001703	04bankston_wmp_a_16.wma
000000	ERIC GOLDMAN: If I can get you guys to join me here, I'm actually going to exercise facilitator privilege with an observation and a question and then we'll turn it over to the audience.
000010	So my observation first of all, let's assume for a moment that the allegations made by the plaintiffs in these various cases are true.
000016	I think it's fair to say that there's been some very serious wrongdoing done and some grave injustices.
000023	But the observation I make is that this battle has spilled over into a multi-front effort, right.
000029	We have it going on in the courts and lots of different courts.
000033	We have it taking place in Congress.
000034	We have it taking place in some degrees in administrative agencies.
000038	It strikes me that with respect at least to the topic here of social justice and civil liberties, it is a multi-front battle and perhaps necessarily so.
000050	But I hope everyone caught just how complex the battle is here.
000053	I was having a tough time keeping it straight.
000057	Clearly a lot of work is being spawned to push back on some very serious allegations.
000105	My question for you and I want to stitch together three different data points.
000110	One data point here is that we have the government using the telephone companies as an intermediary to capture data that they find valuable.
000118	We have two other data points I'll offer up.
000120	One is that the government has used the airlines as a data repository and has made requests to the airlines to transfer over information about who has been flying them
000130	so they could do similar data mining for terrorist profiles.
000135	And a third is the request that came to the search engines over the last year or so in the battle against Internet porn
000143	where the government asked the search engines to turn over very extensive repositories of search crews made my searchers
000152	as a way to figure out what people were doing with searching for pornography.
000158	And there is an observation and then a question.
000202	The observation is that the government has proven over the course of centuries that it has an insatiable desire to know more about its citizens and what they're doing and who is doing what.
000216	The question is assume for a moment that these entities are being asked to hand over data to the government much like the telephone companies in this case.
000227	What are these intermediaries supposed to do, the airlines, the telephone companies, the search engines, when they get these requests, some of which might be prima fascia illegal?
000238	Like we might have seen in this case and in other cases where they're ambiguous but coming under the authority of government inquiries.
000245	What are the intermediaries supposed to do?
000247	How are they supposed to cope with the fact that the government is making these requests for information about its citizens?
000257	ANN BRICK: To coin a phrase, just say no.
000304	The telephone companies, the airline industry, the ISPs all have legions of lawyers.
000310	Believe me we can tell you the ant legions in the phone companies because we're dealing with them.
000317	The government has the power to require the turnover of records and there's a process for that.
000323	And the telephone companies or the ISPs or whoever can go to their lawyers and say do we have to turn it over.
000334	If the answer is no then the next question is well can we voluntarily turn it over.
000341	In the case of the telephone companies the answer is no.
000346	In the case of the airline industry it's probably a little murkier.
000352	In the case of the ISPs you get into a lot of interesting questions about well does state law govern, does federal law govern, are there commerce clause issues.
000404	But the third question is must we, can we, and the third question is should we.
000412	And protecting privacy and holding the government to its obligations to show that it's authorized to glom onto all this information is important if we're to be protected.
000426	KEVIN BANKSTON: Yes I mean the real easy answer to that question is follow the statutes.
000429	Only give it out when the statutes require you to, when the process that they're giving you matches what the statutes require.
000437	It's worth pointing out that AT&T admitted at oral argument.
000441	We didn't really expect this, but we were glad of it.
000444	They said to the extent we did was alleged, we cannot of course confirm or deny that, but to the extent we did and we add it was at our discretion.
000454	We had the choice to say no.
000457	They did have the choice to say no and they should have taken that choice and made the right choice and said no.
000503	But since you brought it up, I wanted to bring up another fun issue, the search terms privacy problem
000509	and the publicity surrounding Google fighting a subpoena from the DOJ for it needed data for an expert in a civil case.
000518	In that I think Google got a lot of good press out of that as a staunch defender of privacy.
000525	I think that is a testament to the skills of their press department.
000530	That was their primary reason for objecting to that and the main reason that the court agreed with them was that it was a hugely burdensome request of dubious relevance.
000543	But the more important question of what process does Google require when law enforcement or intelligence investigators come to them in secret and ask for people search logs
000555	rather than massive huge requests for search logs for some other litigation.
000559	But the day-to-day compliance we still don't know.
000604	Google actually brought it up in briefing that well you know the law seems to say we might need a warrant, but it seems to say we might not.
000612	We don't really have an answer on that, but we shouldn't have to guess about that in responding to this subpoena.
000619	So I mean the bottom line is the law is being made in practice in secret meetings between Google and the DOJ about what kind of privacy protections apply to our search terms.
000630	And we have no idea what those negotiations are resulting in.
000634	And I think that's just another example of how these intermediaries who have all of this data about us
000639	the real risk it poses when decisions are being made in secret about what our level of privacy is really in that information.
000650	ERIC GOLDMAN: I'll just say when I was in-house counsel I got a few requests from the government for information.
000656	All of them uniformly were illegal, unquestionably.
000659	So pushing back however is hard when the guys have very large guns.
000704	Question from the floor?
000705	Yes ma'am?
000707	AUDIENCE QUESTION: I think I know the answer to this and I'll probably agree with the answer but it needs to be asked.
000711	For somebody with a hammer every problem looks like a nail, so the saying goes.
000716	So from a policy perspective in terms of affecting and preventing the government in performing these searches, how do these cases move that forward in a wider sense?
000726	And I'll put two things forward with regards to that.
000729	One, the likelihood of winning before the Supreme Court, not in the *** case, I think that's a different issue.
000734	The likelihood of winning before the Supreme Court on this issue in light of the two recent Supreme Court appointments.
000738	Point two as you mentioned the fact that this spurred a series of legislative measures to try and essentially shut you guys down before you even really get started.
000748	And did that actually kind of provide leverage to the conservatives who could then come back and say we're not concerned with the people who support this topic?
000755	Could then come back and say oh we were just trying to protect America, which may ultimately have closed down some of the more receptive representatives getting elected to the House
000805	where there could have been broader protective legislature that might have gotten through in the absence.
000810	Can you speak to those issues?
000813	BANKSTON: Very briefly I think I understand the question.
000816	I mean basically it comes down to everyone's afraid of terrorism.
000819	We want the government to take whatever necessary steps it can take to keep more buildings from blowing up.
000825	I don't think intercepting everyone's communications for that purpose is constitutional.
000829	I think it's a fishing expedition that's plainly not constitutional.
000832	But certainly that fear has an effect on how people perceive this.
000837	I don't think that the White House is doing this as some sort of broader plot to become Big Brother and take over the country and stifle dissent.
000846	I think they are probably doing it for the right reasons, but that doesn't mean it is the right way.
000853	And in terms of convincing Congress otherwise, again I think it's unfortunate but I think that will significantly turn on how the elections turn out tomorrow.
000904	And as far as the Supreme Court, I'm just not going to go there.
000907	I'm not going to predict.
000908	I just can't do that.
000909	I'm not going to predict how it's going to go.
000911	AUDIENCE QUESTION: My question is specifically in terms of the political calculus; are the lawsuits the most effective way of affecting change in this realm?
000918	Are the lawsuits specifically undercutting other ways that may be more effective?
000922	KEVIN BANKSTON: Absolutely not.
000923	I mean if there were no one going to vindicate these peoples' rights, it wouldn't be an issue anymore at all.
000928	Because unfortunately I think the public, probably because of the terrorism subject matter, hasn't been very engaged on this issue.
000937	Plus to the extent Congress can change the law anytime it wants to, the only way we're going to make change in this area is to get a good Fourth Amendment law in the books to stop it.
000947	So I don't think it's counterproductive.
000949	I would also add just on the efficacy of the program, you know has it been catching terrorists?
000955	Other than vague platitudes, we don't really hear anything about how effective it is.
001001	The one hard data bit we've heard on its effectiveness comes from the FBI agents speaking off the record to the press about the quality of the tips they've been getting.
001013	And they have been very poor.
001014	In fact so poor that when they get a new batch of people they're supposed to investigate based on the NSA tapping, they go oh great more calls to Pizza Hut 
001023	because they have to investigate Pizza Huts and they have to investigate school teachers and they have to investigate average guys who were just renting a car.
001032	But for some reason in the NSA's crazy software space you know that raised a red flag.
001039	Something that that person did raised a red flag.
001041	And then we're wasting FBI resources to track them down and confirm oh wait actually no it's just a Pizza Hut, it's just a school teacher, it's just a guy renting a car.
001051	So I think it's very unclear at this point that this program is doing anything to actually assist in meaningful anti-terrorism efforts.
001100	ERIC GOLDMAN: Yes ma'am?
001101	AUDIENCE QUESTION: I have two small questions.
001103	One I was hoping that you would have gotten more into the email issue and how emails are being intruded upon 
001112	and how they are, you know, what we have to be concerned about who and who is getting into our emails.
001120	That and there were no cases on that or just you mentioned one little statement and not enough information on that.
001126	And second about your statement about pornography, we were all under the impression that the reason why the government did that investigation to Google and others 
001138	is to try to catch child pornography in order to --
001141	KEVIN BANKSTON: Absolutely incorrect.
001143	AUDIENCE QUESTION: In order to do that they had to go after all of it because they weren't careful to make their intent was for the child pornography and that's --
001149	KEVIN BANKSTON: No there is -- 
001151	AUDIENCE QUESTION: (Inaudible).
001152	KEVIN BANKSTON: But that's not what that case was about.
001154	The lawsuit that the government is engaged in is a defense of the Child Online Protection Act which deals with the regulation of harmful to minors' material online
001203	which is material that is constitutional for adults but is not so for minors.
001208	So for example a picture in Playboy is harmful to minors but perfectly legal for me as an adult to look at.
001215	It has nothing to do with child pornography.
001218	The reason the government was seeking that information from Google was it's still kind of unclear.
001224	They're always trying to show the prevalence of porn on the net, trying to get a dataset to test against filters to show that filters are inadequate and that's why we need this law
001235	but it had nothing to do with child porn.
001236	As for email, I mean as I said the allegations in our case are that AT&T is actually providing all of the email on its fiber optic network to the government 
001247	and we suspect that other telecoms are doing the same thing.
001251	AUDIENCE QUESTION: Even now?
001252	KEVIN BANKSTON: Even now.
001253	AUDIENCE COMMENT: How about the freebees on the Internet, the people that have free emails like Yahoo and Hotmail.
001258	BANKSTON: Well they all, regardless of who your email provider is there are only a handful of the large nationwide backbone fiber optic networks that carry that traffic.
001309	So you don't have to bug Yahoo or Google Gmail to get a Yahoo mail or a Gmail.
001316	If you've got the backbone networks covered, you're getting all of it.
001321	And AT&T to clarify, AT&T doesn't just carry its own Internet traffic, its own customers' traffic.
001329	Internet carriers and email companies etcetera have peering agreements such that their traffic is carried over the backbones of other companies.
001335	So when I say AT&T's backbone is compromised that actually means that probably over half of the Internet communications in the country are compromised just by virtue of that.
001346	Not even considering what other Internet and phone companies may have been compromised.
001353	ERIC GOLDMAN: Okay last question, anyone?
001355	Yes sir, oh I'm sorry.
001358	ANN BRICK: I want to make one point, no if you've got a question for him.
001401	ERIC GOLDMAN: Go ahead sir.
001402	AUDIENCE QUESTION: I was going to ask a similar question to that, but a little bit broader.
001407	I can think of two areas where the government can invade on your cyber privacy.
001413	One is emails and the other is search queries.
001416	Is the government still requesting from Google and Yahoo and Microsoft for traffic from those queries and trying new data mining technology to analyze that?
001430	ANN BRICK: What Kevin was talking about was in the context of the particular piece of litigation, but what professor Goldman was talking about and you tied right into the point I wanted to make 
001442	is requests that the attorney general is now making to ISPs to hold on to that kind of information for extended periods of time so that the government can get its hands on it when it wants to.
001455	And the danger is they picked a very appealing topic in terms of making people think oh yes, they ought to hold on to that search information that had to do with child pornography.
001509	But what you need to remember is A, it's not at all clear that that's necessary, and B, once the ISPs have held onto that data for six months or a year or five years
001524	it is there for the government's asking for any other reason as well.
001529	KEVIN BANKSTON: Or civil litigants.
001530	ANN BRICK: Or civil litigants.
001531	So you're creating this very juicy database that's just asking for people to start delving into it.
001543	KEVIN BANKSTON: So as I think I mentioned whether and to what extent the government is getting search terms and under what legal standards we don't know.
001552	Google won't say, the government won't say.
001553	We can only assume -- I'm sorry?
001555	AUDIENCE QUESTION: You said the government was using data mining technology to try to filter out who you would go after based on social networking?
001603	KEVIN BANKSTON: Yes, but whether and to what -- okay so there are two separate issues.
001607	One is the NSA getting it?
001609	And the fact is if our allegations are correct, they're getting everything online.
001615	It's not just email, it's all the communications online.
001618	Your queries to a search engine go across the same networks.
001621	And so the NSA would be getting that data.
001624	As far as law enforcement access to that data or legal foreign intelligence access to that data, we simply don't know.
001630	All of that happens under seal.
001631	And the problem I was talking about earlier is the fact that because that is such an opaque process, we don't even know what legal standards they're using.
001639	AUDIENCE QUESTION: Is it legal for the government to ask for this?
001642	KEVIN BANKSTON: Well no, I mean certainly if it goes with a warrant it can get it.
001647	The problem is we don't know whether they're using warrants or some lower form of process.
001651	ERIC GOLDMAN: Why don't we take this conversation offline, we are out of time.
001654	I do want to thank Ann and Kevin for coming down from San Francisco to share their thoughts.