldn't be investigated unless the government can articulate why it is investigating you.

Suzan Delbene

I just want to thank all of you for being here and thank my colleagues for participating. This conversation is how we are going to address these issues and how are going to solve these problems. And sometimes people say hey I don't have a voice and the reason we are at the place we are in legislation is because people do have a voice and people have been responsive and engaged and I would say just as we are discussing this is a going to just be one piece of legislation, one bill. This is also going, if we looked at this 10 years ago we might've had a different conversation if we look at this 10 years from now we might have a different conversation. And so the important pieces for people to stay engaged to be part of the processes we work on these issues. And then we can continue to move forward. That also continues to put pressure on the legislative process to move forward because it's not always the fastest process. But things like the USA freedom act, things like Expo reform, things like ongoing conversations about geolocation these are all going to be important conversations and so I'm happy we had this conversation today. We talked about some legislation that is proposed right now but I hope that we continue this conversation going forward because I think it is going to be important for us to get the right thing in place on an ongoing basis.

Brad Smith

I definitely want to thank Suzan both for helping to bring us together and also for all of your leadership on all of these issues. I think it's especially interesting in closing to step back and ask ourselves this of the first 14 years of this century what are some of the trends that clearly are the most important and most different from the century that preceded it. Certainly the rise of terrorism is a global phenomenon and a threat inside the borders of the United States is a feature of the 21st century. Certainly the digitization of all of the information on the planet and about ourselves is another one of the major trends. These are both hugely important changes. Yet if you think about all of the changes we've had as a country we have always been able to ground ourselves in the freedoms that are enshrined in the Constitution and in particular in the Bill of Rights including the fourth amendment. Ultimately it has been the responsibility of every generation to think about all of the changes around us and how to adapt to them while preserving these fundamental freedoms. I think that is the question before our generation. Is the kind of question that I think almost uniquely requires broad public discussion and debate and leadership by people in Congress. So I think this kind of conversation is extremely helpful. It is great for everybody here to have been a part of it and I hope that we can all encourage more thoughtful discussion in Washington State and across the country because this will be one of the defining issues of our time.

Bill Covington

I would like to thank our panelists. We are now adjourned.

Last updated 7/11/2014